P.K.Deb, J. - (1.) The two revisional applications being C.O. No. 4305 of 2005 and C.O. No. 866 of 2006 filed by the Bijul Pharma-Chem (P) Ltd. have been heard along with the revisional application being C.O. No. 3287 of 2005 filed by M/S. E. R. Squibb & Sons LLC. The revisional application being C.O. No. 4305 of 2005 has been directed against the order dated 28.10.05, whereby the petition under Order 6 Rule 17 CPC for amendment of the prayer portion of the plaint was rejected. The revisional application being No. 866 of 2006 was directed against the order dated 28.02.06 passed by the learned District Judge in Misc. Appeal No. 237 of 2004, whereby the prayer for extension of the period of supply was rejected. The revisional application being No. 3287 of 2005 was filed by M/s. Squibb & Sons LLC challenging the order dated 12th May, 2005, in Misc. Appeal No. 237 of 2004, whereby the learned District Judge, Howrah was pleased to extend the period of supply of goods in terms of the contract for a period of four months to the extent of letter of credit.
(2.) Appearing on behalf of Bijul Pharma-Chem (P) Ltd. in revisional application No. 4305 of 2005 and revisional application No. 866 of 2006, Mr. P.N. Mishra has submitted that in rejecting the prayer for amendment of the plaint for incorporating the relief of specific performance of contract and by refusing to extend the interim order of injunction passed in Misc. Appeal No. 237 of 2004, the learned Court placed undue importance on Clause 5 of the agreement made between the petitioner and the respondent without properly appreciating the relevant provision contained in Clause 20 of the agreement. It is submitted that the respondent vide notice dated 31.08.04 intimated the petitioner that the Non-Exclusive Distribution Agreement dated 23rd November, 2002 would come to an end on 22nd November, 2004 without assigning any reason whatsoever. It is submitted that the petitioner had placed orders for life saving Ostomy appliances worth US Dollar 67,640/-. The illegal termination of contract in breach of the Clause 20 of the agreement, it is submitted, has caused untold hardship and suffering to cancerous Ostomates/patients for non-supply of life saving duty-free Ostomy appliances. The termination of agreement for distribution and supply of Ostomy appliances was made, ignoring the acute demand of various cancer hospitals. Appreciating the acute need of supply of Ostomy appliances and considering the termination of contract to be highly illegal, the Hon'ble Court in disposing of earlier revisional application directed continuation of the supply of Ostomy appliances. Judging the importance of uninterrupted supply of Ostomy appliances and illegality of the notice of the termination, the Appellate Court, it is submitted, earlier directed continuation of supply of Ostomy appliances for a stopgap period of four months to the extent of letter of credit. Side-stepping the principle of injunction, the Trial Court refused to extend the supply of goods till the disposal of the suit.
(3.) Referring to section 10 of the Specific Relief Act, it is argued that relief as sought for by the petitioner ought to have been granted in favour of the petitioner, inasmuch as there existed no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done. When the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief injunction ought to be granted. Citing the case of Central Inland Water Transport Corporation Ltd. vs. Brojo Nath, reported in AIR 1986 SC 1571, it is submitted that in considering the application for injunction, the issue is to be looked from the point of view as to whether on refusal of injunction the plaintiff would suffer irreparable loss and injury. Balance of convenience or inconvenience ought to be considered as important requirement. The Court is required to consider as to whether the grant or refusal of injunction will adversely affect the interest of general public, which can or cannot be compensated otherwise. In refusing to extend the period of supply further, the Trial Court, it is contended, failed to appreciate that the general public would suffer tremendous hardship and agony because of sudden stoppage of non-supply of essential life saving appliances. Had these aspects been considered in proper prospectives, the Trial Court would have allowed the prayer for amendment of the plaint by incorporating the prayer for specific performance of contract as well as the prayer for further extension of the period of supply. Relying on the case of Jabalpur Cable Network Pvt. Ltd. vs. E.S.P.N. Software India Pvt. Ltd., reported in AIR 1999 M.P. 271 282, Mr. Mishra has argued that damage even does not always furnish and adequate remedy in case of breach of contract for sale of movable.;