- (1.) This is an application at the behest of the plaintiff/respondent for variation/vacation and setting aside of the interim order dated 25th September, 2017 passed by the Division Bench in the instant appeal. By the said order the Division Bench stayed the operation of the order dated 18th September, 2017 passed by the trial court while disposing of the application for temporary injunction. The said order is challenged in an appeal filed by the defendant/appellant. While staying the operation of the order the Division Bench observed that the trial court ought to have recorded its finding on the prima facie case as to whether there is any existence of principal agent relationship between the parties and having failed to do so the order of temporary injunction cannot be sustained.
(2.) It appears from the findings recorded in the impugned order passed by the trial court that the claim of the petitioner as agent cannot be overruled as the interpretation of channel partner circular and its nature can only be decided after full-fledged trial. It is further observed that the question as to whether the channel partner circular constitute an agency agreement or not is a triable issue and proceeded to dispose of the said application by restraining the defendant/appellant from selling its goods into three districts within the State of West Bengal and also directed the respondent to submit quarterly report relating to the stock of goods to be prepared in presence of the learned advocates of both the parties.
(3.) The first and foremost point taken by the respondent in the instant application is that the Division Bench ought not to have stayed the operation of the temporary injunction which was passed on a contested hearing at the time of admitting the appeal as it would tantamount to allowing the appeal itself. In support of the aforesaid contention reliance is placed on an unreported judgement of this Court in the case of Manbasa Devi vs. Calcutta Landing & Shipping Co. Ltd. & ors. in which one of us (Harish Tandon, J) who delivered the said judgement held that the Court should be slow, circumspect and seldom to stay the effect of the temporary injunction at the nebulous stage of admission as nothing would remain in the appeal to be decided at a later point of time.;