' C. M. A. No, 4820/79
(a) In the above suit the plaintiff has claimed reliefs in the form of declaration, permanent injunction and in the alternative damages amounting to Rs, 1,39,40,889.56, etc. The facts leading to the filing of the above suit are that the defendant had appointed the plaintiff as the general sales agent for its international commercial airlines for Pakistan under an agreement dated 29th January 1973. In pursuance of the above agreement, according to the averments in the plaint, the plaintiff invested about Rs, 40 lacs and also established the business of the defendant in Pakistan. It appears that the defendant through a letter dated 8th July 1979, purported to terminate the above agreement under Article 20 of the agreement (Annexure C-1 to the Plaint). It has been averred that in response to the above notice the plaintiff made representations and had also personal discussions inter alia at Cairo. It has been further averred that the above termination was mala fide, illegal, invalid and there was an implied agreement on the part of the defendant not to terminate the agreement for a reasonable length of time commensurate with the plaintiff's efforts, endeavours and investment and/or not to terminate the agreement mala fide and/or arbitrarily, and that the agency should reasonably continue for a period of ten years at least from the date of commencement of actual business in 1976.
(b) It seems that the plaintiff's representations and the efforts to arrive at an amicable settlement with the defendant did not bring any result On the other hand, the defendant through its letter dated 11th September 1979, (Annexure C-2 to the Plaint) reiterated its stand and has averred that the termination of the agreement is as per terms of the agreement Consequently, as the period specified in the termination notice is about to expire on 31st December 19'9, the plaintiff has filed the present suit o 17th December 1979. Along with the suit the plaintiff has filed a application under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. Wherein the plaintiff has prayed as follows :- "It is prayed on behalf of the Plaintiff above-named that for the reasons disclosed in the accompanying affidavit and in the plaint in suit this hon'ble Court be pleased to grant and issue a temporary injunction restraining the defendants their Manager's officers agents and servants from giving effect to the notices of termination dated 8th July 1979 and dated 11th September 1979, (Annexures C/1 and C/2 and further be pleased to restrain the defendants their Manager's officers agents and servants from interfering, preventing or obstructing the Plaintiff carrying on the business and operations as the General Sales Agent of the defendants in Pakistan pursuant to and under the GSA Agreement dated 29th January 1973 (Annexure 'A') pending the hearing and final disposal of the above suit.
(2) It is further prayed that pending the hearing and final disposal of the above suit this hon'ble Court be pleased to suspend/stay the operation of the aforesaid two notices of termination.
(3) It is further prayed that this Hon'ble Court be pleased to restrain the defendants their Manager's officer agents and servants from selling transferring, disposing, removing, alienating or parting with possession of their assets and properties including machines, fixtures, fitting bank balances, cash, cars vehicles, etc. From the jurisdiction of this Hon'ble Court to the extent of the plaintiff's investment in the business as General Sales Agent under the Agreement Annexure 'A' and/or from carrying on sales business in Pakistan and/or from awarding the sales agency/business to any other person pending the hearing and final disposal of the suit and direct the defendants to deposit the said amount in this hon'ble Court.
(4) It is furthei prayed that pending the hearing and final disposal of this application ad interim orders be passed in terms above.'
2. (a) The above matter was placed before my learned brother Naimuddin; J. On 17th December 1979, when his Lordship declined to hear the matter, the above case was placed before me 1 instead of passing any ex parte an ad interim order ordered the issuance of a notice to the defendant for today. From the bailiff's report, it appears that the defendant has been served with the notice of the injunction application yesterday but no body has turned up since morning though the case has been called out several times, and now it is 11-45 a. m.
(b) It has been inter alia urged by Mr. Shariluddin Pirzada that though in the agreement the period for the termination of the agency agreement was provided in schedule in para. 6 as 60 days, but in view of the huge investment made by the plaintiff and the efforts put in by him in establishing the business he was entitled in any case to a reasonable notice and not 60 days notice. In support of his above contention he has referred to the case of Martin Baker Aircraft Ltd. And another v.
Canadian Flignt Equipment Ltd. (1) wherein the subject-matter of the {{FOOT NOTE}}
(1) (1955) 2 Q B 556 {{FOOT NOTE}} interpretation was an agreement dated 26th August 1951, whereby the plaintiffs granted to the defendants, al Canadian Company, the right to manufacture, sell and exploit all their products in the American continent. Clause (iv) of the aforesaid agreement provided that "without prejudice to any other remedy which either party may have against the other for the breach or non- observance of the provisions of this agreement either party shall be entitled summarily to determine this agreement". While interpreting the above clause it was held by Monir, J. That the right to determine summarily under the aforesaid clause does not stand in the way of a decision that the agreement as a whole is determinable on reasonable notice and that 12 months notice would have been reasonable in the circumstances of the case. Mr. Sharifuddin has also referred to the case of London Borough of Hounslaw v. Twickhenham Garden Developments Ltd. (1) and has urged that even a licence becomes irrevokable. In the above case the question for consideration before Magarry, J. Was as to whether the architect was entitled to terminate the licence in favour of the contractor to enter upon the building site and to carry out the construction. It was held that the licence given to the contractor to carry out the work on the site was not a separate entity but was created by and formed part of the contract. It was by its term irrevokable in that there was an implied obligation on the Borough not to revoke it while the period of the contract was running and equity would not assist Borough to revoke the Licence in breach of its contract.
(c) It has also been urged by the learned counsel for the plaintiff that as the defendant has not turned up in spite of the service of the notice of the application and as the plaintiff has made out a prima facie case an ad interim injunction be granted as prayed. Without expressing as to whether the plaintiff has made out any prima facie case. It will suffice to observe that the contention that there was an implied negative covenant not to terminate the agreement in question without a reasonable notice notwithstanding an express term providing a period of 60 days appears to be somewhat an ingenious argument, which requires further examination, However, I am not inclined to grant the above application as prayed for but would order the maintenance of status quo till further order with the direction that a fresh notice with a copy of this order for the hearing of the above application (C. M. A. No, 4820/79) be issued to the defendant for a date in office as the Court would be closed for its winter vacation from 24th December 1979. But the defendant shall be at liberty to apply under Order XXXIX, rule 4, C. P. C. Even before the date of hearing of the above application. {{FOOT NOTE}}
(1) (1970) 3 All E R 326 {{FOOT NOTE}}