In this application under Section 9 of the Arbitration and Conciliation Act, 1996 (in short, “the Act of 1996â€) the petitioner has prayed for orders
of injunction against the respondent for enforcement of a negative covenant in the agreement dated July 01, 2013, as amended by the amendment
agreement dated April 28, 2016, which also contains an arbitration agreement between the parties.
The petitioner carries on business, inter alia, of production of films. It is the case of the petitioner that on July 01, 2013 it entered into a Film Artist
Agreement (hereinafter referred to as “the said agreementâ€) with the respondent, an actor whereby the latter agreed to render his services as a
part of the starcast on an exclusive basis to the petitioner as per the production schedule to be communicated to him from time to time for a premium
remuneration. In this regard, the petitioner has disclosed a copy of the said agreement where the petitioner and the respondent have been described as
“the producer†and “the artistâ€, respectively. According to the petitioner, as per clauses 5.1.9 and 9.3 of the said agreement the respondent
confirmed his engagement for providing services exclusively to the petitioner for the entire term of the said agreement and that during the term of the
said agreement he shall not, without the written consent of the petitioner, create or participate in any manner in any other film, television serial,
advertisement outside the banner of the petitioner. The said agreement was valid for a period of three years. On April 28, 2016 the parties herein
executed an addendum agreement (hereinafter referred to as “the said addendumâ€) extending the validity of the said agreement to a period of
five years. The clauses pertaining to the remuneration to be paid by the petitioner to the respondent were also modified and clause 2A was inserted in
the said agreement. The petitioner claims that by clause 2A of the agreement inserted by the said addendum, the respondent agreed to render his
services to the petitioner on an exclusive basis for the extended term of the agreement till June 30, 2018 and thereafter for a period of three months,
that is, up to September 13, 2018. The respondent signed with the petitioner for altogether five films out of which three films have already been
released and the remaining two films are under production. Under the said agreement, the respondent agreed not to enter into any other arrangement
and/or agreement and/or engagement and/or employment with any third party for providing any kind of service or performance in theatre, television
for any other party relating to media and entertainment industry or otherwise, without obtaining a prior written approval from the petitioner. The
petitioner claims that it never failed to perform its obligations under the agreement and it is also ready and willing to perform the said agreement.
However, in early December 2017, the petitioner came to know that the respondent has engaged himself for providing film related services to a third
party namely, Surinder Films for which he did not obtain any written consent from the petitioner. By a notice dated December 12, 2017 the petitioner
called upon the respondent, inter alia, to cease from providing his services including any shooting, appearance or production related activity to any third
party in breach of the said agreement as amended by the said addendum. The petitioner alleges that the conduct of the respondent has caused it to
suffer irreparable damage, loss of business profits and has jeopardized its upcoming productions. In the said letter the petitioner further claimed that in
the absence of an affirmative and timely action on the part of the respondent, it shall be bound to pursue every available remedy including injunction,
specific performance, claim of damages against the respondent. In response to the said notice by an electronic message informed the petitioner that he
does not have any copy of the said addendum. Thereafter, the petitioner forwarded a copy of the said addendum to the respondent. On December 26,
2017 when the representative of the petitioner met the respondent personally, the latter expressed his unwillingness to back out of the other film for
which shooting has already started. The petitioner alleges to have made a considerable amount of investment on the respondent so as to make him a
star from a non-entity. It has also developed the respondent’s acting skill and spent enormous sums for building up his brand. The petitioner,
therefore, seeks enforcement of the exclusivity term incorporated in the said agreement to recover its investment on the respondent, both direct and
indirect, exceeding Rs. 1 crore. Any further breach of the said exclusivity term by the respondent would result in interference with the petitioner’s
existing and upcoming projects/production thereby causing irreparable harm and injury to itself. The petitioner further alleges that under the said
agreement the respondent acknowledged the production of the film is an unique, unusual and extra ordinary character, the loss of which cannot be
reasonably compensated by damages and, therefore, he agreed that the petitioner shall be entitled to seek specific performance of his services and
obligations under the said agreement. Accordingly, the petitioner is entitled to seek specific performance of the said agreement by the respondent, not
only in law but also under the specific terms of the said agreement. The petitioner asserts that even if specific performance of the said agreement
cannot be granted, the respondent ought to be restrained from acting in breach of the negative covenant contained in clause 2A of the said agreement.
