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2014 DIGILAW 299 (ORI)

Bharat Nath v. Suryakanta Jaypuria

2014-05-02

RAGHUBIR DASH

body2014
JUDGMENT RAGHUBIR DASH, J. 1. This appeal is against the order dated 4.10.2012 passed by the learned Civil Judge (Senior Division), Jagatsinghpur in I.A. No. 28 of 2010 arising out of C.S. No. 23 of 2010 dismissing the plaintiff-petitioner’s petition under Order 39 Rules 1 and 2 read with Section 151 of the C.P.C. 2. The appellant is the plaintiff-petitioner and the Respondent is the Respondent No.1 opposite party before the learned lower court. 3. The case of the Plaintiff-petitioner is that he and defendant No.17, Sisir Nath, are the proprietors of M/s. Babamani Agency which had been carrying on the business of distribution of products of M/s. Tripty Drinks Pvt. Ltd. in the undivided Cuttack District since 1992. In course of such business there were mistakes in the accounts of the Respondent. The Respondent did not make payment of agency commission, transportation charges etc. So, the Appellant wanted details of the accounts from the Respondent. After several correspondences when the Appellant could not get the details of accounts he was forced to file the suit for settlement of the accounts. Since the Appellant apprehended that due to filing of the suit his agency would be terminated and he would not be allowed to carry on the business with the Respondent’s Company, he filed the petition under Order 39 Rules 1 and 2 read with Section 151 of the C.P.C. The specific case of the plaintiff-appellant is that on 25.01.2012 the Respondent refused to supply products of M/s. Tripty Drinks to the Appellant. 4. The Respondent-opposite party’s stand is that the suit as well as the I.A. is not maintainable in the eye of law and the Appellant has no cause of action to file the suit. There is no business link between the Appellant-Bharat Nath and the Respondent. However, it is admitted that M/s. Babamani Agency was the distributor of the products of M/s. Tripty Drinks Pvt. Ltd. The distributorship has duly been terminated on 01.02.2010. Since the appellant is not the distributor of the Respondent, there is no question of supply of the products to the appellant during pendency of the suit. It is also contended that no case is made out that the appellant would suffer irreparable loss if the interim injunction is not granted in his favour. 5. Since the appellant is not the distributor of the Respondent, there is no question of supply of the products to the appellant during pendency of the suit. It is also contended that no case is made out that the appellant would suffer irreparable loss if the interim injunction is not granted in his favour. 5. Considering the submissions made on behalf of the parties, the learned lower court observed that the appellant and proforma defendant No.17 are the proprietors of M/s. Babamani Agency which is the distributor of the products of M/s. Tripty Drinks Pvt. Ltd. in the district of Jagatsinghpur. But the learned court below has taken exception to the facts that the appellant did not produce any documents to show that M/s. Babamani Agency was the distributor of M/s. Tripty Drinks Pvt. Ltd. that instead of M/s. Babamani Agency the appellant Bharat Nath, in his individual capacity, has filed the suit as well as I.A. that M/s. Tripty Drinks Pvt. Ltd. has not been impleaded as a party to the suit, that the contract entered into by proforma defendant No.17 with the Respondent in the year 1992 has not been produced and that the distributorship has been duly terminated on 1.02.2010. Taking such exceptions the learned lower court concludes that the appellant has got no good prima facie case and the balance of convenience does not lean in his favour and he would not suffer irreparable loss if the interim injunction is refused. As a result, the prayer for interim injunction has been refused. 6. The impugned order has been challenged on the grounds that without referring to the documents produced by the appellant the learned court below should not have held that the appellant failed to produce any materials showing that M/s. Babamani Agency was the distributor of M/s. Tripty Drinks Pvt. Ltd. more so when the Respondent admitted the said fact in his written statement. It is also contended that non-production of the contract of the year 1992 is not fatal to the case of the appellant in as much as the Respondent has admitted that M/s. Babamani Agency was the distributor of M/s. Tripty Drinks Pvt. Ltd. It is claimed that the agreement has been destroyed due to flood. It is also contended that non-production of the contract of the year 1992 is not fatal to the case of the appellant in as much as the Respondent has admitted that M/s. Babamani Agency was the distributor of M/s. Tripty Drinks Pvt. Ltd. It is claimed that the agreement has been destroyed due to flood. It is also submitted that it was only after filing of the suit on 02.02.2010 the letter showing the termination of the Agency w.e.f. 01.02.2010 was issued and sent by registered post on 03.02.2010 which indicates that the Agency was terminated soon after filing of the suit. As regards the proper representation of the firms, namely, M/s. Babamani Agency and M/s. Tripty Drinks Pvt. Ltd. it is contended that those have been properly represented and the learned court below should not have taken exception to such technicalities while considering a petition under Order 39 Rules 1 and 2 read with Section 151 of the C.P.C. 7. The Respondent reiterates the grounds taken by him on the maintainability of the suit. It is further contended that when the respondent-opposite party has denied the distributorship, the Appellant-petitioner is to make out a prima facie case by producing reliable documents. It is further contended that the distributorship having already been terminated the appellant-petitioner is not entitled to the interim relief prayed for, more so when there is no business link between the Respondent and the Appellant. 