SOUMEN SEN, J. - (1.) The apparent conflict between the shareholders of the plaintiff No.1 has resulted in the institution of a suit by the plaintiffs seeking specific performance of several agreements between the petitioners and the respondent Nos.1 to 38 and a declaration that the petitioner- Company is exclusively entitled to be the sole purchasing representative in perpetuity of the respondent Nos.2 to 38 for procurement of the goods and services from India. The petitioners have also claimed perpetual injunction restraining the respondent Nos.39 to 42 from acting in breach of negative covenant as pleaded in Paragraph 42 of the Plaint.
(2.) The reliefs in the suit as well as in this application are based on a plea of pre-incorporated contracts, oral agreements, collaboration agreement and a shareholder's agreement followed by conduct of the parties for almost 20 years giving a special right in favour of the plaintiff to exclusively supply materials to ArcelorMittal Companies (hereinafter referred to as "AM Companies") outside India after procuring the materials, inter alia, from the respondent Nos.39 to 42. The plaintiff claims that apart from the agreements pleaded in the last 20 years, the parties have proceeded on the basis that the plaintiff No.1 shall act exclusively as a sole purchasing representative of the respondent Nos.2 to 38 for procurement of goods and services from India and the petitioner No.1 in performance of the terms of the agreement have identified the respondent Nos.39 to 42 as vendors for export of goods and services to the ArcelorMittal Group of Companies. Commercial relationship with each of the said defendants was established by the plaintiff Company in the first instance and after being assured that the said defendant companies would be qualified to service the things and requirement of the M Companies. Such relationship between the plaintiff Company and the said defendants has been continuing for decades and the said defendants amongst others are four of the existing suppliers through whom the plaintiffs affect supply of re-factory materials and other allied goods to the ArcelorMittal Companies. The plaintiff No.1 owes its origin to an agreement entered into between the petitioner No.2 and the first respondent whereby the respondent No.2 appears to have agreed that for the purpose of sourcing supply of goods and services from India for various companies belonging to the first respondent, a joint-venture Company would be set up in India. The petitioner Company was, thereafter, incorporated and started carrying on business of supplied goods to the companies controlled worldwide by the first respondent on and from 1996.
(3.) Under the arrangement, it is alleged that the proposed company would have the exclusive right to purchase for and on behalf of the ArcelorMittal Group of Companies, all their requirements from India, and no other party would be permitted or authorized to perform any such function whatsoever. The proposed company would be permitted to earn and retain a net profit not to be in excess of 5% of the modalities for disbursement of any excess profit over and above 5 % would be decided by the first defendant at his absolute discretion. Following such arrangement, it is alleged that on 12th August, 1996, the plaintiff company was promoted, established and incorporated at Calcutta. Between the years 1996 and 2003, the total sales in terms of the aforesaid arrangement by the plaintiff company were Rs.292 crores approximately. All the said sales were made to the ArcelorMittal Companies only. The process of procurement of the materials under the aforesaid arrangement as pleaded is:- (a) The Mittal Companies would exclusively forward all their enquiries (RFQs) for supply of goods or services to the plaintiff company at its said office at Kolkata upon receipt of which the plaintiff company would select the local vendor to supply the requirement product; (b) A quotation from the chosen supplier or vendor would be forwarded to the overseas buyer, and if approved it was followed by a supply agreement being executed between the purchaser and the plaintiff company; (c) The orders placed would be on a principal-to-principal basis between the plaintiff company and the prospective purchaser only, there being no contractual privity between the purchaser and the manufacturer, with whom the plaintiff company would enter into a separate and independent contract together; (d) All steps taken in India to make the export from different parts in India to the overseas customers would be responsibility of the plaintiff company who would then perform the export in conjunction with the concerned vendor; (e) All customs and excise benefits arising from any transaction of export done following the aforesaid procedures would be to the credit and entitlement of and be appropriated by the plaintiff company; ;