The respondent is, however, not interested to perform his obligation under clause 2A of the said agreement giving rise to the disputes between the
parties to be adjudicated as per the arbitration agreement contained in clause 15 of the said agreement. Thus, the petitioner is taking all necessary
steps to refer the disputes to arbitration and filed this application under Section 9 of the Act of 1996 seeking for, inter alia, an order of injunction
restraining the respondent from performing any arrangement and/or engagement and/or agreement with any other producer, director or other third
party, in breach of the negative covenant in the said agreement.
On December 28, 2017 the petitioner moved this application before a learned Single Judge of this Court sitting in Vacation Bench and obtained an
order of injunction restraining the respondent from anyway acting, participating or otherwise being engaged in any film, theatre or television production
for public display until January 05, 2018. By the said order the point of maintainability of the application was kept open. On January 5, 2018 when this
application was taken up for hearing the petitioner obtained leave to file a supplementary affidavit. Thereafter, the petitioner filed a supplementary
affidavit disclosing a letter dated December 28, 2017 issued by the respondent alleging that on earlier occasions, he had, with the knowledge of the
petitioner and without its written consent, engaged himself in the production of a bengali film by Surinder Films and also with another producer, namely
M/s Heartbeat Production and the said films were released prior to the petitioner’s notice dated December 12, 2017. The respondent further
alleges that when the petitioner stopped his remuneration from the month of June, 2017 he is presently doing another film with the said M/s. Surinder
Films which is already on floor for the last couple of months. The respondent denies that the petitioner has suffered any damage or loss of business
due to his involvement in the film produced by the said Surinder Films. He has, however, expressed readiness and willingness to render his services
with honest and sincerity to the petitioner. In the supplementary affidavit, the petitioner alleged that it has already paid Rs. 18.13 lakhs to the petitioner
which is over and above the sum of Rs. 16 lakhs payable to the respondent under the said agreement as amended by the said addendum for the first
four films and there has been an excess payment of Rs. 2.13 lakhs to the respondent.
Mr. Abhrajit Mitra, learned senior advocate appearing in support of the application submitted that in the present case, the petitioner has performed all
its obligations to the respondent under the said agreement as amended by the said addendum. Although for the four films already completed the
respondent was entitled to receive Rs. 16 lakhs but the petitioner has already paid Rs. 18.13 lakhs to the respondent out which Rs. 2.13 lakhs is on
account of advance payment to be adjusted towards the fifth film for which shooting is yet to commence. It was further submitted that since the
petitioner has not committed any breach of the said agreement the respondent has not terminated the agreement. It was contended that the respondent
has on his own volition entered into the said agreement as well as the said addendum and he is bound by the negative covenant contained in clause 2A
of the said agreement. By referring to the provisions of Section 42 of the Specific Relief Act, 1963 (in short, “the Act of 1963â€) the learned
counsel for the petitioner submitted that in the instant case, the negative covenant contained in the said agreement is binding upon the respondent and
the petitioner is entitled to enforce the negative covenant against the respondent. Pressing for the interim relief against the respondent for
enforcement of the negative covenant contained in the said agreement Mr. Mitra relied on the decisions of the Supreme Court in the case of Gujarat
Bottling Co. Ltd. & Anr.- vs.- Coca Cola Co. and Ors. reported in (1995) 5 SCC 545, Percept D’Mark (India) (P) Ltd.- vs.- Zaheer Khan &
Anr. reported in (2006) 4 SCC 227, the Single Bench decisions of this Court in the cases of Vijaya Minerals Pvt. Ltd. vs.- Bikash Chandra Deb
reported in AIR 1996 Cal 67, Makhanlal Natta- vs. Tridib Ghosh & Anr. reported AIR 1993 Cal 289 and in the case of Hi-Tech Systems & Services
Ltd. -vs.- Suprabhat Ray & Ors. reported in AIR 2015 Cal 261. The petitioner also relied on the Division Bench decisions of this Court in the cases of
Bikash Chandra Deb- vs.- Vijaya Minerals Pvt. Ltd. reported in (2005) 1 CHN 582 and Board of Acting Governor of the La Martienere & Ors.- vs.-
National Engineering Industries Ltd. & Ors.reported in (2005) 2 CHN 207. Relying on the said decisions it was strenuously argued for the petitioner
that in the present case, the negative covenant contained in the said agreement whereby the respondent agreed to exclusively provide his services to
the petitioner does not amount to a contract in restraint of trade under Section 27 of the Contract Act, 1872. It was urged that the petitioner has
fulfilled the three essential ingredients to obtain an order of injunction against the respondent for enforcement of the negative covenant entered into by
the latter, first the petitioner has made out a prima facie case, secondly the balance of convenience wholly lies in favour of the petitioner and the third
that the petitioner would suffer an irreparable injury if its prayer for injunction in this application is not allowed. It was suggested by the petitioner that
not only the present petition for enforcement of the aforementioned negative covenant by the respondent is maintainable, the petitioner is also entitled
to obtain the order of injunction restraining the respondent from committing any breach of the said negative covenant. Mr.Mitra strenuously prayed for
extension of the interim order dated December 27, 2017 passed by a learned Single Judge of this Court in this application as mentioned above.
