CMAs Nos, 2288/17, 6533/2017, 5025/2017, 3438/2017 and 3436/2071.
MAHMOOD AHMED KHAN J.----The pending applications have been heard and by this order only the applications under Order XXXIX rules 1 and 2 filed by the plaintiff are being decided the same include those filed in Suit Nos,407, 426 and 427 of 2017 (wherein interim orders have since been passed) as well as in the other two cases bearing Nos, 879 and 1063 of 2017 (wherein no interim orders have yet been passed on the injunction applications) between the same parties for the different contracts including their sister concerns and business associates, with variations as agitated therein which however are not material and relevant for these applications. On account of similarity all the applications were heard together and so also are decided by this single order.
2. Three of the cases are titled for delectation and permanent injunction whereas two also include damages. The background of the dispute as stated in the pleadings of the plaintiffs who is said to be dealing in courier and associated businesses claim to be renowned companies in this regard, owned and managed by the family of Late Mr. Jawaid Latif who is also said to be a renowned personality of this business, been an exclusive agent of the defendant TNT and predecessors-in- interest of the defendants since 1980. The said Late Mr. Jawaid Latif is also said to have been a renowned leader for providing courier service in Pakistan and internationally. It is further contended that prior to 1980 on account of exhaustive efforts develop the postal and courier service activities in Pakistan he was regarded as a pioneer of courier service having endeavored and was responsible for establishing one of the first international courier companies in Pakistan as Skypak - International (S) Pte Limited ("Skypak International") in 1980. That on 18-11-1980 through its holding company, Skypak International and Jawaid Latif executed an agreement which among others provided (i) Skypak International shall enter into a joint venture agreement to form a private limited company to carry on the business of international document couriers and related activities
(ii) the parties would jointly incorporate Skypak International (Pakistan) Limited ("Skypak Pakistan") with 51% and 49% shares with Jawaid Latif and Skypak International respectively (iii)
Jawaid Latif 'would obtain all permissions and licenses for the intended business and (iv) pending the formation of joint venture company and acquisition of share, Jawaid Latif would act as agent of Skypak. International. That the clause 8 of the said agreement provided "investment of operation prior to Pakistan Government's approval of the joint venture will be provided by Mr. Latif. When the joint venture has been approved a balance sheet for the preliminary operation will be prepared and audited. This balance sheet will show Mr. Latif total investment to this stage and Skypak International will pay Mr. Latif an amount representing 49% of this investment. Share certificates will then be issued. " That pursuant to this agreement in 1980 Jawaid Latif incorporated Skypak International Pakistan on 23-12-1980 obtained approval from various regulatory authorities including Ministry of Finance and State Bank of Pakistan for remittance to Skypak International. The novel nature of the courier service at the time forced Jawaid Latif and the plaintiff to face hurdles at every turn as, the postal delivery was within the exclusive domain of Pakistan Post Office. Finally on account of efforts of Jawaid Latif on 30-11-1981 Ministry of Industries accorded permission to Skypak Pakistan to undertake courier service in Pakistan by which operation Skypak Pakistan resulted to exceptional returns for Skypak International over the next decades and in 1990 due to tireless efforts of saved Latif Pakistan Banking Council on 16-1-1990 directed commercial banks in Pakistan to use its courier service. It is further contended that in order to revive its commitment of joint venture as exclusive in 1980 and an agreement on 29-2-1992 TNT Express worldwide a sister concern of the successors-in-interest of Skypak International made number of proposal to develop relationship in Pakistan (i) TEW would incorporate a new company in Pakistan with Jawaid Latif as Executive Director or (ii) TNT Express Worldwide would designate a company, which would enter into a management service agreement with Skypak Pakistan, and the letter would be liable to share profits with the TEW's designated company; or (iii) TEW designated company mod Skypak Pakistan would enter into a joint venture and incorporated a new company. In this model, the proposal specified that TEW's designated company would own`51% of shares in the ilex, company whereas Skypak Pakistan or Jawaid Latif would own the remaining shares depending on capital, contribution. The parties entered into protected correspondence thereafter and took serious steps towards a joint venture company. Specially on 15-7-1992, TEW proposed that its representatives visit Pakistan to finalize contracts, business plans and budgets for the joint venture company over the coming months. Despite these efforts the joint venture company between the parties was not finalized. That Skypak group globally with TNT Skypak Pakistan has undergone a series of name changes, to TNT Skypak International (Pakistan) (Private) Limited, then to TNT Express Worldwide Pakistan (Pvt.) Limited and ultimately to the plaintiff's current name. In