AI Structured Summary
Not yet generated for this judgment
Judgment
Protik Prakash Banerjee, J
A steel manufacturer sued a celebrity, her management agency and a competitor, for specific performance of a contract dated August 7, 2017 and
also for permanent and mandatory injunctions, which would, among other things, have the effect of enforcing a negative covenant in the contract. The
contract in question, very common in these days, envisaged that for a certain consideration, the celebrity would endorse or promote only the products
of the plaintiff/steel manufacturer for the period during which the agreement would subsist and would not endorse or promote the products of any
rival/competitor. The plaintiff alleged breach on the part of the celebrity, induced among others, by the rival, who was said to benefit from the breach.
The plaintiff sought interlocutory reliefs in its suit and an ex parte ad interim order of injunction was passed on September 15, 2018, by the learned
Judge, VIth Bench, City Civil Court at Calcutta in Title Suit No.1215 of 2018 without prior service of any notice or copy of the petition on the
defendants. The celebrity and the rival preferred two several appeals against this ex parte ad interim order, which were registered as AST Nos.62 and
63 of 2018 respectively. While this court was hearing the applications in connection with the appeals to consider the question of interim reliefs, the
learned court below proceeded to extend the original ad interim order. Against the extension of the ad-interim orders, two further appeals being
FMAT Nos.1001 and 1002 of 2018 were preferred by the celebrity and the rival, respectively. During its pendency, the rival had applied under order
39 Rule 4 of the Code of Civil Procedure.
This court directed that the application for vacating the interim order taken out by the celebrity be treated as a written objection to the application for
interlocutory reliefs in the court below and that such application be heard out alongwith the injunction application, in the meanwhile. The learned court
below did so, and was pleased to make the original ad interim order, as extended, absolute till the disposal of the appeal being AST No.62 of 2018 and
the connected application before this court, by an order dated October 3, 2018. This was further challenged by the celebrity and the said rival by way
of FMAT 1054 and 1055 of 2018 respectively. In each of these appeals, the respondent no. 1 is the plaintiff. The plaintiff has also carried that part of
the order dated October 3, 2018 aforesaid which directs the interim order to continue till the disposal of the appeal (AST No.62 of 2018) and the
connected application by this court. This appeal, where the plaintiff is the appellant, has been registered as FMAT No.1058 of 2018. This court
directed on October 12, 2018 that this last appeal at the instance of the plaintiff would be disposed of together with the said three appeals where the
plaintiff was the respondent No. 1.
While hearing the parties on the application for stay, with the consent of the parties this court heard the parties on the merits of the appeals
themselves, dispensing with all formalities, including notice since all parties who had appeared in the court below were represented by learned counsel.
The appellant celebrity has alleged based on the pleadings of the respondent no. 1 and the documents it had produced that it was the said
respondent who was in breach of the contract and as a wrongdoer, it was disentitled to claim an equitable relief such as an injunction at the
interlocutory stage. The appellant rival supports this contention in its independent appeals. The respondent no. 1 on the other hand alleges that the
documents including digital evidence generated by the celebrity/appellant herself, show that she was in breach. To understand the rival contentions, a
brief summary of the contractual terms of which the breach is complained, is to be noted.
The parties relied upon the following contractual clauses: -
“1. TERM
1.1 Unless terminated earlier this Agreement shall be valid for a period of 2 (two) years, commencing on the Effective Date till 6 August 2019
(hereinafter referred to as the “Termâ€). Upon expiry or earlier termination of this Agreement, the Company shall remove the promotional and
advertising materials bearing the Celebrity, within a period of 90 days thereof.
