Shyamal Kumar Sen, J. - (1.) This appeal is directed against the judgment and order passed by the learned 2nd Civil Judge, (Sr. Divn.)at Alipore in Title Suit No. 73 of 1998, being Order No. 9 dated 21.11.1998 whereby the learned 2nd Civil Judge, (Sr. Divn) has allowed the application for temporary injunction filed by the plaintiff/respondent herein on contest against the defendant No. I/appellant without any costs and made ad interim order of injunction dated 10.11.1998 absolute till the disposal of the suit. By the ad-interim order as also by the order under appeal the appellant has been restrained from starting booking of Matiz cars for sale without allotting cars in favour of the plaintiff. By the said order the learned 2nd Civil Judge, (Sr. Divn.) also dismissed the application filed by the defendant No. I/appellant seeking vacation of the ad- interim order. For the purpose of disposing of the appeal, which was by consent of the parties treated as on the day's list and heard along with the application for stay, it is necessary to set out the facts in short : - On 18 7.1997. the Letter of Intent was issued by the appellant/defendant No. 1. On 7.8.1997, there were minutes of meeting between the appellant and the plaintiff/respondent No. 1 wherein it was agreed that the specifying action plan would be taken for activisation of dealership On 12.9.1997, the appdlant authorised respondent No. 1 to act as dealer to sell and service in the City of Calcutta. Pursuant thereto arrangements and preparations were made by the plaintiff/respondent No. 1 to act as dealer for Daewoo range of cars. On 3.8.1998. the appellant informed the respondent No. 1 that they should make available trainees for the purpose of sale of Matiz cars. It is also on record that on 18.8.1998 the plaintiff was informed that sales training programme for Mafiz would take place and it should sent its trainees at New Delhi. It appears that at one point of time on 25.8.1998 the appellant informed the plaintiff/respondent No. 1 that the plaintiff/respondent No. 1 has been selected for the purpose of Road Show of Matiz and that the car would be on display in the show room of the plaintiff-respondent No 1 on 25th and 26th October 1998. Subsequently, however, the said Road Show under the auspices of the respondent No. 1 did not take place as there were defaults on the part of the respondent No. 1 to carry out the obligations and conditions which were to be performed by the respondent No. 1. It may be noted that under the Letter of Intent the respondent No, 1 was to pay security deposit of Rs. 20 !acs. out of which only Rs. 5 lacs could be paid by the respondent No. 1, within 15 days from the date of the Letter of Intent containing the terms and conditions of the dealership.
(2.) Clause (9) of the said Letter of Intent provides as follows ;- "You shall deposit with the Company either a sum of Rs. 40 lacs as security deposit out of which Rs. 20 lacs is to be paid within fifteen days in form of Demand Draft favouring Daewoo Motors India Ltd.. and the balance of Rs. 20 lacs is to be paid whenever asked by the Company or as on alternative Bank Guarantee/mortgage to the tune of Rs 80 lacs You will be paid an interest on the deposit and the rate of the interest can be changed at the sole discretion of the Company."
(3.) The said clause specifically mention the amount which the respondent No. 1 was under an obligation to deposit as security deposit, cannot be disputed, Upto now only Rs. 5 lacs have been paid by way of security. The respondent No. 1 sought instalments to pay the arrear dues with regard to sale of Cielo cars effected by it to the extent of Rs. 33,88,525,50 p. It was outstanding for a considerable period of time. The respondent No. 1 paid such in stalments in time. The appellant then asked the respondent No. 1 to fill up the Letter of Offer for the purpose of sale of Matiz cars and also to put in at least Rs. 15 lacs by way of security The respondent No. 1 initially did not comply with the terms for deposit of security in terms of Clause (9) of the Letter of intent and later when was called upon to do so pretended that the same is not necessary. It, therefore, appears that there is specific breach of the terms and conditions of the Letter of Intent by the respondent No. 1. This aspect of the matter, however, has been totally ignored by the learned Judge of the court below. It is well settled that the party, who seeks remedy must comply with all conditions of the agreement. We are surprised that although the respondent No. 1 who was the plaintiff before the court below committed breach of the terms and conditions of contract but even then was granted relief. The order was passed on the wrong principle of law. The learned court be- low presumed promissory estoppel is applicable in this case. when it did not at all apply. The following sentences of Halasbury will clarify the position. "Agency by astoppel arises where one person has so acted as to lead another to believe that he has authorised a third person to act on his behalf, and that other in such belief enters into transactions with the third person within the scope of such stensible authority. In this case the first mentioned person is estopped from denying the fact of the third person's agency under the general law of estoppel, and it is immaterial whether the ostensible agent had no authority whatever in fact, or merely acted in excess of his actual authority.' That apart, the said order on the face of it, in our view, creates a complete deadlock and interferes with the third party's interest with whom no privity of contract is there. There is no application of mind at all in regard to balance of convenience and incovenience. No case of negative covenant was found to exist, but still then the injunction was granted in the negative form.;