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TMI Blog1997 (2) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... der 23.5.94 which was made absolute on 1.3.95. Under the impugned-order dated 1.10.96, the learned Single Judge held that the relationship between the appellant and the respondent was not that of sub-tenant and tenant respectively but was that of Agent and Principal. The transferred Suit No. 997 of 1996 Filed by the appellant for permanent injunction was dismissed. But I.A. 4480/96 Filed in that suit by the defendant-respondent against the appellant after transfer of the suit to the High Court for removal of the appellant's furniture and unsold stock and decorative material from the shop was allowed. Similar application, namely, is 2417/96 Filed on 11.3.96 by defendant against appellant in Suit No. 264/94 before the transfer of the suit to the High Court was also allowed. I.A. 4442/996 Filed by the owners (i.e. landlords of the defendant-respondent) for impleadment was also dismissed. Fao 231/96 (being M.C.A. 1129/94 on transfer) Filed by the plaintiff-appellant was also dismissed. Against the common order dated 1.10.1996, of the learned Single Judge, this single appeal has been Filed by the plaintiff. There was some dispute as to how there could be a single appeal or at any ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h to month). The fact that the appellant registered itself under Delhi Sales Tax Act and Central Sales Tax Act or under Income Tax Act giving address at the premises No. E-27, Connaught Place was irrelevant tenancy cannot be created by an unilateral act of the appellant. The respondent is also registered under Delhi Sales Tax Act and Central Sales Tax Act and has been paying sales tax in respect of sales conducted by respondent. The Agency agreement expired on 31.3.1995 and appellant was asked to remove the goods. There was no question of taking forcible dispossession inasmuch as appellant had no possession. The respondent was in exclusive possession and control of the premises. The appellant-principal was not required to conduct business nor did they, in fact, conduct any business. Appellant was merely supplying goods to respondent (Agent) and respondent was selling the same. Appellant is bound to remove his goods on expiry of the agency agreement. The learned Single Judge came to the conclusion that the agreement was one of Agency and not one of tenancy, that appellant was estopped from pleading tenancy. Learned Judge noticed that the claim of the respondent was that the average ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the relationship could not be as Principal and but was one of tenant and landlord. Learned counsel for the respondent has contended that the document is an Agency agreement and that appellant is estopped from contending to the contrary. It is also pointed out that in the second suit i.e. under Section 20 Filed by the appellant, Suit No. 885/94, there was an interlocutory order dated 1.3.1995 recognising prima facie possession of appellant but on appeal, the same was set aside by the Supreme Court in SLP(C) No. 10466 of 1995 on 2.11.1995, and that the said order of the Supreme Court operates as res judicata and is also binding on this court. The entire expenses are borne by the respondent including telephone, electricity, staff salaries etc. and not by the appellant. On the basis of the above contentions of the counsel, the following points are for consideration: (1) Whether the appellant was precluded from contending (a) that the agreement was one of tenancy and not of agency or (b) that the deed is a sham or camouflage as between parties but was implemented so far as third parties were concerned? (2) Whether on a proper construction of the agreement, the deed was in substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices and the vouchers show the real nature of the business and are in conformity with the agreement of agency. Hence, the Local Commissioner's report cannot help the appellant. We Therefore hold that the appellant is precluded from contending that the deed of Agency was a sham document and that it was a tenancy agreement. Hence this point I is held against the appellant. Point 2: We shall now deal with the question whether the document is, in substance, a lease or agency. We shall have to refer to the various clauses in the deed. Clause 2 contemplates appellant principal) supplying goods to respondent (agent); clause 3 says respondent will conduct agency-business under the name 'Liberty' in conjunction with respondent's name 'Jakki Mull Sons' and respondent will not use the name 'Liberty' independently; clause 4 says respondents can use their remaining part of business without prejudicing the sale products of appellants; clause 5 says appellant (principal) will provide furniture; clause 6 says the staff to be employed by respondent are to be initially screened by appellant and respondent jointly; respondent shall have exclusive right to remove the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ensure proper maintenance of show room, proper sales men are engaged by respondent and sales by respondent-agent are conducted effectively. Clause 20 says: That in the event of a breach of the terms and conditions contained herein, both parties shall be entitled to terminate this Agreement. Clause 21 provides that on expiry of term of agreement, appellants-principals shall be allowed to remove their furniture decoration etc. If respondents-agents were to terminate the agreement before expiry of term, the respondents shall pay appellants the sum advanced and spent by appellants - principals. on