1. ' This is a suit for specific performance, declaration, injunction and in the alternative for recovery of damages amounting to Rs.200 Million. The plaintiff has also filed an application (C.M.A. No,3988 of 2000) under Order 39, rules 1 and 2 read with section 151, C.P.C. Seeking restraining orders against the defendants Nos.1 and 2 from interfering in the operation of their business and/or implementation of the licence, facilities and/or preventing the plaintiff from using and utilizing the trade marks as per terms ,and conditions of the Licence Agreement. The relevant facts for disposal of these applications are as follows: ' The plaintiffs were incorporated as a Public Limited' Company with paid-up capital of 1.0 Million Plaintiffs entered into a Licence Agreement dated 19-1-1987 with the defendant No,1, Messrs Joseph Wolf GmbH & Co. KG, Germany to manufacture licensed confectionary products in their establishment. Salient features of the licence, inter alia, were that the defendant No,1 agreed to provide knowhow for production of confectionery and to assist the plaintiff to create a market for the same. Plaintiffs were licensed to exploit the recipes process and market of said products within territory of Pakistan. Under the licence, the plaintiffs were authorized to use the trade. Mark, patents, trade names and designs in Pakistan as well as African and other Asian Countries during the term of "licence". Licence was initially for a period of 5 years which period was extended to 10 years from the date of commencement. It is claimed that the plaintiffs obtained loans from Financial Institution to meet its financial requirement. It is claimed that the plaintiffs applied for the registration of trade mark of its various products. The plaintiff have also produced its balance- sheet showing profit being made on such products. It is claimed that over Rs.25 Million have been spent on publicity and a large number of people are employed. It is further claimed that the defendant No,1 has sold out their rights to the defendant No,2 without the consent of the plaintiff. It is further stated that the defendant No,2 had notified the cancellation of the licence which according to the plaintiffs was illegal. In the foregoing background plaintiffs have prayed for the following reliefs:
(a) Direct the defendants Nos.1 and 2 to specifically perform the terms and conditions contained in the Licence Agreement dated 19th July, 1987 as amended by Addendum dated 27th November, 1990.
(b) Declare that the termination of the Licence Agreement as alleged in a letter of defendant No,1 from 15th August, 1997 is totally illegal, void and not binding on the plaintiffs.
(c) Declare that the Licence Agreement dated 19th July, 1987 as amended by Addendum dated 27th November, 1990 is valid and binding on defendants Nos.1 and 2 till November, 2005.
(d) Hold that defendant No,1 is neither competent nor legally entitled to terminate the Licence Agreement from 15th August, 1997 or any date before November, 2005.
(e) Declare that defendant No,2 are not legally entitled to act as successors of defendant No,1 in respect of the Licence Agreement dated 19th July, 1987 as amended by Addendum dated 27th November, 1990.
(f) Restrain defendants Nos.1 and 2 their agents and servants from interfering in the operation of the business of the plaintiffs as per terms and conditions contained in the licence agreement and the licence facilities granted to the plaintiffs as per Licence Agreement dated 19th July, 1987 as amended and use and utilization of the trade marks brand name.
(g) Grant such other relief or relieves as this Honourable Court may deem fit and proper in the circumstances of the case.
(h) Grant payment of costs of the suit.
2. ' Defendants have denied various allegations contained in the pleadings reiterating preliminary objections as raised in the application under Order VII, rule 11, C.P.C. It was asserted by Mr. Rashid A.
3. Razvi, that the plaintiffs have failed to perform its legal obligations arising out of the Licence Agreement, plaintiffs have neither paid royalty at the rate of 2% nor furnished any account in respect thereof, which justifies the revocation of the licence. It is further claimed that the plaintiffs having applied for the registration of defendant's Trade Mark "Wolf' and "Intersnack" during currency of the agreement but clandestinely applied for the registration of the same in its own name and further applied for the other trade marks containing the said words to deceive the public at large. Against the registration, the defendants have filed opposition with the Trade Marks Registry.
4. ' It is further asserted that the defendant No,1 was under no legal obligations to notify the transfer or change of its interest in favour of the defendant No,2. It is further claimed that the agreement/licence stood revoked on the expiry of its term; therefore, no enforcement can be claimed.