Mr. Sudhaswata Banerjee, learned advocate appearing for the respondent, on the other hand, raised strong objection to the maintainability of this
application. He opposed the prayer of the petitioner for extension or re-imposition of the interim order of injunction passed on December 27, 2018. It
was submitted that in paragraph 21 of the application the petitioner has alleged to have made considerable amount of investment on the respondent so
as to make him star from a nonentity and the petitioner has developed the respondent’s acting skill and spent enormous sums for building up his
brand. The petitioner has further alleged that the exclusivity term incorporated in the said agreement has to be enforced to enable the petitioner to
recover its investment on the respondent, both direct and indirect exceeding Rs. 1 crore. Mr. Banerjee contended that neither the said agreement nor
the addendum contemplates the petitioner has either made or is required to make any investment on account of the respondent or that it has anything
do to develop the respondent’s acting skill. In any event the petitioner has not disclosed any documentary evidence to substantiate such alleged
claim. It was further submitted by the letter dated December 28, 2017 the respondent asserted that on earlier occasions the petitioner raised no
objection to his doing films with M/s. Surinder Films in their solo production and also with others namely, M/s. Heartbeat Production in their film and
that all these films were released much prior to the issuance of the said notice dated December 12, 2017 by the petitioner. Thus, it was strenuously
urged by the learned counsel for the respondent that even it were to be concluded that the negative covenant in clause 2A of the said agreement is
valid and lawful in that event also the petitioner had waived its right to enforce the said negative covenant against the respondent.
It was next submitted by the respondent that clauses 10.2 and 10.3 of the said agreement expressly provides for the petitioner’s right to terminate
the contract in case of any breach committed by the respondent and such termination shall be without prejudice to the right of the petitioner to claim
for all losses or damages, if any suffered on the date of termination. Therefore, according to the respondent, the said agreement contemplates that the
parties had agreed that damages are adequate compensation for the petitioner in the event of termination of the contract and it is settled law that when
a plaintiff is entitled to claim damages against the defendant for committing any breach of the contract, the Court shall not pass an order of injunction
at the instance of the plaintiff against the defendant for enforcing even a negative covenant. In this regard, the learned counsel for the respondent
relied on the Supreme Court in the case of Zaheer Khan(supra) [para 64], an unreported decision dated April 05, 2015 passed by the learned Single
Judge of the Madras High Court in the case of Royal Orchid Hotels Ltd.- vs.- Ferdous Hotels Pvt. Ltd. The respondent also relied on a Single Bench
decision of the Bombay High Court deliver by Dr. D.Y, Chandrachud (as His Lordship then was) in the case of Percept Talent Management Pvt.
Ltd.-vs-Yuvraj Singh. It was lastly contented by the respondent that it is settled law that when a contract provides for the remedy of the plaintiff in the
suit to claim damages for any breach committed by the defendant, the plaintiff cannot be held to have suffered any irreparable injury by any breach of
contract committed by the defendant and consequently, the plaintiff cannot obtain any order of injunction against the defendant. In support of such
contention, the respondent relied on the decision of the Supreme Court in the case of M/s. Best Sellers Retail (India) Pvt. Ltd vs. Aditya Birla Nuvo
Ltd. & Ors. Urging all these grounds, Mr. Banerjee strenuously pressed for dismissal of the application by the petitioner with costs.
In reply, Mr. Chayan Gupta, learned advocate appearing for the petitioner submitted that section 23 of the Act of 1963 lays down that the right of the
plaintiff in a suit for specific performance of a contact to claim damages against the defendant for breach by the latter, is no bar for the plaintiff
obtaining a decree for specific performance. He further submitted that in any event, as per Section 42 of the of Act of 1963 even though the petitioner
is unable to obtain specific performance of the said agreement by the respondent it can obviously obtain an order of injunction against the respondent
for enforcement of the negative covenant of the said agreement.