1.2 This Agreement may be renewed at the option of the Company, on mutually agreed terms and conditions.
ENDORSEMENT RIGHTS
2.1 In consideration of the retainer fees (as set out in Clause 3) and on the terms and conditions herein mentioned, the parties hereby agree to the
following:
2.1.1 Scope of services: During the Term, the Celebrity shall make himself available for 3 (three) Days per year (“Committed Daysâ€), on the
dates as the Company may require for shoot and promotional appearance for endorsing and promoting the products, through photo-shoots, video-
shoots, ad-campaign shoots, retail and promotional appearances, dealer meets, voice over, signing souvenirs and press and media appearances. Any
unutilized Committed Days(s) during a year shall be rolled over to consecutive year during the Term. The Celebrity shall post, publish, share, comment
and like the media contents or advertising materials provided by the Company, from time to time, on various personal social media platforms of the
Celebrity, including but not limited to, Facebook, Twitter and Instagram. It is hereby clarified that the Committed Days shall include such number of
days as mentioned in Clause 2.1.1 above, each constituting of an eight-hour shift excluding any travel time (“Dayâ€).
2.1.2 Promotional Materials: The Company shall be entitled to sue the promotional and advertising materials or any promotional activities featuring the
Celebrity, during the Term for the promotion of the products, in any manner, including but not limited to, electronic, audio, visual, audio-visual, print and
digital media which includes, but not limited to, posters, banners, magazines, newspapers, radio, cinema, outdoor advertising, company reports,
publications, television and such other ATL and BTL items.
2.1.3. Non-compete: Notwithstanding anything to the contrary, Celebrity hereby undertakes that during the term, Celebrity shall not directly or
indirectly, promote, market and/or endorse any product and/or activity, which is or may be construed to be similar, identical, deceptively similar or in
competition with the products
RETAINER FEES
3.1 In consideration of the services to be rendered by the Celebrity and the obligations undertaken by the Celebrity under this Agreement the
Company agrees to pay to the Celebrity, annual retainer fees of Rs. 5,75,000/- (Rupees five lacs seventy five thousand only) (“Retainer Feesâ€)
plus GST as may be applicable, subject to the deduction of income tax under the applicable Law, payable in the following manner.
(i) 50% of the Retainer Fees to be paid on the date of commencement of first year and second year respectively;
(ii) 50% of the Retainer Fees to be paid within 15 days from the date of commencement of first year and second year respectively.
TERMINATION
6.1 During the Term, the Company shall have the right to terminate this Agreement with 30 (thirty) days’ prior written notice to Celebrity, without
assigning any reason whatsoever.â€
The case of the respondent no. 1 as made out in the plaint, is that it entered into the above agreement on August 7, 2017, and thus the appellant
celebrity was bound by the terms of the agreement till August 6, 2019. Within this period, even after it “duly performed†its part of the contract,
the celebrity chose to endorse the product of its rival in breach of the negative covenant as in Clause 2.1.3 above, which the plaintiff came to know
only on September 13, 2018. It has alleged that the celebrity treated the contract to be subsisting by retweeting a product of the plaintiff on September
13, 2018 itself. This it says, continues the endorsement of the products of the respondent no. 1 even while the appellant celebrity was, without the
consent of the respondent no. 1, promoting the competing products of the appellant rival. What “endorsement†means is defined as part of Clause
2.1.1 according to both the sides. Therefore, the plaintiff has sued for specific performance, which would inter alia require the strict compliance of the
negative covenant during the subsistence of the agreement.
The celebrity and the rival, the two appellants, on the other hand, allege that the plaintiff is in breach of the contract so far as its most essential part
is concerned, being the payment of consideration, which appears from the case made out in the plaint and the interlocutory application and the
documents annexed thereto, which are all part of the records before this court. For this, a few dates, and facts, as appear from the plaint and the
contract, are necessary to be considered. Admittedly, the plaintiff tendered to the celebrity the amount mentioned in clause 3.1 (i) of the contract on
August 7, 2017 which shows making of consideration agreed to be fifty percent of the retainer fee for the first year of the contract, but admittedly the
plaintiff did not even send the cheque for the said amount for the second year of the contract, before September 14, 2018, whereas under the contract
it was to send the said fifty percent of the retainer fee, less income tax and with applicable GST, by the 7th day of August, 2018 (the date of
commencement of the second year of the contract). The fact that the plaint was presented on the very day after the plaintiff posted the cheque for
the entire amount mentioned in clause 3.1., both sub clauses (i) and (ii) and not just the fifty percent, by a cheque dated September 14, 2018, which the
respondent no. 1 has itself annexed to the plaint as Annexure “Câ€, is submitted to be a demonstration that this gesture was only for the purpose of
filing the suit and getting an interlocutory order and contradicted the allegation at paragraph 6 of the plaint.
