JUDGMENT
S.B. Sinha, C.J.
1. This Civil Revision Petition is directed against a judgment and order dated 16th January 2001 passed by the Additional District Judge, Delhi in MCA No. 28 of 2000, whereby and whereunder an appeal preferred by the petitioner herein against an order dated 20th December 1999 passed by the learned Civil Judge in an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (in short “CPC”) in Suit No. 24/99 directing the petitioner herein to pay the arrears of minimum guaranteed payment @ Rs. 20,000/- per month w.e.f. 1st December 1998 till the date of passing of the said order and continue to pay the same at the same rate till deposal of the main suit was dismissed.
2. The basic fact of the matter is not in dispute.
3. First petitioner herein is a partnership concern having its place of business at 820, Joshi Road, Karol Bagh, New Delhi. It carries on the business of manufacturing and marketing shoes in India under the brand name “Woodland”. It entered into a Franchise Agreement dated 16th December 1995 with the respondent herein; the salient terms and conditions where of are as under:
1. The First Party shall utilise the Demised Premises exclusively for storage, display and marketing of the footwear and its other products.
2. That for use of the Demised Premises, the First Party shall pay to the Second Party commission @ 12% on total sales effected from the Demised Premises subject to minimum guaranteed payment of Rs. 20,000/- per month. The payment of the above stated commission shall commence immediately from the date of this agreement is signed and the keys of the Demised Premises are handed over to First Party by the Second Party. The above rate of commission shall be for initial period of five years from the date of execution of this agreement and thereafter the rate of commission shall be enhanced as per mutually agreed terms and conditions.
3. That the First Party shall pay to Second Party an interest free deposit of Rs. 1,00,000/- (Rupees One lac only) which is to be adjusted in 10 months by paying Rs. 10,000/- per month till the amount of Rs. 1,00,000/- is fully realised.”
4. It is not in dispute that the petitioner herein deposited a sum of Rs. 1 lakh with the respondent in terms of the said agreement and further paid a sum of Rs. 6,10,000/- since 1st January 1996 to November 1998.
5. As the petitioner did not pay the said minimum guaranteed amount to the respondent thereafter, suit was filed in the Court of Senior Civil Judge, Delhi marked as Civil Suit No. 24/99 for rendition of accounts and for mandatory injunction alleging, inter alia, therein that the petitioner has neither settled the accounts nor paid the sum of Rs. 20,000/- per month w.e.f. 1st December 1998.
6. In the afore-mentioned suit the plaintiff-respondent prayed for the following reliefs:
“(i) Pass a decree for rendition of accounts of defendant No. 1 firm for the entire sale proceeds of its footwear products for the period from 01/01/96 till date and for that purpose appoint a Commissioner/Receiver to take in possession the entire account books and other relevant records of the defendants firm and after ascertaining the same besides about the quantum of amount payable to the plaintiff in terms of Clause 2 of the Franchise Agreement dated 16th December 1995 arrived in between the parties;
(ii) Pass a decree of mandatory injunction in favor of the plaintiff and against the defendants directing the defendants to continue with the payment of minimum guaranteed amount of Rs. 20,000/- per month to the plaintiff till the settlement of the accounts, as per Clause 2 of the Franchise Agreement dated 16/12/95;
(iii) Award costs of the suit in favor of the plaintiff and against the defendants.
7. An application under Order 39 Rules, 1 and 2 of the CPC was also filed praying herein that the defendant be directed to make payment of minimum guaranteed amount of Rs. 20,000/- per month.
8. The defense of the petitioner herein in the said suits, inter alia, was that as power the said agreement the respondent had agreed to provide suitable access to the showroom from the main road with the suitable display window facing the main road. The petitioner in its written statement has also raised a counter claim to the extent of Rs. 8.89 lacs on the ground that respondents failed to provide suitable access to the showroom from the main road with a suitable display window facing the same and to make and undertake interior fittings and alterations necessary to convert the premises into a suitable showroom and as such the said premises could not be put to use, as a result whereof, the question of settling the accounts did not arise. It was further contended that the payment of Rs. 7,10,000/- was made to the plaintiff-respondent by way of mistake.
9. By reason of an order dated 20th December 1999 the learned Civil Judge, inter alia, held that having regard to the terms and conditions contained in the said agreement dated 16th December 1995, the petitioner was bound to pay the minimum guaranteed amount of Rs. 20,000/- per month.
10. The learned Civil Judge in terms of Order 39 Rule 1 and 3 of the CPC allowed the application filed by the respondent herein.
11. Feeling aggrieved the petitioner preferred an appeal before the Additional District Judge, Delhi which was marked as MCA No. 28/00. By reason of the impugned judgment dated 16th January 2001 the said appeal has been dismissed.