In order to appreciate the rival claims of the parties, this Court has to consider the scope of the said agreement between the parties. Clauses 2.1, 2.2
and 2.3 of the said agreement provides as follows:-
“2.1. Producer hereby engages the Services of the Artist in his/her capacity as an actor/actress and the Artist hereby accepts, to perform the role
of a principal character/es in the Film/s (the “part†or “Part/sâ€), subject to such changes as may be reasonable necessary for the successful
portrayal of the character/es in the Film/s.
2.2 The Artist shall render the said Services to Producer on an exclusive basis in accordance with the Production Schedules as communicated to the
Artist from time to time. The Production Schedules shall be subject to change by Producer depending on the availability of other artists, shoot location,
logistics etc. and the Artist shall make available the Services in the manner specified herein as per the revised schedules as communicated. The Artist
shall ensure his/her presence and active constructive participation at the locations, dates and times specified in the Production Schedule(s) as the case
may be.
2.3 In the event the Producer requires the Services of the Artist on extra dates and places ( the “Additional Periodâ€) in addition to those specified
in Production Schedules and/or the Revised Schedule(s) to enable the successful completion of the Film/s the Artist shall make available the Services
on a best efforts, priority basis and shall be present on such further dates and locations as may be requested by Producer. It is clarified that the Artist
shall not be entitled to any additional payment for rendering the Services during this Additional Period as requested by Producer. Further, the Artist
shall participate in all promotional events of the Film/s including but not limited to public appearances, live performances and other publicity events for
no additional payment. For such promotional activities the Artist shall make himself/herself available for a period of minimum thirty days from
promotional activities prior to the release of each of the Films.â€
Further clause 5.1 of the said agreement provides, inter alia, as follows:-
“5.1 The Artist shall
5.1.1 Perform the Services required under this Agreement exclusively for Producer to the utmost of the Artist’s skill and ability in accordance
with the Production Schedules or the Revised Schedules and the Call Sheets as the case may be.
5.1.2 Perform the Services in accordance with the instructions of the director and producer.
5.1.3 Not give any live performances or public performances in respect of the Film/s or any part thereof, including any songs in the Film/s or in respect
of the Part/s portrayed by the Artist in the Film/s without the prior written permission of Producer. Not take part in any event, programme, shows, etc.
5.1.4…..
6.1.9…..â€
Clause 10.2 of the said agreement provides for the right of the petitioner to terminate the said agreement inter alia, on the ground of certain breaches
committed by the respondent. As per clause 10.3.2 the petitioner can also claim damages or losses from the respondent on account of direct or
indirect consequence of any unauthorised absence or non-performance by the latter.
In an application under section 9 of the Act, 1996, the Court has the power to pass an order for interim measure of protection of the subject matter of
dispute, as well as to pass an order of interim injunction. From the provisions contained in the said agreement between the parties as quoted above, it is
prima facie apparent that the contract involves the performance of the service by the respondent which are purely personal and the specific
performance of such contact by the respondent would be prima facie barred by clauses (a), (b) and (d) of sub-Section (1) of Section 14 of the
Specific Reliefs Act, 1963. The contract between parties is purely a contract for personal services of which specific performance cannot prima facie
be granted. Accordingly, the argument advanced by the petitioner claiming specific performance of the said agreement has no merit in this case.
Consequently, the petitioner cannot obtain any order of injunction against the respondent for enforcement of any right for specific performance of the
said agreement.
The petitioner has also sought to enforce the negative covenant contained in Article 2A of the said agreement incorporated by the said addendum
which is extracted hereinbelow:-
“Article 2A Exclusivity In lieu of the Remuneration payable to the Artist under this Agreement, the Artist confirms his engagement for providing
Services exclusively to the Producer for the Term of the Agreement. The Artist further undertakes to ensure that for the duration of Term and for
a period of 3 (three) months thereafter (referred as “Exclusivity Periodâ€). Artist shall not enter into any arrangement for providing services or
their performance on theatre, television, either directly or indirectly, express or implied, with any other party, including but not limited to any television
company, production house, producer,, channel, recording company, music composer(s), music director(s), ad-agency or any third party(ies) from the
media and entertainment industry, unless the same is approved by the Producer in writing. Any engagement by Artist after the expiration of
Exclusivity Period shall in no manner be similar to the contents of the character depicted by the Artiste in the Films produced by Producer or a
colorable variant of the same.