5. ' Mr. Noorullah A. Manji, learned counsel for the plaintiffs contended that the plaintiffs have incurred substantial amount in establishing its factory and a large number of people are employed, licence is coupled with interest. It was further pointed out that the revocation of the licence was recalled as is apparent from revalidated agreement filed alongwith his counter-affidavit to Civil Miscellaneous Application No,7774 of 2000 which, inter alia, provided that the licence agreement is to be extended until 2008 provided all the Royalties in terms of section 6 is paid, it further provided that the plaintiffs disclosed all the figures of the sales on such condition, licence was further agreed to be renewed. It was further agreed that the plaintiffs will assign all the trade marks containing the word "Wolf' or "Intersnack" w.e.f. 15-8-2000 and all such documents for assignment will be signed by the plaintiffs. It was further stipulated that the instant, suit will be withdrawn prior to 15-8-2000. In support of his contentions, he has relied upon the case-law reported as Messrs Baba Handicraft Civil Aviation Authority 1997 CLC 1005 and Muhammad Arif Affendi v. Egypt Air 1980 SCMR 588.
6. ' Mr. Rasheed A. Razvi, learned counsel for the defendants contended that on the own showing of the plaintiffs Agreement dated 19-7-1987 even if considered for a term of 10 years expired on ..18-7- 1997 and the revocation followed immediately thereafter on 15-8-1997. He further contends that even there was no need of formal revocation notice same stood revoked having out levied its tenure. He further states that the relief claimed in prayer clause (A) of the plaint cannot be enforced as licence is no more subsisting. As far as relief from clauses (B) to (E) are concerned, it is stated that the same is hit by Specific Relief Act. In support of his contention, he has relied upon the case-laws reported as (1) M. A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83 (89-G); (2) Messrs Baba Handi Craft and 3 others v. Civil Aviation Authority and the Airport Manager 1997 CLC Karachi 1005; (3) Alavi Sons Ltd. :v. The Government of East Pakistan and others PLD 1968 Karachi 222; (4) Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi PLD 1979 Karachi 640 (642); (5) Messrs Karsaz Construction Company through Partner Muhammad Hanif v. Pakistan through Secretary, Ministry of Defence, Islamabad and another 1999 CLC Karachi 1719 and (6) Hyderabad Electronic Industries Ltd. v. Messrs Sony Corporation through Messrs Sony Gulf Company 1999 MLD Karachi 850. It is further contended that the claim of the plaintiffs is merely restricted to the alleged assignment of the trade marks which cannot be agitated in view of section 28 of Trade Marks Act, said relief if at all could only be assailed under the Trade Marks Act.
7. ' Having heard the arguments and perused the record. Admittedly, the Licence Agreement dated 19-7-1987 that has been relied upon by the plaintiffs was initially for a period of five years which period was further extended to 10 years pursuant to Addendum Licence Agreement dated 27th November, 1990.
8. ' Now adverting to the merits of the arguments as advanced at bar.
9. ' First objection of the defendant that the suit is hit by section 42 of the Specific Relief Act will be examined. Section 42 of the specific Relief Act deals with the declaration as to the status or right to any property. Contention of the learned counsel that the plaintiffs lack the legal character as such cannot file a suit for declaration. When Mr. Razvi was confronted with the proposition whether a licence or any interest claimed in the performance or observance of the terms and conditions of the licence amounts to right to any property or not learned counsel contended that the licence does not create any right in favour of a person. Licence unless shown to be coupled with interest is always revocable and since by nature it cannot be enforced, therefore, no right to property arises.
10. The word "property" has not been defined in Specific Relief Act under section 54 thereof, trade mark for the purpose of section ibid is treated as property. It, therefore, follows that the term "property" is of wide import, it includes within its fold both tangible and intangible, property, connotes exclusive right of possessing or enjoying and is capable of being disposed of, assigned or transferred, it comprises of bundle of rights which a person is capable of enjoying to his advantage giving rise to some privilege benefit or monetary compensation by exercise of such right. It is a term of "wide import" it may be in the shape of fixed assets or object or may be a right in intangible property as for example trade mark, goodwill or trade name royalty etc. ' In the instant case, the right and interest as claimed by the plaintiff in the licence in my humble estimation is a contract, licence or any arrangement whereunder the parties contract to perform and assume certain obligation, privileges, benefit by claiming due performance of obligations contract thereunder. Privileges, benefits under the said contract may it be licence are broadly speaking property and a person entitled to such benefit can claim due recognition and its corresponding performance by the other. Learned counsel for the defendants stated that the suit is hit by section 42 of the Specific Relief Act, in my humble opinion will not be attracted to the circumstance of the case.
