M/S BEST SELLERS RETAIL (INDIA) PVT. LTD. versus M/S ADITYA BIRLA NUVO LTD. & ORS.

Citation: [2012] 5 S.C.R. 834 · Decided: 08-05-2012 · Supreme Court of India · Bench: A.K. PATNAIK · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2012] 5 S.C.R. 834 
MIS BEST SELLERS RETAIL (INDIA) PVT. LTD. 
v. 
MIS ADITYA BIRLA NUVO LTD. & ORS. 
(CivilAppeal Nos.4313-14 of 2012) 
MAY 08, 2012 
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.] 
Code of Civil Procedure, 1908 - Order 39 Rules 1 and 2 
rlw s. 151 -Temporary injunction - Respondent no. 1 filed suit 
C for specific performance of agreement in respect of property 
and in the alternative for damages for expenses and losses 
if specific performance of the agreement was refused by the 
Court - Along with the suit, respondent no. 1 also filed 
application for temporary injunction restraining the defendants 
D from leasing, sub-leasing, alienating or encumbf;ring the 
property in any manner pending disposal of the suit - Trial 
court allowed the application for temporary injunction - Order 
upheld by High Court - Held: While passing an interim order 
of injunction under Order 39 Rules 1 and 2 CPC, the Court 
E is required to consider (i) whether there is a prima facie case 
in favour of the plaintiff; (ii) whether the balance of 
convenience is in favour of passing the order of injunction; 
and (iii) whether the plaintiff will suffer irreparable injury if an 
order of injunction would not be passed as prayed for - In the 
F instant case, the trial court and the High Court were right in 
coming to the conclusion that there was a prima facie case 
in favour of respondent no. 1 - However, even where prima 
facie case is in favour of the plaintiff, Courts ought to refuse 
temporary injunction if injury suffered by plaintiff on account 
G of refusal of temporary injunction was not irreparable - In the 
present case, respondent no. 1 itself had claimed alternative 
relief of damages if relief for specific performance was to be 
refused by the Court - If temporary injunction restraining the 
defendants from allowing, leasing, sub-leasing or 
H 
834 
BEST SELLERS RETAIL (INDIA) PVT. LTD. v. ADITYA 835 
BIRLA NUVO LTD. & ORS. 
encumbering the suit property was not granted, and A 
respondent no. 1 ultimately succeeded in the suit, it would be 
entitled to damages claimed and proved before the court -
Respondent no. 1 will not suffer irreparable injury - Order of 
temporary injunction accordingly set aside - Specific Relief 
Act, 1963 - s.37. 
B 
In the year 2005, respondent no.1 had entered into 
an agreement with Liberty Agencies whereunder Liberty 
Agencies agreed to sell the products of respondent no.1 
in the property in question and also agreed to retain the 
C 
possession of the property until the expiry of the term of 
agreement and Liberty Agencies was not to sell any other 
articles or goods other than that supplied by respondent 
no.1. Under the agreement, Liberty Agencies was entitled 
to a fixed commission per month. Thereafter, respondent 
no.1 notified to Liberty Agencies various breaches of the 
D 
terms and conditions of the agreement but Liberty 
Agencies did not set right the breaches. As a result, 
respondent no.1 suffered huge financial losses. 
Respondent no.1 issued a legal notice calling upon 
Liberty Agencies to comply with the terms of the 
E 
agreement. Liberty Agencies, however, sent a letter dated 
26-2-2010 claiming that the constitution of the partnership 
firm has changed and that its partner A.C. Thirumalaraj 
had retired and that A.C. Thirumalaraj as the owner of the 
property had terminated the tenancy of the property in 
F 
favour of Liberty Agencies. 
Respondent no.1 filed suit for specific performance 
of the agreement and in the alternative for damages for 
expenses and losses if the specific performance of the 
G 
agreement was refused by the Court. Along with the suit, 
respondent no.1 also filed an application under Order 39 
Rules 1 and 2 read with Section 151 of CPC praying for 
a temporary injunction restraining the defendants from 
leasing, sub-leasing, alienating or encumbering the 
H 
836 
SUPREME COURT REPORTS 
[2012] 5 S.C.R. 
A property in any manner pending disposal of the suit. The 
trial court allowed the application for temporary injunction 
and restrained Liberty Agencies and its partners 
including A.C. Thirumalaraj from leasing, sub-leasing, 
alienating or encumbering the property in any manner 
s pending disposal of the suit. 
Aggrieved, A.C. Thirumalaraj filed a Miscellaneous 
Appeal under Order 43 Rule 1 of the CPC against the 
order of temporary injunction before the High Court. 
While the Miscellaneous Appeal was pending, it was 
C brought to the notice o

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