The above negative covenant contemplates that not only during the subsistence of the said agreement but, even beyond the expiry of the said
agreement the respondent shall not enter into any arrangement for providing any services or performance on theatre, television, either directly or
indirectly, express or implied, with any other party, unless, the same is approved by the respondent in writing. The respondent is further precluded,
even after expiration of the said agreement, from engaging himself in any role which is similar to the contents of the character depicted by him in any
film produced by the petitioner or a colorable variant of the same. It is trite law that negative covenant which operates beyond the expiry of the term
of the contract is void on the ground of being a restraint on trade under section 27 of the Contract Act. In this regard ready reference may be made to
the decisions of the Supreme Court in the cases of Niranjan Shankar Golikari -vs. -
Century Spinning and Manufacturing Company Limited reported in AIR 1967 SC 1098, Gujarat Bottling Co. Ltd. (supra) and Zaheer Khan (supra).Â
Therefore, it is clear that the negative covenant contained in clause 2A of the said agreement in so far as the same precludes the respondent from
entering into any arrangement for providing services or performance on theatre or otherwise in favour of any third party without first obtaining the
written approval of the petitioner and not to engage himself in any role similar to the content of the character depicted by himself in any film produced
by the petitioner, even after expiry of the agreement is void under section 27 of the Contract Act and the petitioner cannot enforce the same.
Now let us consider whether the petitioner is entitled to obtain an injunction against the respondent for enforcement of negative covenant during the
subsistence of the said agreement. In the case of Gujarat Bottling Co. Ltd. (supra), the Supreme Court laid down the following tests for exercising
discretion by the Court while granting an order of injunction towards enforcement of a negative covenant by the plaintiff against the defendant:- (i)
whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favvour of the plaintiff; and (iii) whether the plaintiff would
suffer irreparable injury if his prayer for interlocutory injunction is disallowed. In paragraph 43 of the said decision, the Supreme Court further held:-
“The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the
Plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way
of interlocutory injunction is granted to mitigate the risk of injustice to the Plaintiff during the period before that uncertainty could be resolved. The
object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated
in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be
weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his
own legal rights for which he could to be adequately compensated. The Court must weigh one need against another and determine where the
“balance of convenience†lies.â€
Even the argument based on section 42 of the Act of 1963 does not advance the case of the petitioner. Section 41 of the Specific Relief Act, 1963
lays down circumstances when the Court cannot pass an order of injunction. Amongst others, clause (e) of section 41 of the Act of 1963 provides that
an injunction cannot be granted to prevent breach of contract, the performance of which would not be specifically enforced. Section 42 of the Act of
1963 lays down that where the contract comprises affirmative agreement to do certain act, the circumstances that the Court is unable to compel
specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. The non-
obstante clause contained in section 42 of the Act of 1963 lifts the bar under section 41(e) to the grant of an injunction to prevent breach of a contract
the performance of which would not be specifically enforced. However, as held by the Supreme Court in the case of Gujarat Bottling Co. Ltd. (supra)
while considering the prayer for an order of injunction against a party for performance of the negative covenant, the Court has to exercise its
discretion by applying sound judicial principles to fulfil the three tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of
convenience is in favvour of the plaintiff; and (iii) whether the plaintiff would suffer irreparable injury if his prayer for interlocutory injunction is
disallowed. In the said case the Supreme Court found that the plaintiff Coca Cola Co. Ltd., the respondents in the special leave petition, had not only
made out a prima facie case for enforcement of the negative covenant by the defendant no. 1 Gujarat Bottling Co. Ltd.(supra)Â the balance of
convenience was also in favour of the plaintiff for enforcement of the said negative covenant against the defendant no. 1 Gujarat Bottling Co. Ltd.
(supra). In paragraph 45 of the said judgement in the case of Gujarat Bottling Co. Ltd.(supra) the Supreme Court found that the refusal to pass an
order of injunction for enforcement of a negative covenant in favour of the plaintiff Coca Cola Co. Ltd. would result in the latter suffering irreparable
injury. On these grounds the Supreme Court upheld the order of injunction passed by the High Court against the defendant no.1 enforcing the negative
covenant.
