Kamlesh Trading Company Through Its Authorized Seller Shri Babu Singh v. Aasu Khan S/o Moomra
2021-05-11
DILIP KHANDELWAL, PRAKASH GUPTA
body2021
DigiLaw.ai
JUDGMENT : 1. This writ petition under Article 227 of the Constitution of India has been filed by the petitioner-plaintiff (for short, ‘the plaintiff’) against the order dated 10.12.2020 passed by Addl. District Judge, Laxmangarh, Distt. Alwar (for short, ‘the Appellate Court’) in Civil Misc. Appeal No. 06/2020, whereby the appeal filed by the respondents-defendants (for short, ‘the defendants’) has been allowed and the order dated 29.10.2020 passed by Civil Judge, Laxmangarh, Distt. Alwar (for short, ‘the Trial Court’) in Civil Misc. Case No. 22/2020 granting temporary injunction in favour of the plaintiff, has been set-aside. 2. Facts of the case are that the plaintiff filed a suit for permanent injunction against the defendants. Alongwith the suit, an application under Order 39 Rule 1 and 2 CPC seeking temporary injunction was also filed. The Trial Court vide its order dated 29.10.2020 granted temporary injunction in favour of the plaintiff. The defendants filed a Civil Misc. Appeal. The Appellate Court vide its order dated 10.12.2020 allowed the appeal and set-aside the order dated 29.10.2020 passed by the Trial Court. Hence, this writ petition. 3. Learned counsel for the plaintiff submits that the plaintiff was appointed as authorized and exclusive Distributor of Varun Beverage Ltd. (for short, ‘the Company’) for buying and selling promoting the products of Pepsi Brand in Laxmangarh, Distt. Alwar and distribution rights of M/s. Zuber Cold Drinks, Proprietor of which was Ashu Khan were terminated w.e.f. September, 2018. Accordingly, on 4th November, 2019, a Distributorship Agreement was entered into between the Company and the plaintiff and areas in Laxmangarh, Distt. Alwar were prescribed, where only the plaintiff could sell the products of the Company. He further submits that the trial court granted injunction in favour of the plaintiff, but the appellate court set-aside the same in an arbitrary and illegal manner. He further submits that the scope to interfere in the discretionary order passed by the Trial Court is very limited. The appellate court cannot interfere with the discretionary order passed by the trial court, unless the order passed by the trial court is arbitrary, perverse or is not based on sound legal principles. In support of his contentions, he has placed reliance on the following judgments: U.P. Cooperative Federation Ltd. Versus Sunder Bros..
The appellate court cannot interfere with the discretionary order passed by the trial court, unless the order passed by the trial court is arbitrary, perverse or is not based on sound legal principles. In support of his contentions, he has placed reliance on the following judgments: U.P. Cooperative Federation Ltd. Versus Sunder Bros.. Delhi reported in AIR 1967 Supreme Court 249 Lakshminarasimhiah and others Versus Yalakki Gowd reported in AIR 1965 Mysore 310 Smt. Vimla Devi Versus Jang Bahadur reported in AIR 1977 Rajasthan 196 4. On the other hand, learned counsel for the defendants has defended the impugned order and submits that the defendants have a right to trade, which cannot be restricted by the plaintiff. He further submits that the defendants were not party to the distribution agreement and therefore, they are not bound by the terms of the said agreement. If restrictions are imposed on the right to trade of the defendants, it would tantamount to ‘restrictive trade practice’. He further submits that since the Trial Court’s order was arbitrary, capricious and perverse and not legally sustainable, the appellate court was right in allowing the appeal and quashing and setting-aside the same. He further submits that if there is sufficient material available on record, then the appellate court can interfere with the discretionary order passed by the trial court. 5. Heard. Considered. 6. The trial court vide its order dated 29.10.2020 found prima-facie case in favour of the plaintiff on the ground that there was no document on record which could show that the defendants no. 1 and 2 were the authorized distributor of the company. The Appellate Court while allowing the appeal and setting aside the order passed by the Trial Court, vide its order dated 10.12.2020 observed that from GST Certificate and Food Safety License, it was clear that the defendants no. 1 and 2 (appellants therein) purchased the goods from different firms through E-Bill and paid the GST through Tax Invoice and thus the plaintiff had utterly failed to establish prima-facie case in his favour. 7. In the case of Raymond Woollen Mills Ltd. and Ors.
1 and 2 (appellants therein) purchased the goods from different firms through E-Bill and paid the GST through Tax Invoice and thus the plaintiff had utterly failed to establish prima-facie case in his favour. 7. In the case of Raymond Woollen Mills Ltd. and Ors. Versus Director General (Investigation and Registration) and others reported in AIR 2009 SC 399 , Hon'ble Apex Court held as under: "The Court would be justified in passing the order on alleged restrictive trade practice only when it is "prejudicial to public interest" under Clause (h) of Section 38 (1) of the MRTP Act. The pre-condition for passing such an order is that the restriction as imposed directly or indirectly when restricts or discourages competition to any "material degree" in any trade or industry, then only it would be considered as "prejudicial to public interest". 8. In view of the fact that the defendants were not party to the Dealership Agreement, they were not bound by the terms of the said agreement agreed to between the plaintiff and the Company, and therefore, their right of trade and business cannot be curtailed. 9. Since the material documents viz. GST Certificate and Food Safety License available on record were not considered by the trial court, the appellate court rightly set-aside the trial court's order being arbitrary, capricious and perverse and correctly allowed the appeal filed by the defendants. I am in agreement with the finding arrived at by the appellate court in its order dated 10.12.2020. 10. So far as the judgments relied upon by learned counsel for the plaintiffs in the case of U.P. Cooperative Federation Ltd. (supra), Lakshminarasimhiah and others (supra) and Smt. Vimla Devi (supra), referred to above are concerned, the same do not apply to the facts of the instant case. It is trite law that the appellate court should not interfere with the discretionary order passed by the trial court but it is also true that the appellate court can interfere with the discretionary order passed by the trial court, if the trial court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles. 11. This writ petition has been filed under Article 227 of the Constitution of India.
11. This writ petition has been filed under Article 227 of the Constitution of India. The power under Article 227 of the Constitution is to be exercised in cases of jurisdictional error, apparent perversity, patent illegality or manifest injustice, which is not the situation here in this case. 12. I find no force in this writ petition and the same being bereft of any merit, is liable to be dismissed, which stands dismissed. 13. Consequent upon the dismissal of the writ petition, ex-parte interim order dated 18.12.2020 is vacated and the stay application and all pending applications, if any, stand dismissed accordingly.