IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.261 of 2008 M/S BHARTI INFRATEL LIMITED Versus M/S HEERA ENTERPRISES & ORS For the Appellants :- Mr. Shashi Shekhar Dwivedi, Senior Adv. Mr. Mritunjay Kumar, Adv. Mr. Manish Kumar, Adv. For Respondent No.1 :- Mr. Dhruv Narain, Sr. Adv. Mr. Rajiv Ranjan, Adv. For Respondent No.2 :- Mr. Jitendra Prasad Singh, Adv. ----------- 7/ 14.08.2008 This Misc. Appeal has been filed against the order dated 10.06.2008 passed by learned Sub-ordinate Judge-IVth, Patna, in Title Suit No. 185 of 2008, whereby and whereunder the petition filed under Order 39 Rule 1 and 2 of the C.P.C., he has issued a show cause notice on the defendant/appellant as to why injunction petition dated 21.05.2008 be not admitted and with a direction not to cause any obstruction, maintaining the status quo as was prevalent before 09.05.2008, and thereby fixing 08.07.2008 as the next date for further proceeding in the matter. The respondent M/s. Heera Enterprises who was plaintiff in the court below, Kirloskar Oil Engine Limited (K.O.E.L.) and Bharti Airtel Ltd. have made there appearance. The learned counsel for the parties has been heard. The petition filed on behalf of the appellant M/s. Bharti Infratel Ltd. dated 10.06.2008 in I.A. No. 3433 of 2008 was heard and operation of the order dated 10.06.2008 was stayed till appearance of the other side on 24.06.2008. - 2 - Supplementary affidavit on behalf of the appellant has also been filed. Respondent No. 1 namely, M/s. Heera Enterprises filed Title Suit No. 185 of 2008 seeking relief as enumerated in para 19 of the plaint which is quoted below: (i) On adjudication of the facts stated above it be declared that the communication made by the Defendant No. 2 to the Plaintiff through E- mail dated 09.05.2008 at 3.43 P.M. is illegal, unlawful, without jurisdiction, against the terms of the Annual Maintenance Contract between defendant no. 1 and defendant no. 3 malafide, void, unenforceable and not binding on the Plaintiff. (ii) During the pendency of the suit by an order of temporary injunction the Defendant be restrained from giving effect to their E-mail dated 09.05.2008 issued to the Plaintiff at 3.43 P.M. regarding cancellation of purchase order and they be further restrained from acting against the terms of the annual maintenance contract in any manner and from entrusting the work of maintenance of service or repair to any outside agency and they be directed to maintain status-quo. - 3 - (iii) Cost of the suit be awarded in favour of the Plaintiff and against the Defendants. The plaintiff/respondent has also filed a petition under order 39 Rule 1 and 2 read with Section 151 of the CPC., for causing issuance of notice against the defendant nos. 1 and 2 as to why they be not restrained by an order of injunction during the pendency of the suit from giving effect to his letter dated 09.05.2008 issued to the plaintiff at 3.43 P.M. regarding cancellation of purchase order. Defendants were directed to maintain status quo. Kirloskar Oil Engine Ltd. (KOEL) has been made a proforma defendant no. 3 in the aforesaid title suit, which has its dealer all over India for selling D.G. Sets (Diesel Generating Sets) and service dealer for selling parts of maintaining D.G. Sets. The plaintiff has been appointed as service dealer by the proforma defendant K.O.E.L. since September, 2006 and thus, discharging its duty to the satisfaction of customers and proforma defendant. It has been averred that defendant no. 3 is proforma whereas defendant no. 2 Bharti Infratel Ltd. is a subsidiary company of defendant no. 1 Bharti Airtel Ltd. The Bharti Airtel Ltd. is engaged in providing Cell Phone services, whereas Bharti Infratel Ltd. is engaged in letting out towers of Cell Phone companies for providing regular/uninterrupted service to the Mobile companies. The defendant Nos. 1 and 2 used to purchase D.G. Sets symbol by entering into contract with the companies for maintenance of those sets and as such defendant no. 1 K.O.E.L. entered into annual maintenance contract - 4 - with Bharti Airtel Ltd. which was executed in the month of February, 2007 for one year and as per contract the K.O.E.L. was required to maintain D.G. Sets purchased by defendant no. 1 along with his subsidiary company defendant no. 2; certain terms and conditions were entered into between the parties to facilitate transaction of contract on payment and without payment with stipulation in respect of mode of payment, billing, etc., and with further stipulation that defendant Nos. 1 and 2 would not entrust equipments/engines under service contract for any service or repair to any outside agency which were to be meticulously followed by defendant Nos. 1 and 2. The plaintiff/respondent as service dealer of defendant no. 3 (KOEL) for the State of Bihar provided service for defendant nos. 1 and 2 for which he developed infrastructure, equipments, Branch office engaged large number of staffs to provide hassle free un-interrupted service to the defendant Nos. 1 and 2 for which it had to spend huge amount and also incurred heavy expenditure in managing 32 locations with more than 250 staffs on regular basis in course of providing such services. The plaintiff M/s. Heera Enterprises also supplied spare parts from time to time and invoices for spares and labour charges were submitted and as per agreement between defendant Nos. 1 and 2, defendant Nos. 1, 2 and 3 are duty bound to release payment of bill and proforma invoices. But, on repeated requests and reminders