The further case of the appellants is that the respondent no. 1 has averred that the celebrity was to perform her part of the contract by endorsement in
the manner mentioned in paragraph 2.1.1 only when the respondent no. 1 shared the promotional material prepared by the respondent no. 1 on the
social networking platforms of the celebrity, and gave her instructions by electronic mail as evinced from paragraphs 11 and 12 of the plaint, and the
documents annexed as Annexure “F†to the plaint, and admittedly there was no such instruction by the respondent no. 1 to the celebrity after July
3, 2018, which too was limited to the “post share schedule till†July 15, 2018. Therefore, when neither payment was received by August 7, 2018
by the celebrity, nor any instruction given for further promotion, the celebrity was free to think that the contract had been terminated or at least
repudiated by the respondent no.1. The celebrity explains the concerned re-tweet of September 13, 2018 as a voluntary act, not done pursuant to the
contract which she has alleged in her application for vacating the ad interim order became null and void after August 7, 2018. Moreover, the celebrity
has relied upon Section 42 of the Specific Relief Act, 1963, more particularly its proviso, read with Section 41(e) thereof, to show that no injunction
can be granted in such a case, because the plaintiff is in breach. The appellants have impeached the reliance by the learned court below on only AIR
1996 Calcutta 67 while ignoring binding judgments of the Hon'ble Supreme Court, to hold that the tests of balance of convenience and its
preponderance and whether damages would be adequate becomes immaterial in the case where enforcement of a negative covenant is involved, and
prima facie case is enough.
In answer to this case, the respondent no. 1 has pointed to the fact that the interpretation of clause 2.1.1 of the contract offered by the appellants is
not the only reasonable one on the face of the plain meaning of the words in the contract or in the circumstances of contracts of such nature. The
respondent no. 1 urges that the words “on various personal social media platforms of the Celebrity, including but not limited to, Facebook, Twitter
and Instagram†in clause 2.1.1 refer not to the place where the respondent no. 1 is to send the instructions or share the promotional materials with
the celebrity, but where the celebrity is to inter alia perform her function of endorsement. The respondent no. 1 submits that the peculiar nature of the
digital media where the endorsement is to be done, allows the respondent no. 1 to share its materials on its own account or page with the setting set to
public, and the moment that the celebrity likes it or re-tweets it, it becomes an endorsement, showing at the same time two things: that the celebrity
acted as if the contract was subsisting, and that she was waiving the breach of the condition relating to payment of the retainer fee after the due date.
The respondent no. 1 argued, alternatively, that this was a case where there was delayed payment but not default, and time was not of the essence
but payment was and payment at the times mentioned in clause 3.1 (i) and (ii) was not an essential term of the contract. The respondent no. 1 also
tried to submit, that payment required an invoice to be raised by the celebrity and in case of the first payment on August 7, 2017 though there was no
invoice raised by the celebrity, the second tranche of payment in terms of Clause 3.1. (ii) was not payable by the respondent no. 1 until the celebrity
raised her invoice which was done on September 15, 2017 only whereafter the payment was done on September 22, 2017. In case of the second year,
no invoice was raised by the celebrity so no payment was made. However, the respondent no. 1 could not explain the reason why it therefore issued a
cheque dated September 11, 2018 without any invoice, for the whole amount payable for the second year, not the fifty percent payable on August 7,
2018 or August 6, 2018 but the entire amount, with the applicable GST, but posted it on September 14, 2018 just one day before filing the suit. The
respondent no. 1 has, however, pointed out that though the celebrity appellant by a letter dated September 25, 2018 has returned the cheque to the
office of the respondent no. 1, admittedly the celebrity had received the cheque on September 17, 2018 and had not returned it immediately.