In the present case, having regard to the negative covenant contained in clause 2A of the said agreement which is subsisting, the petitioner might be
successful to make out a prima facie case that the same is lawful during the subsistence of the said agreement. However, as regards the other two
requirements for granting of interlocutory injunction, viz., balance of convenience and irreparable injury, I find that under the said agreement the
petitioner is not required to do anything to improve the skill of the respondent as an Artist. As a consideration for the respondent acting in any film
produced by the petitioner, the latter has to pay only the remuneration to the respondent at the agreed rate. It could not be the case of the petitioner
that it is only producing films with the respondent alone and not with any other artist. The respondent in his letter dated December 28, 2017, relied
upon by the petitioner in its supplementary affidavit, asserted that on earlier occasions the petitioner raised no objection to his doing films with M/s
Surinder Films as also M/s Heartbeat Productions without obtaining its prior approval. In its supplementary affidavit the respondent has not disputed
the said facts. Even in its notice dated December 12, 2017 addressed to the respondent the petitioner has alleged that in the event the respondent does
not remedy the breach of the negative covenant it shall pursue its available remedy, inter alia, to claim damages against him. It has not been suggested
by the petitioner that the respondent does not have the financial capacity to pay the damages, if any, awarded against him in the arbitral proceeding. In
these facts, I do not find that the balance of convenience is in favour of the petitioner or that if its prayer for injunction under section 9 of the Act of
1996 is disallowed the petitioner would suffer any irreparable injury.
In paragraph 77 of the Single Bench decision in the case of Vijaya Minerals Pvt. Ltd (supra) it was held as follows:
“77. In any event, there is a negative covenant in the contract, and in such a case, the question of balance of convenience and whether damages
would be adequate remedy or not becomes immaterial.â€
In an appeal against the said judgment decision the Division Bench, in the case of Bikash Chandra Deb (supra), did not interfere with the finding of the
learned Single Judge as quoted above.
The ratio in the case of Gujarat Bottling Co. Ltd. (supra) decided by the Supreme Court on August 4, 1995 could not be considered either by the
learned Single Judge in the case of Vijaya Minerals Pvt. Ltd (supra) or by the Division Bench of this Court on July 10, 1995 in the case of Bikash
Chandra Deb (supra). In view of the law laid down by Supreme Court in the case of Gujrat
Bottling Co. Ltd., as mentioned above, the Single Bench decision of this Court in the case of Vijaya Minerals Pvt. Ltd. (supra) and the Division Bench
decision of this Court in the case of Bikash Chandra Deb (supra) are no more good law.
In the case of Makhanlal Natta (supra) while dealing with the plaintiff’s prayer for an order of injunction against the first defendant for
enforcement of a negative covenant , the learned Single Judge found the plaintiff not only having made out a prima facie case and the balance of
convenience to be in his favour but the plaintiff had also demonstrated that there were substantial grounds for granting an order of injunction for
protecting him against the irreparable injury. However, in the facts of the present case as discussed above when the plaintiff the balance of
convenience is not in favour of the petitioner and the petitioner would not suffer any irreparable injury for not allowing his prayer for an order of
injunction I do not find the decision of the learned Single Judge of this Court in the case of Makhanlal Natta (supra) to be in any assistance to the
petitioner. So far as the Division Bench decision of this Court in the case of Board of Acting Governor of the La Martienere & Ors. (supra), I find
that in paragraphs 90, 91, and 92 of the said decision although, there is a finding that the plaintiffs appellants had made out a prima facie case and the
balance of convenience were also in their favour but there is no finding with regard to the third test laid down by the Supreme Court in the case of
Gujarat Bottling Co. Ltd. (supra), that is , whether the plaintiff would suffer an irreparable injury if his prayer for his interlocutary injunction is
disallowed. In any event, the facts of the instant case as already discussed above are totally different from those involved in the said case of Board of
Acting Governor of the La Martienere & Ors. (supra). In the present case, I have already held the second and third tests for passing of an order of
injunction for enforcement of a negative covenant laid down by the Supreme Court in the case of Gujarat Bottling Co. Ltd. (supra) to be against the
petitioner. Therefore, even the decision of this Court in the case of Board of Acting Governor of the La Martienere & Ors. (supra) has no bearing in
this case. The last decision relied by the petitioner of a learned Single Judge of this Court in the case of Hi-Tech Systems & Services Ltd. (supra) also
does not have any application in this case.
For all the foregoing reasons, the petitioner is not entitled to obtain any order in this application.
In view of my above findings, there is no point in keeping this application pending. Accordingly, the application A.P no.1160 of 2017 stands rejected.
Since the respondent was not called upon to file any affidavit, the allegations made, against him in the application, shall be deemed not to have been
admitted.
There shall, however, be no order as to costs.
Urgent certified copy of this judgment, if applied for, be made available to the parties. Â Â
