2006 PLP 195 (MLD)

MUHAMMAD MUZAMMAL KHAN, J.

Instant first appeal against the order dated 21-9-2005 passed by the learned Civil Judge, Lahore, prayed for issuance of injunction restraining the respondents from taking over control of Fuel Filling Stations of the appellant, already installed on different points of the Motorway (M-2), Lahore-Islamabad.

2. Succinctly, relevant facts as deciphered from the plaint are that the appellant and Daewoo Corporation proposed to develop Motorway service areas and Fuel Filling Stations etc., over the Motorway (M-2) controlled by National Highway Authority (NHA). On account of acceptance of these proposals, appellant entered into an agreement dated 10-9-1997 with respondent No.1 for installation of Fuel Filling Stations at ten motorway service areas and was to retain control thereof for eight initial years. Appellant further pleaded in the plaint that after completion of eight years, term of agreement was to be automatically extended for further seven years but in spite of complying with all legal formalities of getting licences/NOCs, respondent - No.1 in meeting scheduled on completion of initial eight years, intended to thrust its own terms of agreement and those unilateral terms proposed were not acceptable to it, as was evident from minutes of meeting dated 27-6-2005 and instead an agreement with respondent No.3 was illegally entered to the detriment of the appellant, contrary to the agreement dated 10-9-1997. Appellant further averred that it had underwent huge expenses by developing the filling stations, installation of dispensing equipment and filling fuel in the tanks, hence the impugned memorandum of understanding dated 28-5-2005 may be declared to be illegal, void and of no legal consequence and that the earlier agreement stood automatically extended for another period of seven years which still subsists between the parties. Appellant prayed by way of permanent injunction against the respondents that they should not be disturbed in its possession over the filing stations. Appellant along with the suit filed an application under Order XXXIX rules 1 and 2, C.P.C. praying temporary injunction, requiring the respondents to maintain status quo pending suit.

3. Respondents contested the suit and opposed the issuance of temporary injunction by filing their written statements/written replies averring that agreement between the appellant and respondent No.1 stood vanished on account of completion of contractual period of eight years whereafter the agreement was to be extended by mutual concurrence which was declined by respondent No.1, hence appellant had no right to maintain the suit or application for temporary injunction. Respondents also maintained that entire service areas were constructed and developed by respondent No.1 by incurring its own expense, wherein appellant did not contribute. They further asserted that appellant only installed signs and retail visual identity components. The learned Civil Judge cognizant of the suit after hearing the learned counsel for the parties, refused to issue temporary injunction and dismissed application of the appellant in this behalf vide his order dated 21-9-2005. Appellant has now filed instant appeal, after issuance of notice to .the respondents in terms of Order XLIII, rule 3, C.P.C. and respondents Nos.2 and 3 appeared through their respective counsel, who were holding watching briefs.

4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Learned counsel for respondent No.2 had submitted before this Court on 23-9-2005, in presence of learned counsel for the appellant, that they had already taken over the management of fuel pumps located at the Motorway and have started functioning as dealer of PSO. Presently, learned counsel for the appellant refuted this statement of respondent No.2 and stated that appellant still holds managerial control over all the fuel stations. In view of this opposing stance by the parties, two main points which hinge for determination are that as to whether appellant's agreement with respondent No.1 stood automatically extended for another period of seven years in the terms of agreement dated 10-9-1997 and that the appellant still holds control over the filling stations. None of the parties refuted the agreement dated 10-9-1997 entered between Daewoo Corporation and Shell Pakistan Ltd. which tenure-wise was controlled by its clause 8, which reads as under:-- "

8. Term The term of this agreement shall commence on the date hereof and shall remain in effect for eight (8) years thereafter. This agreement will then be renewed on mutually agreed terms for an additional seven years hence thereafter, provided the DAEWOO has not introduced itself as an Oil Marketing Company in Pakistan and has no marketing interest in relation thereto, during the period of first eight years. For the period of first five years the Management Fee shall be given in the same manner and Proportion as provided in the clause (3) hereinabove, and for the remaining three (3) years term, SPL will get 10% of the Net Profit in the same manner as provided hereinabove. If this agreement is renewed for an additional seven years, SPL will get 10% of the Net Profit (in the same manner as provided hereinabove) for the subsequent 2 years, and 5% for the remaining 5 years. This agreement may be renewed mutually before expiration of the said term. Notice of intent for such renewal shall be given six months before the said expiry." It is evident from the above reduced condition of the admitted agreement between the parties that on completion of eight years, the agreement would be renewed by mutual consent of the parties but subject to the condition that respondent No.1 has not introduced itself as an Oil Marketing Company in Pakistan and had no marketing interest in relation thereto. Minutes of meeting with the appellant dated 27-6-2005 and letter dated 30-7-2005 that no concurrence could prevail between both the parties for extension of agreement for another period of seven years and thus intendment which prevailed is also apparent from the plaint itself. Besides this, though respondent No.1 has not introduced itself as an Oil Marketing Company in Pakistan but it has a marketing interest relating to supply of oil as respondent No.2 has started functioning as dealer of Pakistan State Oil Company Limited. In these circumstances, neither appellant and respondent No.1 could mutually agree to further extension of agreement nor extension could have been granted to the appellant, on account of marketing interest of the respondents, as noted above.

5. Respondent No.2 has placed on file copy of a petition dated 27-9-2005 moved by Imtiaz Ahmed Shah, Manager of the appellant, under section 22-A, Cr.P.C. praying registration of criminal case, against 11 named and 30/35 unknown persons who were employees of respondent No.1, from the Court of learned Additional Sessions Judge, Pindi Bhattian. In this application it was categorically reported that named employees of respondent No.1 illegally and forcibly dispossessed the appellant by removing all the signboards of Shell and took away petrol/diesel/lubricants of the quantity mentioned therein. Examination of this application leaves no room that appellant still holds control or possession over the filling stations regarding which injunction application was disallowed by the trial Court.

6. As regards incurring of expenses by the appellant for construction of filling stations within the service areas on Motorway (M-2) of respondent No. 1., clause-I of the above-referred agreement dated 10-9-1997, is relevant whereby respondent No.1 undertook to construct A the filling station at each MSA according to the specifications, layout and with the technical assistance provided by Shell Pakistan Limited. Respondent No.1 was also to provide the skilled, unskilled supervisory and/or other employees and staff, proper electricity, gas, water and sanitary facilities etc. This clause demonstrated that all the expense was to be incurred by respondent No.1 and under clause 2(b)(1) of the agreement SPL was only responsible for supply of fuel, lubricant and other ancillary products mentioned therein. Case of the appellant is demolished by the terms of agreement itself and thus no prima facie/arguable case existed in its favour. On account of already taken over possession of the filling stations by respondent No.2, no irreparable loss/injury was to be sustained by the appellant and as compared to respondent No.2 it was not to suffer any inconvenience, thus the injunction prayed was rightly refused by the trial Court.

7. For the reasons noted above, this appeal has no merit and is accordingly dismissed, in limine. M.H./S-480/L Appeal dismissed.