8. It is rightly submitted by the learned counsel for the appellant that in view of the admitted position that M/s. Babamani Agency was the distributor of the product of M/s. Tripty Drinks, non-production of any document showing the existence of such distributorship is not very much material. For the said purpose, non-production of the contract of the year 1992 is also not fatal to the appellant’s case. As regards proper representation of the firm M/s. Babamani Agency, it is to be stated that the firm is a proprietorship firm and out of two proprietors one is plaintiff-appellant and the other is proforma defendant No.17. It is claimed that M/s. Babamani Agency is a proprietorship firm and defendant No.17 is its sole proprietor. But, some of the documents filed by the appellant reflect that M/s. Tripty Drinks had admitted the plaintiff to be the proprietor of M/s. Babamani Agency. It is claimed that M/s. Babamani Agency is a proprietorship firm and defendant No.17 is its sole proprietor. But, some of the documents filed by the appellant reflect that M/s. Tripty Drinks had admitted the plaintiff to be the proprietor of M/s. Babamani Agency. Order 30 Rule 10 CPC is applicable to any person carrying on business in a name or style other than his own name. As per that provision, such a person can be sued in such other name or trading name. But, if such a person himself brings the suit it has to be brought in his own name and not in the name of the business concern. Therefore, the appellant has rightly filed the suit making himself the plaintiff and not in the name of the firm. 9. As regards non-impletion of M/s. Tripty Drinks as a defendant in the suit, it is to be stated that the respondent and his son are arrayed as D.1 and D.2 in the suit as owners of M/s. Tripty Drinks. It is not shown that the said firm is a partnership firm. So, it appears, M/s. Tripty Drinks is also a proprietorship firm. As per provision of Order 30 Rule 10 CPC, the plaintiff could have sued the business concern in the name of the firm but instead of doing so, he has sued the owners or the proprietors of the firm. The provision of Order 30 Rule 10 CPC merely enables the proprietor of a proprietary business to be sued in the business name of the proprietary concern. But the real party who is being sued is the proprietor of the said business concern. No authority is cited showing that the proprietor of a proprietary concern cannot be sued in his or her own name. So, at this stage non-impletion of M/s. Tripty Drinks as a defendant should not have weighed heavily with the Court. 10. Now let it be examined whether the three essentials for grant of interim injunction are available or not. The suit is basically for rendition of account. The suit is filed on 2.2.2010. It is alleged that with effect from 25.1.2012 the respondent refused to supply the products of M/s. Tripty Drinks to the appellant for distribution. According to the respondent the distributorship stood terminated with effect from 1.2.2010. The suit is basically for rendition of account. The suit is filed on 2.2.2010. It is alleged that with effect from 25.1.2012 the respondent refused to supply the products of M/s. Tripty Drinks to the appellant for distribution. According to the respondent the distributorship stood terminated with effect from 1.2.2010. The terms of the contract with regard to the distributorship are not made available to the Court. The contract must be having terms with regard to the determination of the contract. There cannot be specific performance of a contract which by its own terms is revocable at the will of a party thereto. In such a case the Court should not prevent a person from doing something which under the terms of the contract, it is lawful for him to do. When the contract has already been revoked by the respondent, any loss to be suffered by the appellant can be compensated by way of damages. It is not a case where the appellant would suffer irreparable injury if no temporary injunction is granted in his favour. Continuation of the distributorship during the pendency of the suit cannot be specifically enforced. Therefore, an interim injunction should not be issued to prevent the breach of such a contract. 11. For all these reasons, it cannot be said that the balance of convenience tilts in favour of the appellant, that he would suffer irreparable injury if no interim relief is granted in his favour and, that he has got a prima facie case for compelling the respondent to supply products of M/s. Tripty Drinks to the appellant for an indefinite period. Therefore, the appellant is found to be not entitled to the relief he has sought for. 12. In the result, the order of refusal to grant temporary injunction which is impugned in this appeal is found not liable to be set aside. Accordingly, the appeal stands dismissed.