August, 1999, TNT Courier Holdings (Pty) Limited the successor-in-interest of Skypak International and TNT Holdings BV entered into a Novation Agreement. Novation agreement inter alia provided that (i) TNT Holdings will acquire the rights and obligations of Skypak international in 1980 Agreement and (ii) the plaintiff would exclusively provide international distribution services on behalf of TNT Holdings in Pakistan. In view of the fact that the joint venture company between the parties was not earlier concluded, therefore, in order to compensate the plaintiff for operations since 1980 as committed in clause 8 of the 1980 agreement, the parties agreed to expand on the 1980 agreement by executing two further agreements with the plaintiff. That during his lifetime the plaintiff was wholly owned by Jawaid Latif and his immediate family, and subsequent to his death, continues to be owned by them. First, on 1.1.2005, the plaintiff and the Defendant entered into an Inbound Outbound Services Facilities Agreement. The 2005 agreement, inter alia, provides that the plaintiff will provide services for the linehaul and delivery of the Defendant's international time certain express consignment destined for and outside of Pakistan. Second, on 24-6-2009, an associated company of the TNT group, TNT Management (Bahrain) E.C. (TNT Bahrain) entered into an agreement with the plaintiff, i,e, the Agreement for Importer and Exporter of Record Service in 2009. In addition to the 2009 agreement, the plaintiff and TNT Bahrain further entered into a Service Agreement dated 14.5.2010. In terms of the 2009 and 2010 Agreements, the plaintiff was to provide services for customs clearance, transporting and warehousing of CISCO products, which TNT Bahrain is internationally obligated to provide. That the scope of services under the 2005 agreement, 2009 agreement and 2010 agreement would, inter alia, include payments for the purposes of fulfilling the obligation to compensate the plaintiff under the clause 8 of the 1980 agreement. That the plaintiff was instrumental in establishing and developing the growth of business for the TNT since 1980 and made significant investments in order to make such operations a success. That in pursuance of the 2005 Agreement the plaintiff invested substantial time, effort and monies. That the plaintiff has expanded approximately a sum of Pak Rs,250,000,000/- on account of land and building, IT expenses, and vehicles to fulfill its obligations under the aforementioned agreements. That plaintiff has been providing seamless services to the Defendant and TNT Bahrain in pursuance of the various agreements between the parties. That the plaintiff has gone out of way to ensure the effectiveness and growth of the joint collaboration of the two groups. The plaintiff has made substantial investment amounting to over Rs,250,000,000/- to provide different and unique services to the TNT group and the parties have also repeatedly entered into new agreements considering the referred prior interest/s of the plaintiff and have also explored various opportunities to mutually expand their relations. That on 5.12.2016, the plaintiff's CEO was invited to a meeting in Dubai, however to his complete shock and bewilderment, the Defendant's representative simply handed him a letter dated 1.12.2016 wherein it stated that in terms of clause 4.5, the Defendant was terminating the 2005 Agreement with a 90 days' notice. The Defendant's representative made no attempt to explain the reason behind such termination, and nor did he even acknowledge that the joint collaboration of the parties extended much further than the relationship reflected in the 2005 Agreement. It is submitted that the letter, dated 1.12.2016 is mala fide, unjustified, baseless and unlawful. That the history between the parties and groups establishes that the parties have expanded into a joint collaboration wherein services ranging from courier, warehousing, customs clearance and transporting are provided for their mutual benefit. Most importantly, the record establishes beyond doubt that the plaintiff has an agency coupled with interest, and therefore, the same is not terminable at the will of the Defendant. Therefore, the 2005 Agreement is not capable of termination simplicitor as is being attempted by the Defendant. In view of above, it is submitted that the letter dated 1.12.2016 is unlawful and the Defendant is liable to be restrained from acting in terms of the said letter and/or appointing and/or utilizing any other party to perform services that were being provided by the plaintiff. It is further submitted that the plaintiff suffered losses in the sum of Rs,25,000,000/- due the inability of the Defendant to make outbound deliveries to the plaintiff's customers in a timely manner. In addition, it is noteworthy that the Defendant had failed to clear the plaintiff's credit lines in the sum of Pak Rs,19,800,000/- for inbound deliveries. In this regard, it is submitted that the plaintiff provides linehaul deliveries for all the Defendant's consignments from the port of entry at Karachi to cities across Pakistan. The plaintiff provided such services on credit or a period of 18 Months, without receiving any payment from the Defendant made part payment for such services for a period of five months, leaving a balance of Rs,15,500,000/- which is payable to the plaintiff. The plaintiff claims to have a good prima facie case, alleges and apprehends irreparable harm and injury if injunction is not granted.
