TaxTMI 
TaxTMI 
2022 (3) TMI 2
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.... Single Judge of the High Court of Calcutta refused to grant a decree of specific performance of the agreement. However, a decree of injunction as prayed for was granted. Aggrieved thereby, the Appellant had filed an appeal questioning the judgment of the learned Single Judge to the extent that no relief was granted. The Appeal was dismissed by a Division Bench of the High Court of Calcutta by a judgment dated 18.02.2008 which is impugned in the Civil Appeal No.3127 of 2009. Respondent No.3 - Aral Aktiengesellschaft in Civil Appeal No.3127 of 2009 has also filed an appeal against the judgment of the Division Bench questioning the judgment relating to the perpetual injunction granted in favour of the Appellant. 2. The Appellant entered into a collaboration agreement with Respondent No.3, which is a German company, on 01.11.1994 by which the Appellant had to manufacture lubricants using the formulation of Aral and market the same in India (hereinafter referred to as the "Collaboration Agreement"). By the Collaboration Agreement the Appellant was given exclusive licence regarding the distribution, blending, rebranding and marketing of Aral lubricants in India. Subsequent to the Col....
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....anuary 3, 1995 and December 27, 2002 incorporated therein and agreement upon trade mark and design, copies whereof are annexed hereto are operative, subsisting and binding upon the defendant No. 3 and its associates including the defendants No. l and 2 herein till December 31, 2009 ; d) Declaration that letter of termination dated April 14, 2004, a copy whereof being annexures "G" hereto, be directed to be delivered up so that the same may be adjudged void and cancelled ; e) Perpetual injunction restraining the defendant No. 3 and their associate, affiliate or agents from taking any step or from giving any effect to the letter of termination dated April 14, 2004 in any manner whatsoever; f) Perpetual injunction restraining the defendant No. 3. from acting in any manner contrary to or in breach of the collaboration agreement dated November 1, 1994 as modified by supplementary agreements dated January 3, 1995 and dated December 27, 2002 and the agreement upon trade mark and design being annexures "A", "B", "D" and "F" hereof and the defendants No. 1 and 2 from procuring breach thereof or acting contrary thereto in any manner whatsoever ; g) Decree ....
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....of the plaint is legal and valid or is the contract valid till 31st December, 2009? 6. Did the defendant Nos. 1 and 2 conspire together, as alleged in the plaint for the purpose of procuring breach and, consequential termination of the contract between the defendant No. 3 and the plaintiff? 7. Whether having regard to the status of the contract the plaintiff is entitled to exclusive right of use of the brand 'Aral' in India? 8. Whether the plaintiff has any right to sell lubricants under the brand name 'Aral' with 'Aral' design in India? 9. To what reliefs, if any is the plaintiff is entitled to?" 7. Issues No.4 and 5 pertaining to the termination of the agreement were considered together. The contention of the Plaintiff (Appellant herein) in the suit was that the agreements stood extended till 31.12.2009 in view of the Supplementary Agreement dated 27.12.2002. The Supplementary Agreement was entered into between the parties pursuant to the letter dated 13.11.2002 of the Government of India by which the Reserve Bank of India's approval was extended till the duration of the Collaboration Agreement from 01.01.2003 to 31.12.20....
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....ssed against Respondent No.3 and its subsidiaries and affiliates restraining them from marketing or distributing in India, 'Aral' products till 31.12.2009. 10. The findings recorded by the Division Bench need not be dealt with in detail as the Division Bench upheld the judgment of the learned Single Judge on all counts. Notice was issued in the Special Leave Petition filed by the Appellant on 21.07.2008. Thereafter, leave was granted on 25.03.2009. 11. Mr. Rakesh Dwivedi, learned Senior Counsel appearing for the Appellant submitted at the outset that the relief of specific performance of the Collaboration Agreement cannot be granted by this Court as the Collaboration Agreement expired on 31.12.2009. He submitted that the Appellant is entitled for damages for the period from 24.08.2005 till 31.12.2009. He relied upon the judgments of this Court in Jagdish Singh v. Natthu Singh (1992) 1 SCC 647, Urmila Devi & Ors. v. Deity, Mandir Shree Chamunda Devi (2018) 2 SCC 284 and Sukhbir v. Ajit Singh (2021) 6 SCC 54 and argued that the Appellant is entitled for damages even though such a relief was not specifically sought for either in the suit or in the appeal. He referred to the prov....
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.... Act, is not entitled for any such relief. The further contention of the Respondents is that damages can only be granted for the loss suffered and not for the loss of profits as per Section 73 of the Indian Contract Act. 14. Respondent No.3 has contended in its appeal that the approval granted by the Reserve Bank of India and the Government of India related only to payment of royalty which did not impinge on the power of the parties to terminate the Agreement as provided under Clause 5 of the Collaboration Agreement. According to Clause 5 of the Collaboration Agreement, either party could terminate the agreement by giving a notice six months prior, after the expiry of initial three years of the term. It was contended that since a termination notice which was issued on 15.04.2004 was in accordance with Clause 5, it was valid and therefore, the Collaboration Agreement expired on 28.10.2004. The Judgment of the trial Court relating to the injunction was found fault with on the ground that no reasons have been given. 15. The judgment of the learned Single Judge is after considering the Collaboration Agreement, and the Supplementary Agreements which were entered into by the partie....
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.... of 1872). (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation." 18. In order to overcome the limitation posed by Sub- Section (5), Mr. Dwivedi has relied upon certain judgments in support of his submission that even if a relief for damages has not been specifically sought for, this Court can still award damages to the Appellant. In Jagdish Singh v. Natthu Singh (supra), the Respondents' suit for specific performance of an agreement for conveyance of certain properties was dismissed by the Civil Court and the judgment of the Civil Court was upheld in appeal. As the High Court reversed the findings of the First Appellate Court, the defendant filed an appeal before this Court. The contention of the Appellant in that case was that the contract itself became incapable of specific performance as a proceeding for compulsory acquisition of suit properties was init....
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....on for breach of agreement of sale was claimed either in addition to or in substitution of the performance of the agreement. Admittedly, there was no amendment to the plaint asking for compensation either in addition or in substitution of the performance of an agreement of sale. In such background, this Court held as follows. "In our view, the High Court has clearly erred in granting the compensation under Section 21 in addition to the relief of specific performance in the absence of prayer made to that effect either in the plaint or by amending the same at any later stage of the proceedings to include the relief of compensation in addition to the relief of specific performance. Grant of such a relief is in the teeth of express provisions of the statute to the contrary is not permissible. On equitable consideration court cannot ignore or overlook the provisions of the statute. Equity must yield to law." On a careful consideration of the judgments of this Court relied upon by learned Senior Counsel for the Appellant and the learned counsel for the Respondents, we are of the view that the Appellant is not entitled to claim damages for the period between 24.08.2005 and 31.....