By consent of the learned counsel on either side, this Civil Revision Petition is taken up for final disposal, at the admission stage itself.
2. This Civil Revision Petition is filed against the ad-interim exparte direction dated 5.1.2009 passed by the learned District Munsif, Tirunelveli, in IA.No.6/2009 in OS.No.12/2009, whereby the petitioners/defendants have been directed to supply Horlicks to the respondent/plaintiff until further orders.
3. The brief facts are as follows:-
The respondent was appointed by the petitioners Company as a dealer for the Palayamkottai area in the the year 1999 and on such appointment, the respondent had deposited a sum of Rs.5,33,300/- on 18.11.1999 being the 1/3rd of the yearly turnover and from time to time, the said deposit had increased to match the business turnover of the respondent. Apart from the deposit, the respondent had also issued 25 blank cheques to the petitioners and the supply of Horlicks to be made by the petitioners to the respondent and the stocks would be replenished by the petitioners, as and when required by the respondent and the respondent would be given 15 days credit period to make the payments. According to the respondent, he has 665 retail customers in Palayamkottai area and had employed 9 employees and 8 daily wage labourers.
4. It is further alleged by the respondent that he has taken a vehicle on a monthly hire of Rs.12,000/- for conducting the business. While so, on 9.12.2008, there has been an incident involving the 2nd petitioner and the respondent, which resulted in stopping regular supply of the Horlicks by the petitioners to the respondent. Therefore, the respondent had filed the above said suit before the court below, contending that the sudden supply of Horlicks by the petitioners had caused hardship and loss to the respondent and accordingly, sought for a judgement and decree, directing the petitioners to supply Horlicks regularly to the respondent.
5. Pending suit, the respondent had filed an application in IA.No.6/2009 to pass an order of interim mandatory injunction directing the petitioners and their men or agent to supply Horlicks regularly to the respondent, till the disposal of the suit and to pass an order of ad-interim injunction to the same effect till the disposal of the said application. The court below had passed an order dated 5.1.2009, directing the petitioners to supply Horlicks to the respondent until further orders, as against which, this Civil Revision Petition has been filed.
6. Mr.Sathish Parasaran appearing for Mr.S.Parthasarathy, the learned counsel for the petitioners on record would submit that the order of interim mandatory injunction granted by the court below without affording an opportunity to the petitioners is ex-facie erroneous and materially irregular, as the rights claimed by the respondent are admittedly not based on any written contract, but only on the alleged business dealings between the parties and would contend that the court below failed to see that in the absence of any right as an agent, the respondent cannot seek to enforce any obligation on the petitioners as a Principal of the respondent.
7. The learned counsel for the petitioners would urge that it is not the case of the respondent that there was any exclusive arrangement between the parties and the court below had proceeded on the erroneous assumption that the only means available to the petitioners to reach the public was through the respondent herein and in fact, the petitioners have been distributing the supply of Horlicks across the State to cater to the demands of the public, including the public in the Palayamkottai and Tirunelveli areas. He would further contend that the distribution structure of the petitioner Company is a matter within the exclusive discretion of the petitioners Company and it cannot be left open to the discretion of the people, such as the respondent, who may or may not form part of the petitioners distribution network.
8. The learned counsel for the petitioners would challenge the impugned order as vague and unclear, causing serious prejudice and hardship to the legitimate business activities of the petitioners Company especially in the absence of any legal right on the part of the respondent. He would submit that even the essential terms such as quantity and varieties of Horlicks to be supplied, periodicity of supply, terms of payment, credit period, etc. are absent in the impugned order and the impugned order has the effect of allowing the manner in which the petitioner Company has to conduct its business to be dictated by the whims of the small traders and suppliers, who in the past may have had some dealings with the petitioners Company which were not contractual. He would urge that admittedly, supply having been stopped in December 2008 itself, the impugned order passed on 5.1.2009 has the effect of antedate, which causes a grave injury and hardship to the petitioners.
9. According to the petitioners, the issuance of interim mandatory injunction in favour of the respondent is unsustainable in law and is contrary to law laid down in the decision of the Honourable Supreme Court rendered in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others [1990-2-SCC-117], and the attention of the court is drawn to paragraph 16, wherein the Honourable Supreme Court has held thus:-
"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally, sated these guidelines are:-
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief."