3. The defendant/s on the other hand in the pleadings denied the averment is of the plaintiff as irrelevant and misleading. It is further claiming that the plaintiff has no cause of action. Reliance is made upon the terms of the 2005 agreement and the jurisdiction of this Court is also denied. The defendant has further claimed entitlement in terms of clause 4.5 of the said 2005 agreement for termination of the contract between the parties. The said defendant also denies the reliance of the plaintiff to the 1980 agreement claiming the same to be not in the field, being superseded and not having any legal consequences. It is further contended that the relationship between the parties is only governed by terms of 2005 agreement. It is further contended that no illegality is present on part of the defendant/s and that the plaintiff has approached the court with un-clean hands. The defendant/s further claims that although negotiations, proposals and certain steps were present for a mutual enhancement of business however claims that the same were for expansion of business and nothing was finalized as the same did not ended as joint venture as is alleged. It is further claimed that the share holdings of the plaintiffs always remained to the exclusion of the defendant/s. The name of the defendant was termed as a requirement of the 2005 agreement between the parties. The defendant relied upon the clauses 4.5, 19.8, 19.14, clause 17, of the 2005 agreement in its support The defendant further claimed that the investment made by the plaintiff were made in their own name. It is also claimed that the plaintiff has failed to make out a prima facie case or justification under law and or equity for grant of relief along with having any balance of convenience or suffer any irreparable loss.
4. As a rejoinder the plaintiff denies all the allegations of the defendant and reiterated therein that the parties are having a relationship of agency coupled with interest not open to termination at will of the defendant. It is further claimed that irrespective to the clauses of the agreement the plaintiffs have rights as established in law and equity, as the relationship between the parties was not limited to the agreement relied upon by the defendant and in this regard the other services as were being provided by the plaintiff. It is further contended that the defendant having failed to deny the events leading up-to the 2005 agreement entitling the plaintiff for the discretionary relief.
5. Learned counsel for the plaintiff contends that the plaintiff has filed these cases challenging the termination of agency. The plaintiffs through the predecessor-in-interest, was having business with the defendants and their predecessor-in-interest. The nature of working was that of an agent with consideration. That in this relationship since 1980 to 1992 all was well between the parties as mutual understandings were present and the matters of mutual consideration still wait to be complied.
That as a result of these mutual understandings multiple contracts of associated and related business were entered into by the parties. That lastly in the year 2005 (incorrectly described as 2004, which element is also supported by the other side the agreement/s were got made out, however the understanding/s as were present earlier continued to be present and still require entertainment and continuation of relationship as the plaintiff, based upon the said relationship has made available substantial investments as were required. That as such the defendant/s has given an .evasive denial to this aspect as specifically stated in paragraph No,9 of the plaint (in Suit No,407/2017) in their pleadings. That based upon the said relationship the 2005 agreement is not to be limited to its present text but a continuation of the earlier understanding as such the abrupt termination of the same without a justifiable cause is not available against the plaintiff. Learned counsel for the plaintiff has relied upon the following case law in support of his contentions 1997 CLC page 1903, PLD 2011 Karachi page 362, PLD 2004 SC page 860. In respect to specific denial he has relied upon 2003 SCMR page 1864.
