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TMI Blog2001 (11) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... ree Bankey Bihari Impex P. Ltd. (SBBI involved in the trading and distributors of various products) represented by Mrs. Veena Dhawan r/o 169, Sainik Farms, New Delhi-100062 with the following terms and conditions: - 1. To create infrastructure for the manufacturing of GLUNORM and DbNORM, SBBI will be contributing maximum 50% of the project cost that comes to approx. 6 lacs (As total project cost in ₹ 12 lac with the capacity of 1.5. to 2 lac capsules per month as mentioned by PRPL). In case the project cost comes down, the investment by SBBI will be proportionately as above. The amount of ₹ 1,51,000/- already deposited in PRPL, by Smt. Veena Dhawan, one of the Directors in SBBI, will be adjusted by SBBI against the payment of first supply form PRPL. 2. PRPL will be delivering the first consignment of 1 lac capsules plus free sampling, within a span of two months after receiving the infrastructure investment from SBBI. In case PRPL fails to deliver the required first consignment of 1 lac capsules within the stipulated time frame i.e. 2 months, a penal interest at the rate of 5% per month will be paid to SBBI by PRPL, on SBBI investment, up to date of delivery of firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in future any change and in future any change in the MRP will be mutually decided between PRPL and SBBI. 12. If in any case or situation both the parties are unable to continue this agreement and PRPL continues with the present/future brand/brands of same category. PRPL shall have to pay 5% royalty on its net sales to SBBI perpetually. For this condition to be implemented, this agreement must last for minimum ten years. 13. This agreement will be a perpetual agreement unless annulled b law. 2. It is alleged b the plaintiff that defendants did not adhere to the terms and conditions of the agreement. The defendants were required to supply 5000 capsules, 4500 on Invoice Along with 500 free capsules as samples for market survey within 21 days of signing of the agreement but defendants never sent the said consignments, Further, the defendant had agreed to deliver to plaintiff the subsequent consignment of one lakh capsules Along with 10% free samples under the agreement within two months. But the aid consignment reached the plaintiff on 14th March, 2000 i.e. after a gap of five months from the date of signing of agreements by the parties. It is further alleged that as per the agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from ₹ 12 lacs to ₹ 36 lakhs. plaintiff was pressurized to execute further supplementary agreement dated 14th January, 2000 whereunder plaintiff was to have exclusive selling and marketing rights world over for which plaintiff's contribution to infrastructure/project cost we to the tune of ₹ 18 lacs. plaintiff is alleged to have made the following payments:- 1. ₹ 6,50,000/- 31.1.2000 2. ₹ 2,00,000/- February, 2000 3. ₹ 1,00,000/- March, 2000 4. ₹ 6,40,000/- April, 2000 5. ₹ 1,10,000/- 12th May, 2000 4. Besides, a sum of ₹ 1,51,000/- had already been deposited with the defendants. Thus, plaintiff duly fulfilled even their renewed commitments yet the defendants failed to fulfill their obligations. Under the terms and conditions of agreement, the plaintiff was to have exclusive selling and marketing rights in respect of said capsules but in the month of December, 2000 plaintiff noticed that defendants had started selling/marketing dbNORM capsules in the open market and in open defiance to the agreements entered into between the parties, that too at a lower MRP. plaintiff thereupon sent a legal notice dated 18th January, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sunita Petroleum Ltd who wanted defendant No. 2 to develop new molecules for diabetes. On coming to know this, Mr. Kamal Dhawan approached to defendant No. 2 with the request to induct him in the Board of Directors of defendant No. 2. He Had also offered to purchase 20% of equity of the defendant No. 2. Defendant No. 2 did not agree to the same. Shri Kamal Dhawan as a counter blast started showing complete lack of interest in the Morschella project and went to the extent of expressing his doubts about the whole project and also requested for a refund of the entire advance. The defendant immediately returned the machinery procured by them also raised a bill for ₹ 1,15,400/- towards the work done on the said project but the said bill was not honoured by Shri Kamal Dhawan. In fact, the diabetic molecule formulated by defendants was administered to Shri M.L. Dhawan, father of Shri Kamal Dhawan, who is a patient of diabetes for the last fifty years. This had significantly improved the condition of Shri M.L. Dhawan and he experienced a great sense of wellbeing and comfort. Shri Kamal Dhawan, sensing that this diabetic molecule would have a great market all over the world, approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff was not entitled to import against from `F'. This order was placed in violation of terms of the contract. This fact has been suppressed by plaintiff. The defendants made their first supply of 1,09,800 capsules on 14th March, 2000 and raised an invoice for the same for ₹ 6,75,270/- and an Invoice for ₹ 18,819/- for 3060 capsules. Immediately thereafter defendants supplied 63, 720 Glunorm capsules and raised an invoice of ₹ 3,63,204/- against form `F'. These supplies were made by defendants in the interest of carrying on business despite the fact that deposit of ₹ 18 lacs had not been received by them. plaintiff thereafter made the following payments:- Payment Date ₹ 1,00,000/- 31.3.2000 ₹ 1,00,000/- 06.4.2000 ₹ 3,50,000/- 30.4.2000 7. With these payments, the total deposit amount of plaintiffs comes to ₹ 15 lacs only. On 17th May, 2000 defendants sent an account statement showing the amount of ₹ 10,57,293/- was outstanding against the plaintiff for the material supplied by defendants after duly adjusting the amount of ₹ 1,14,400/- paid by Mrs. Veena Dhawan towards Morschella project. 