12. Mr. Abhinav Vashisht, leaned counsel appearing on behalf of the petitioner would submit that although the suit was styled as a suit for accounts and mandatory injunctions, in effect and substance, the same is a money suit. Learned counsel would contend that no interim mandatory injunction could have been issued. Learned counsel would contend that provisions of the Specific Relief Act would stand as a bar in passing an order of mandatory injunction. It was further submitted that in a case of this nature even provisions of Order 39 Rules 1 and 2 of the CPC would not be applicable.
13. Mr. Ravinder Sethi, learned counsel appearing on behalf of the respondent would submit that the conduct of the petitioner by making payment of the minimum guaranteed amount @ Rs. 20,000/- per month would clearly show that the parties have understood that such a sum would be payable irrespective of the fact that as to whether the petitioner has been able to put the premises in use or not. According to learned counsel, having regard to the terms of the agreement, respondent cannot be deprived of the minimum guaranteed amount of Rs. 20,000/- per month. Learned counsel would contend that even income-tax was deducted at source, in terms of the provisions of the Income-tax Act which would clearly go to show that the petitioner all along proceeded on the basis that the amount of minimum guarantee is payable.
14. Order 39 Rules 1 and 2 and 10 of the CPC read thus:
Order XXXIX
Temporary Injunction and Interlocutory Orders
Temporary injunctions
1. Cases in which temporary injunction may be granted – Where in any suit it is proved by affidavit or otherwise-
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors.
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach –
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
10. Deposit of money etc. in Court-
Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.
15. The determination of the issues between the parties would depend upon the interpretation of the agreement in question. The agreement was entered into on 16th December 1995. The petitioner entered into the said agreement with its eyes open. It is not the contention of the petitioner that the respondent herein was not owing or not in possession of the front portion of basement at E-584, G.K.-II, New Delhi on main road. It is also not the contention of the petitioner that the area of the said premises is not 2000 sq. ft. The parties before entering into the agreement would be presumed to have known the advantages and disadvantages of the premises being used as a showroom. In terms of Clause 2 of the said agreement the petitioner was to pay commission @ 12% on total sales effected from the demised premises subject to minimum guaranteed payment of Rs. 20,000/- per month for use of the demised premises.
16. It may be true as has been contended by the leaned counsel appearing for the petitioner that the question of payment of commission would have arisen if any sale is effected from the demised premises. But prima facie, I am of the opinion that the respondent herein was entitled to minimum guaranteed payment of Rs. 20,000/- irrespective of the fact as to whether the premises in question had been put to use as a showroom or not. If the petitioner for one reason or the other failed to start its showroom or use the premises as such, the owner of the property, who has been deprived of the use thereof or letting out the same to another person cannot suffer therefore. The parties also interpreted the said agreement to the said effect as otherwise there would be no reason whatever as to why the petitioner had paid the said sum of Rs. 20,000/- from the date of the agreement till November 1998 i.e. for a period of about three years. The relationship between the parties prima facie was that of a landlord and tenant. It may be that rate of rent was a variable one depending upon the extent of commission to which the petitioner became liable but which in turn was dependant upon the total sales effected from the demised premises.
17. Only because the rate of rent was variable the same by itself, in the opinion of the Court, would not make the petitioner immune from the liability to pay the minimum guaranteed amount of Rs. 20,000/- per month.
18. It is not in dispute that in terms of the said agreement the respondent has handed over possession of the demised premises in favor of the petitioner herein. The expression that the first party was desirous of taking demised premises is also of great significance.
19. Clause 4 of the said agreement clearly stipulates that, in the event amount of commission is not paid for any reason whatsoever for consecutive period of three months, the petitioner was to vacate the said demised premises and hand over the vacant possession thereof to the respondent.
20. It has been accepted at the bar that in a case of landlord and tenant the amount of rent can be directed to be paid by a Court in terms of Order 39 Rule 10 of the CPC. In that view of the matter, this Court is of the opinion that, in a situation obtaining in the present case also, the Court cannot be said to be denuded of its power in passing such orders.
21. In any event, both the Courts below have arrived at a finding that the petitioner herein was liable to pay the said amount of minimum guaranteed payment @ Rs. 20,000/- per month to the respondent.
22. In that view of the matter, this Court is of the opinion that, it is not a fit case where having regard to the proviso (b) appended to Section 115 of the CPC this Court should exercise its discretionary jurisdiction in varying or reversing the order as, if the same is allowed to stand would not occasion any failure of justice or cause irreparable injury to the petitioner.
23. For the reasons afore-mentioned, I do not find any merit in this Civil Revision Petition, which is accordingly dismissed with costs.