6. Learned counsel for the defendants on the other hand contends that no element of any agency with and/or without consideration is borne out of the relationship between the parties according to the agreement between the parties. That on account of the last agreement between the parties the earlier agreements whatsoever they were along with the alleged understandings stood redundant. That irrespective to the claim as made out by the plaintiff which is otherwise not available as the parties had agreed to termination open to both of them, the plaintiff can at best claim damages for any alleged breach subject to proof. That lastly the relationship of the parties was governed by the 2005 agreement which was/is valid, wherein termination clause 4.5 is present, nature of relationship is provide in clause 17, no variation clause is present as 19.2, superseding clause is present as 19.8 along with the entire agreement clause 19.14. It is further contended that termination of the said agreement was valid, the alleged agency coupled with interest as alleged stands agreed to be absent specifically by the parties under clause 17 of the said agreement having a clear and expressed language. That section 202 of the Contract Act require three conditions as has been held by the judgment reported as PLD 2011 Karachi page 362 being (a)There must be an agency (b)The subject matter of the agency must be some property and (c)The agent must himself having an interest in such property and a similar view has also been expressed in the judgment reported as 2002 CLD page 77. That injunction in these matters cannot be granted under the provisions of Sec.21 (a) (d) and 56 (0 of the Specific Relief Act. That the plaintiff has failed to satisfy the three ingredients required for injunction. He has also relied upon the cases reported as 2016 CLC page 189, PLD 1965 SC page 83, 2015 YLR 2141, 1995 MLD 384, PLD 2001 Kar. page 185, 2013 PLC (C.S.) page 768, 2010 MLD 800, 1974 SCMR page 519. Along with an unreported case in Suit No,1216/2016 Jamshoro Joint Venture Ltd. v. Sui Southern Gas Company Ltd.
7. Having heard the learned counsel and gone through the record with their assistance in its observed that the case of the plaintiff at this point of time a based upon the allegations made in the plaint, the last agreement i,e, the 2005 agreement (hereinafter referred as the said agreement) between the parties and the contentions in the pleadings are not in consonance with each other, if not in contradiction. The plaintiff indeed still has the option to prove his case as the controversy between the parties is of factual nature whereon the applicable law is dependent, however at this point of time the matter of interim injunction cannot be left to the conclusion of evidence, where the same was obtained on the first date, on recording the contentions of the plaintiff's version only at the time of granting notice to the other side.
8. An injunction order interim (for its continuation) or of permanent nature has to be based upon the record available before a court of law, covering all the three required aspects/ingredients of prima facie case, balance of convenience and irreparable loss. The case/s as made out by the plaintiff at this point of time fall short of having a prima facie nature for injunction on the basis of the record available (irrespective of the allegations made, which cannot be the sole basis) as such the interim injunction is also not available. The denial being termed as evasive is not sufficient in presence of the said last agreement for any relief claimed by the plaintiff in this regard. In my humble understanding the case/s as made out at this point of time is only maintainable for damages. The nature may however change after evidence has been led as such despite the attempt on part of the defendant to plead for a decision as to legal aspect the same cannot be given directly in any conclusive manner being limited to the material present on record wherein although the last agreement stands against the plaintiff however the allegations made in the plaint stand against the defendant, however the same lacks the material required to make out a case of injunction so as to sustain the continuation of the interim order.
9. The net result of the discussion as forgiven is that the interim injunction order/s granted, stands withdrawn. The said injunction applications accordingly also stands dismissed. The plaintiff is however free and may exercise his option to seek an interim order in case sufficient material is found available at any later stage.
These contempt applications are kept pending requiring evidence and as such liable to be decided thereafter.
Written statement having been filed by the defendant, let these matters be fixed for examination of parties and issues accordingly.