8. On 12th June, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants again wrote to plaintiffs informing that the deposit account was deficient by ₹ 10.63 lacs and a further amount of ₹ 3.66 lacs had become due for the supplies made on 25th July, 2000. plaintiffs were asked to lift the 4 lacs capsules 'dbnorm' which are lying with defendants which was worth ₹ 22.04 lacs. It was clearly stated in the said letter that if the plaintiff failed to honour their commitments regarding capsule dbNorm by 16th August, 2000, agreement entered into earlier with regard to dbnorm would stand terminated. 10. plaintiff however did not comply with any of the requests made in the fax dated 14th August, 2000. plaintiff has suppressed this letter from the Court. In their reply dated 16th August, 2000 plaintiff raised some issue regarding clinical trial reports only with a view to avoid their obligations under the contract. Defendants thereupon commenced marketing of dbNorm capsules of its own, treating the agreement in respect of dbNorm capsule as cancelled. 11. plaintiff placed an order for supply of 1,50,000 Glunorm capsules. Vide their letter dated 14th November, 2000, defendants informed the plaintiff that the said order was ready si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration to the respective submissions made by learned counsel for the parties in the light of material on record, I am clearly of the view that plaintiff is guilty of suppression of material facts which disentitles him from discretionary relief of injunction. Parties are blaming each other for breach of agreement as is clear from the pleadings. Question as to which party is to blame for breach can appropriately be decided only at the trial. At this stage when the Court has to decide only about grant/refusal of an ad interim injunction, any deliberate attempt on the part of either party to suppress the material facts would disentitle such party for getting such relief. 13. In his plaint, plaintiff has made no reference to the communications contained in defendant's letter dated 12th August, 2000, plaintiff's reply date 14th August, 2000, defendant's FAX message dated 14th August, 2000, plaintiff's reply dated 16th August, 2000, defendant,s letter dated 14th November, 2000, plaintiff's reply dated 16th November, 2000, defendant's letter dated 18th November, and 29th January, 2001 and 6th February, 2001. In particular fax message dated 14th August, 2001 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberately concealing material fact from court is not entitled to any discretionary relief. The Court can refuse to hear such person on merits. In the case plaintiff suppressed the facts that plaintiff had failed earlier suit before subordinate courts in which the relief was not granted. Non-disclosure of this fact was held to be sufficient to disentitle the plaintiff from discretionary relief of injunction. In the case of Wander Limited and Anr. v. Antox India P. Ltd. to was held that usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right arrested by plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverably in the action if the uncertainty were resolved in his favor at the trial. The need for such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Therefore agreements could not be terminated. This arguments cannot be entertained for the simple reason that plaintiff has not pleaded in the plaint that agreements have been terminated and such termination is contrary to law. On the contrary, the plaintiff has come to the Court on the basis that agreements are still in force but the defendants have started marketing and selling the said capsules. When the factual base in not laid in the plaint itself no legal arguments arising there from can be entertained. Besides, absolute and specific enforcement of such contracts will be unconscionable. plaintiff may completely paralyse the business of defendants by not lifting the manufactured stocks and at the same time imposing a restraint on the defendants from selling their own products. In the case of Marti-Baker Aircraft Co. Ltd. and Anr. v. Canadian Flight Equipment Ltd. reported in 1995 II All E L R 722 it was held that although where the character of perpetuity attaches to the legal personality of contracting parties, a contract between them, indefinite in duration, may not be determinable by one party by giving notice of termination, yet that doctrine of permanence either has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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