10. In the case of Metro Marins and another Vs. Bonus Watch CO. (P) Ltd and others [2004-7-SCC-478], the Honourable Supreme Court referring to the decision reported in [1990-2-SCC-117] cited supra, has held thus:- "9. .... As noticed by this Court, in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden, it has held that an interim mandatory injunction can be granted only in exceptional cases coming within the exceptions noticed in the said judgement...."
11. On the other hand, Mr.G.Prabhu Rajadurai, the learned counsel for the respondent would contend that this Civil Revision Petition filed under
Article 227 of the Constitution of India is not only maintainable, but also abuse of process of law, since an alternative effective and efficacious remedy was available to the petitioners, either filing a petition for vacating the injunction under Order 39 Rule 4 of CPC or filing of an appeal before the appellate court and accordingly, prayed for dismissal of this Civil Revision Petition.
12. The learned counsel for the respondent relied on the decision of the Honourable Supreme Court rendered in the case of Sadhana Lodh Vs. National Insurance Company ltd and another [2003-2-CTC-122] in support of his contention that when there is an alternative effective remedy under law available and no extraordinary circumstances is found to be in existence, the question of invoking the powers of the High Court under
Article 227 of the Constitution of India does not arise. He would also rely upon the decisions of this court rendered in the cases of The Director of School Education, Chennai and others Vs. G.Venkatesan [2004-4-MLJ-317], P.Subramanian Vs.M/s.Oriental Insurance Co. Ltd Trichy [2004-5-CTC-718], Manimalan Vs. K.Subrayan [2004-3-MLJ- 80], Ganapathy Subramanian Vs. S.Ramalingam and 23 others [2007-3-LW-515] and M.V.Sachidanandam Vs. Prakash Kumar and others [2007-5-MLJ-629] for the same preposition of law.
13. The facts in the decisions relied on by the learned counsel for the respondent are different and distinguishable from that of the present case on hand, as none of the above decisions cited by the learned counsel for the respondent arises against the grant of exparte interim mandatory injunction passed under Order 39 Rule 3 of CPC. It is no doubt true that in all those decisions cited by the learned counsel for the respondent, it is stressed on the position of law that the power under
Article 227 of the Constitution of India is an extraordinary power and it has to be used most sparingly and it would not be available, when there is an alternative effective remedy of filing an appeal or revision available to the person aggrieved. At the same time, it has be borne in mind that the supervisory jurisdiction under
Article 227 of the Constitution of India could be exercised for keeping the subordinate courts within the bounds of their jurisdiction i.e. In such circumstances, as enunciated by the Honourable Supreme Court, when a subordinate court has assumed jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby. In all those cases, the High Court may step in to exercise its supervisory jurisdiction.
14. The scope of Order 39 Rule 3 of CPC more particularly granting of interim mandatory injunction without giving notice to the opposite party and the effect of the same has been considered in various decisions. An interim mandatory injunction is not a remedy that is easily granted and it is an order that is passed only under circumstances which are clear and prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interest of justice demanded that the status quo ante be restored by way of an ad interim mandatory injunction .
15. In the case of Kishore Kumar Khaitan and another Vs. Praveen Kumar Singh [2006-3-SCC-312], the Honourable Supreme Court has laid down the principles to be kept in mind while passing ad-interim mandatory injunction and it is held thus:-
"13. The jurisdiction under
Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under
Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction....."
16. It is clear from a reading of the provisions under Order 39 Rule 3 of CPC that the party, who invokes the jurisdiction of the court for the grant of an order of interim mandatory injunction without affording an opportunity to the other parties of being heard, must satisfy the court about the gravity of the situation and the court has to consider briefly those factors in the exparte order. While passing such exparte orders, the court should take into consideration of all the relevant factors including the one as to how the object of granting injunction itself shall be defeated if an exparte order is not passed. Further, any such exparte order if should be passed, it shall be noted that the said order would be in force upto a particular date, before which the plaintiff should be required to serve notice on the defendants concerned.
17. Keeping in mind the above said factors and the principles enunciated by the Honourable Supreme Court in the decisions cited supra, it is to be seen as to whether the impugned order can be interfered with by exercise of constitutional remedy under
Article 227 of the Constitution of India.
