CR No.5321 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5321 of 2009 (O&M) Date of Decision: 17.09.2009 Arun Sabharwal ...Petitioner Vs. Anil Sabharwal & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Arun Palli, Sr. Advocate, with Mr.Tushar Sharma, Advocate, for the petitioner. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This revision petition is directed against the order dated 6.4.2009 passed by the learned courts below vide which application moved CR No.5321 of 2009 2 by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short the Code) seeking injunction against the defendant/respondents from transacting the business in the area assigned to the plaintiff/petitioner has been dismissed. The case set up by the plaintiff/petitioner was that in pursuance to the memorandum of understanding entered into between the parties which was reduced into writing on 6.9.2005 Annexure P.7, the defendants are left with no right to transact the business in the area allotted to the plaintiff/petitioner. The learned courts below did not find the memorandum of understanding to be admissible to be led in evidence and further that all the parties were not signatory to the memorandum of understanding to bind them. One of the factors which weighed with the learned courts below was, that prior to the filing of the present suit the plaintiffs had filed a suit in the Hon'ble High Court of Delhi wherein the counsel for the plaintiff/petitioner made the following statement:- “ In view of the breach by the defendants of the memorandum of settlement dated 6.9.2005, the plaintiffs shall also not comply with the Memorandum of Settlement.” Hon'ble Delhi High Court while allowing the petitioners to withdraw the suit specifically recorded as under:- “ The application is allowed but is hereby made clear that the statement made by counsel for the plaintiff on 16.10.2006 CR No.5321 of 2009 3 shall remain. The suit is dismissed as withdrawn with liberty to the plaintiff to file fresh suit or suits against the defendants either individually or collectively on the same cause of action.” In view of the statement made before the Hon'ble Delhi High Court which formed part of the order of Hon'ble Delhi High Court, it cannot be said that the plaintiffs have a prima facie case to enforce memorandum of understanding. It would be a question of evidence, to see the effect of the statement made by the counsel in the Hon'ble High Court of Delhi which is claimed to be without authority of the plaintiff/petitioner Learned senior counsel appearing on behalf of the petitioner has challenged the impugned order primarily on the ground that the courts below failed to notice that the memorandum of understanding was admittedly arrived at between the parties and was duly signed by the defendants Anil Sabharwal and Sunil Sabharwal. Not only that memorandum of understanding was signed, it was even acted upon as the firms were dissolved and new firms were constituted, to run the business. Therefore, the learned courts below committed an error in coming to the conclusion that memorandum of understanding could not be read into evidence, or that it was not a valid document. It is also the contention of the learned senior counsel for the petitioner that order of Hon'ble Delhi High Court has been misinterpreted by the courts below. The contention raised is that once the suit was allowed to be withdrawn, the statement made by the counsel was subject to final adjudication in the subsequent suit, as permission was granted to institute a CR No.5321 of 2009 4 fresh suit, therefore, the learned courts below should have decided the application by ignoring the statement made by the counsel for the petitioner/plaintiff before Hon'ble Delhi High Court. On consideration of matter, I find no force in the contentions raised by the learned senior counsel appearing on behalf of the petitioner. Once the memorandum of understanding is in dispute, the learned courts below were right in coming to the conclusion, that there was no prima facie case in favour of the plaintiff/petitioner, to enforce the memorandum of understanding which was not signed by all the parties. Furthermore, the suit filed by the plaintiff is not only for injunction, but also for rendition of accounts. In case the plaintiffs/petitioners succeed in the case then the loss, if any, suffered by them would be compensated by decree of the court. It cannot be said that non-grant of injunction would cause irreparable loss to the plaintiff/petitioner. One of the ingredients for grant of injunction is prima facie not fulfilled. No merit. Dismissed. (Vinod K.Sharma) 17.09.2009 Judge rp