sent to them for release/payment of amount payable to the plaintiff, they neglected from making the payment of bills/invoices and reminders to plaintiffs through E-mail went in vain. Rather, respondent no. 2 in - 5 - reply through different E-mail assured for releasing the payment and also stated that the same was in the process but all efforts went in vain and as such presently Rs. 4.50 crore ( Rupees Four Crore Fifty Lacs) stood due with them and they did not show any positive response rather created a peculiar unworkable situation for the plaintiff and then, defendant no. 2 issued a letter on 9.5.2008 through E-mail which was challenged in the aforesaid title suit as stated in the petition. The learned Senior counsel for the appellant in course of argument has submitted that grant of temporary injunction restraining the respondent Nos. 1 and 2 through E-mail dated 9.5.2008 is against the terms of annual maintenance contract and law. It has also been submitted that the learned court below has taken up the matter on the same date i.e. 10.06.2008 for grant of injunction and an ex-parte order has been passed restraining the defendant and thereby ordered for maintaining status quo which was not in accordance with the provision of Order 39 Rule 3 of the CPC. It has also been submitted that the plaintiff has not prayed for any relief for recovery of the outstanding dues. It has been submitted that after expiry of the contract with defendant no. 3, defendant no. 2 placed a purchase order with the plaintiff in his individual capacity not as service dealer of defendant no. 3, Kirloskar Oil Engine Ltd. on 19.4.2008 for maintenance of its diesel generator sets and also a separate purchase order of the same date for overhauling etc., of its D.G. Sets and there was no service contract with the plaintiff as was entered with the defendant no. 3 and - 6 - purchase order dated 19.04.2008 with the plaintiff had been for the period upto 30.06.2008. It has been further submitted that the learned court below by passing the impugned order has ignored provisions of order 39 Rule 3A of the CPC and as such passed an ex-parte order. From the supplementary affidavit filed on behalf of the appellant, it would appear that the appellant placed purchase orders to the plaintiff’s in individual capacity in respect of maintenance of its D.G. Sets by a separate purchase order on 19.04.2008 for overhauling etc. up to the period of 30th of June, 2006. But, plaintiff has not been performing duties and as such there was impediment in the service and in spite of several rounds of discussions and meetings, no improvement in service was made and as such appellant was compelled to cancel the purchase order dated 19.04.2008 through E- mail dated 09.05.2008 at 3.43 P.M. and since purchase order was to expire on 30th June, 2008, such suit itself also became infructuous. By filing another affidavit on behalf of the appellant, reference of several E-mail messages has been given, which was sent to plaintiff because of the poor performance on the part of the plaintiff. The appellants/defendants were compelled to cancel the purchase order and thereafter, appellant has placed purchase orders to M/s. Rangoli Enterprises and M/s. Nav Durga Enterprises for maintenance of his Diesel Generator Sets. It has also been submitted on behalf of the appellant that appellant is ready to pay all the dues of the plaintiff (Respondent - 7 - No.1) for the services provided by the plaintiff upto 09.05.2008 after settlement of the accounts. In reply, the learned counsel for the respondent no. 1 has submitted that as a matter of fact, there was contract between Bharti Airtel Ltd.(Respondent No. 3) which is parent company of present appellant company Bharti Infratel Ltd. on the one hand and respondent no. 2 Kirloskar Oil Engine Ltd. on the other hand for the whole of India and there is nothing in the clause for termination of their contract nor the contract assigned to Kirloskar Oil Engine Ltd. has been cancelled by the parent company for the appellant company. Moreover, there is nothing on the record to show that respondent M/s. Heera Enterprises was ever communicated regarding complaint against him earlier. The learned counsel for the respondent has also submitted that very order which is under challenge is not final rather, which only amounts to issuance of show cause notice and maintaining the status quo for which suit was filed and appellant instead of filing show cause and pursuing the matter for affording hearing on the point of injunction matter, in the court below has rushed here by filing an appeal, which is pre-mature and not maintainable at this stage. After hearing learned counsel of both sides, it is apparent, as submitted, contract between Kirloskar Oil Engine Ltd. and Bharti Airtel Ltd. has not been terminated uptil now. As per contention of the respondent, appellant has also shown good gesture to settle the account and thereafter, it is admitted fact that now period of contract - 8 - even if it has remained in continuity, would be deemed to have expired in respect of compliance of purchase orders and maintenance of D.G. Sets by 30th of June 2008. So, the matter should be decided by the court below by giving an opportunity of being heard in detail preferably within one month from the date of communication of this order. Thus, there is no requirement for interference in the impugned order. With the aforesaid observation, the petition being pre- mature stands dismissed. Sanjeet (Subash Chandra Jha, J.)