18. The respondent is a dealer for the supply of Horlicks with the petitioners Company for the Palayamkottai and Tirunelveli areas and admittedly, there is no written contract. On a perusal of the plaint and other averments contained in the pleadings, the terms of the contract are not clear and the legal obligation on the part of the petitioners to continue to supply Horlicks is also not clear. Even the essential terms such as, quantity of supply, varieties of Horlicks to be supplied, the different supply keeping units to be supplied, periodicity of supply, terms of payment, credit period, etc. are not stated precisely. It is not the case of the respondent that the petitioners have unjustly enriched themselves by appropriating sums without supplying Horlicks to the respondent.
19. The learned counsel for the petitioners would contend that the relief in the main suit for directing the petitioners to supply Horlicks regularly is itself without any basis and a similar direction is sought for in the interim application virtually to restore the distributorship by way of interim mandatory injunction. Therefore, he would contend that the court without considering the said aspect has passed the impugned order that too without notice to the petitioners. He drew the attention of this court to
Section 14(1) of the Specific Relief Act and would submit that in this case, it would automatically get attracted, as the contract in this case cannot be specifically enforced, as is in the nature of determinable. He would submit that realising the difficulty in getting an order of interim injunction under
Section 41(e) of the Specific Relief Act, the respondent has abused the process of law by filing the suit and the court below has committed grave error in granting such interim injunction.
20. The learned counsel for the petitioners would place reliance on the decision of the Honourable Supreme Court rendered in the case of India Oil Corporation Ltd Vs. Amritsar Gas Service and others [1991-1-SCC-533], which pertains to the distributorship agreement with Indian Oil Corporation ltd for sale of LPG being one for rendering personal service. The Honourable Supreme Court has held that the contract being determinable,
Section 14(1)(c) of the Specific Relief Act would be attracted and the award of the arbitrator granting the relief of restoration of the distributorship even on the basis of finding that breach of agreement was committed by the Corporation is in contravention of
Section 14(1)(c) of the Act and further held that there was error of law apparent on the face of the award and therefore, grant of that relief in the award was held to be unsustainable.
21. In the instant case, the court below has given some reasons for passing an order of direction to the petitioners to supply Horlicks until further orders, stating that the contract is not terminated and the non supply of Horlicks, a Health Drink has seriously affected the consumers and the public at large. It is not the case of the respondent that the non-supply of Horlicks has seriously affected the consumers and the public at large, but the court below has proceeded on an assumption that the only means available for the petitioners to reach the public was through the respondent, without considering the fact that it is not the case of the respondent that there was an exclusive arrangement between the petitioners and the respondent in that regard.
22. As rightly submitted by the learned counsel for the petitioners, the impugned order does not even specify even the essential terms such as, quantity of supply, varieties of Horlicks to be supplied, the different supply keeping units to be supplied, periodicity of supply, terms of payment, credit period, etc. and such a blanket order passed by the court below would certainly prejudice and cause hardship to the petitioners and the contention of the learned counsel for the petitioners that it causes hardship to the legitimate activities of the business of the petitioners Company merits acceptance. The order of interim mandatory injunction, which is an extraordinary relief in its nature, is not supported by necessary findings of the court below justifying its grant. Therefore, certainly the interim mandatory injunction granted by the court below is not based on clear findings and hence,it does not come under in one of those exceptions, as has been held in the decision reported in [1990-2-SCC-117] cited supra. Even on facts, it is not such a case, which calls for issuance of ad-interim mandatory injunction directing supply of Horlicks to the respondent. That apart, the court below has not mentioned in the impugned order as to from which date supply has to be made though admittedly supply had been stopped as early as in December 2008, but the order is dated 5.1.2009.
23. In the light of the discussions made above, in my considered view the impugned order is liable to be set aside both on law as well as on merits and accordingly, it is set aside and this Civil Revision Petition is allowed. No costs. Consequently, the connected MPs are closed. However, in order to meet the ends of justice, the court below is directed to dispose of the application, on merits, after giving opportunity to the petitioners and in accordance with law, as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order.
Srcm To:
The District Munsif, Tirunelveli