11. ' Whether such licence is capable for performance or not is yet another controversy subject-matter of the instant proceedings, licence inherently are revocable unless shown to be coupled with interest. In the case of Baba Handicraft, the licence was a period of three years. Instances were quoted in the judgment whereby licences of various applicants were renewed and extended' but the plaintiffs were not given the same treatment which was considered to be unjust and inequitable. Therefore, the direction was issued for the renewal of the gate-passes for entry into the Airport wherein the subject shop was situated. So also in the case of Muhammad Arif Affendi the consideration before the apex Court was the licence apparently coupled with interest which fact was found to be sufficient for further enquiry as far as injunctive relief was considered.
12. ' In the cases of (1) Messrs World Wide Trading Co. v. Sanyo Electric Trading Co. Ltd. And another PLD 1986 Karachi 234, (2) Adamjee Paper and Board Mills Ltd. v. Maritime Agencies Ltd. 1984 CLC Karachi 440, and (3) Muhammad Riaz v. Federal Construction Corporation Limited and 4 others 1987 CLC Karachi 345. These are the cases relating to the enforcement of the agency agreement.
13. Consensus of the judicial opinion is that the agency agreement cannot be specifically enforced unless shown to be coupled with interest and the claim of a person to the effect that a particular contract still subsists is not maintainable. From the own showing of the plaintiffs contract was for 10 years, same. Having come to an end cannot be sought to be enforced or given life for any further extended period without concurrence of the other party.
14. ' Even otherwise, on the own showing of the plaintiffs the Licence Agreement was renewed for further period up to 2008 as per Exh. E.1 to the counter-affidavit. Suffice to say that the plaintiffs have not placed on record any material to show that the plaintiffs had fulfilled its legal obligations arising therein namely; execution of assignment in respect of trade marks containing the word "wolf' or "intersnack" which were required to be done before the cut of date (i) instant suit was to be withdrawn (ii) Royalty in terms of clause 6 of previous Licence Agreement was to be paid. Though the plaintiffs verbally argued that such clause only provides for the payment of royalty on goods manufactured for export it is not shown nor asserted in the plaint that the plaintiffs are Exporter or is manufacturing any goods for export. No Contract or Agreement can be conceived without any consideration. It cannot be presumed that the defendant No,1 had licensed their products to be manufactured by the plaintiffs without any monetary compensation or benefits therein. Foremost consideration to obtain a relief by way of specific performance of a contract, the plaintiff has first to demonstrate that he was ever-ready and willing to perform his part of the obligation and had in fact taken positive measure to fulfil his part of the obligation before he could seek performance of the reciprocal obligation by the defendant [see Muhammad Yaqub v. Muhammad Nasrullah Khan PLD 1986 SC 497 and Muhammad Ismail Baloch v. Rabia 1987 MLD 280]. In the instant case, the plaintiffs under clause 9 was required to protect the trade mark, trade name of the principle within the territory of Pakistan for which plaintiffs were granted licence to use the same. But on its own showing the plaintiffs applied for the registration of the trade mark and trade name in their own right thus apparently claiming a hostile title against their principal i.e. The defendants in respect of such trade mark which cannot be but a dishonest act on the part of the plaintiffs, a person who not only failing to fulfill its part of the corresponding obligations at the same time attempting to deceive its principal by exploiting their goodwill inasmuch as attempting to get the principals Trade Mark -egistered in their names are not entitled for any indulgence. Injunctive relief is equitable relief, a person seeking equity must do equity.
15. ' Objection of the plaintiffs as to acquisition of all rights and interest of the defendant No,1 by the defendant No,2 cannot be objected as by such acquisition or merger of defendant No,1 into the defendant No,2 will not change the status of the plaintiffs.
16. ' For the foregoing reasons, I do not consider plaintiffs are entitled for the injunctive relief, application is dismissed. Civil Miscellaneous Application No,3988 of 2000 stands disposed of in above terms.