furnishing.' If appellants revoke the agreement in the middle, appellants shall pay the consolidated commission in lump-sum for the unexpired portion. Till the appellants pay the same, respondents need not return the fittings and stocks, clause 22 is very important and deals with possession being with respondents-agents. It reads as under: Clause 22: That is a term of the Agreement that the Agents (i.e. respondents) would remain in exclusive possession and control of the premises in question to the complete exclusion of the Principals (i.e. appellants) at all times. No clause of this Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusive possession has to be drawn by reading all the clauses. But where there is a specific clause dealing with the question as to who is or is to be deemed or not to be deemed to be in possession, there is no need to have resort to all other clauses the document. Applying the above principle, we find that there is a specific Clause, namely Clause 22, staling that the exclusive possession will be with the Agent (respondent) and also that the Principal (Appellant) shall not be deemed to be in possession because of any other clause or clauses. In such a situation, it is, in our opinion, not a matter for construction or inference of possession to be drawn from other clauses. It is a case where it is said that appellant (Principal) is not to be deemed to be in possession. The latter part of clause 22 in fact, reads: Clause 22............ No clause of this Agreement would deem to confer any such right (i.e. as to exclusive possession) on the Principals (i.e. appellants) at any time. and the said clause, in our view, puts the matter beyond all controversy and precludes any argument to the contrary by the appellant-principals based on other clauses of agreement. If, Therefore, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atus quo order was granted on 19.4.1994. This appeal was transferred to High Court as Fao 231/96. Meanwhile, appellant also filed the other suit 885/94 under Section 20 of the Arbitration Act in this Court and obtained an interim order, in the nature of a temporary arrangement on 23.5.94 as follows: Counsel for the plaintiff states that they have been tendering money payable every month to the defendant, but the defendant has not been accepting since the filing of the suit. Mr. Malhotra states that the defendant, who has been all along in possession of the suit premises and in fact the employees are his employees and he is paying their salaries and all out goings of the staff, which are reimbursed by the plaintiff under the impugned agreement. Be that as it may, I direct that the plaintiff should pay to the defendant in the manner he was paying under the agreement dated 31.3.1994 and this payment shall be without prejudice to the rights and contentions of both the parties. The defendant will have a right to take daily account of the daily sales to enable him to know as to what amount is payable to him. The defendant shall continue to enjoy all rights, which are provided for under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to High Court as FAO). Meanwhile, appellant filed Suit No. 885/94. in High court and obtained interim arrangement order dated 23.5.94 which was modified on 1.3.95 but the latter was set aside by. Supreme Court on 2.11.95. As on 1.10.96, when the is 2417/96 was filed in- Suit 264/94 before transfer and is 4480/96 was filed in same suit after transfer to this court by the defendants for removal of furniture, stock or decorative material, it is obvious that the stock must have been stock brought in after suit and before 1.10.96. Directions issued in the IAs in favor of defendant against plaintiffs to remove such stock in question is, in our view indeed an order in the nature of restitution under Section 151 Civil Procedure Code. So far as the furniture and decorative material is concerned, their removal is incidental to the other directions given, further when suit 885/94 is withdrawn, appellant could not have retained any benefit obtained by interim orders. In any event, there is sufficient legal authority that in certain exceptional circumstance, a defendant can obtain an injunction against a plaintiff. This principle sometimes is applied in our country to interim injunctions i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 812, both plaintiff and defendant relied upon the same agreement, and it was held that defendant was entitled to apply for an injunction against the plaintiff. In that case, the plaintiff who was the owner of a business of running a hotel appointed defendant as trustee and executed a deed of arrangement describing the defendant as trustee to pay the plaintiffs creditors and agreed to occupy the lease hold house as manager. Later the defendant terminated the plaintiffs services as manager and requested plaintiff to leave the premises. The plaintiff sued for a declaration that he was to be continued as manager and sought for injunction, damages etc. Defendant, gave notice of motion against plaintiff to restrain plaintiff from remaining in or upon the hotel and not to interfere in the management. plaintiff contended that the defendant's request was in ejectment and could not be granted in plaintiffs suit for injunction. Buckley J. applied Carter vs. Fey(1894)(2) CR. 541 while holding plaintiff has no right to continue in occupation or retain possession held: What is the defendant's cause of action? It is identically the same thing from the opposite point of view. He negatives ..... X X X X Extracts X X X X X X X X Extracts X X X X
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