In reply the appellants have submitted that the respondent no. 1 has tried to improve the case made out in the plaint by its affidavit-in-reply to the
application for vacating the interim order, treated as a written objection and where the suit was itself barred by statute, as aforesaid, on the face of the
allegations contained in and documents annexed to the plaint, no such injunction could be passed, either in the ex parte ad interim form, or by making it
absolute till the disposal of the appeal.
Both the parties have placed reliance, inter alia, on paragraphs 6, 8, 10, 11 and 12 of the plaint, in support of their respective contentions and relied
upon the documents annexed to the plaint. Paragraph 8 of the plaint reads as follows:
“…The retainer fees have been duly paid to the defendant no. 1 in terms of the contract. For the first year period an invoice was raised by the
defendant No.1 and accordingly payment was made by way of cheques drawn on UCO Bank, 2 India Exchange place, Kolkata 700001, within the
jurisdiction of this Learned Court in the first year. For the second year 92018-19) period even though no invoice was submitted by the defendant no. 1,
the plaintiff made payment by way of a cheque drawn on State Bank of India, 24, Park Street, Magma House Kolkata 700016 within the jurisdiction
of this Learned Court. Copy of the invoice along with the copies of the cheques issued by the plaintiff in favour of the defendant no. 1 are annexed
with the plaint and marked with the letter “Câ€â€¦â€
At the time of hearing, however, based on the above facts as admitted on the face of the records the learned Senior Counsel appearing for the
first respondent conceded that there was a breach so far as the time of payment was concerned but he contended that this was not essential term of
the contract.
Learned arguments of law have flowed back and forth from the learned Senior Counsel engaged in the matter, ably assisted by their learned
juniors. This court has heard arguments based on Fry on Specific Contract, 6th edition, travelled to the Court of Appeals in the United Kingdom and
also to the Chancery and considered the learned treatise of Mullah on the law of contracts. The parties relied upon several judgments most of which
pertained to the maintainability of the suit, the interpretation of Section 27 of the Indian Contracts Act, 1872, the extent of enforceability of a negative
covenant, where it could not be enforced, the specific performance of contracts of service, and such weighty matters which properly speaking out to
be decided only when the suit is finally heard.
Among these judgments, were Burn & Co. Ltdâ€"vâ€"Thakur Sahib Sree Lokhdirji of Morvi Estate reported in AIR 1925 PC 188, where also a
question arose about whether time was of the essence of the contract. There, their Lordships were pleased to opine that they would advise His
Majesty to dismiss the appeal. The ground was, that though the Division Bench in appeal from the learned single Judge had held that “but for the
conduct of the defendants I should have thought that with regard to the payment of the second instalment, time was of the essence of the contractâ€.
The conduct referred to was despite there being a non- performance of the condition for payment of the second installment within time, the
defendants delivered the wagons in question. It was in respect of sale of goods, and there was a positive act clearly in terms of the contract, which
could be shown to constitute a waiver by the defendants. In fact, the suit was decreed on such findings. In the present case relating to a contract of
personal service, there is no such conduct which can be shown as waiver, without evidence being taken and the matter being decided finally. It
therefore, will not apply to the present case which relates to the interlocutory stage. Another judgment cited by the learned Senior Counsel for the
respondent no. 1 was Gomathinayagam Pillai and Othersâ€"vâ€"Palaniswami Nadar reported in AIR 1967 SC 868. This judgment too, would not
apply since it was given in the backdrop of a final decision in respect of a contract for sale of immovable property, where, the question of the plaintiff
being disentitled to specific performance on the ground of delayed performance was finally abandoned before the Hon'ble Supreme Court. Therefore,
with respect, I do not think it applies to the present case, either.
Another judgment cited before this Hon’ble Court was American Pipe Companyâ€"vâ€"State of Uttar Pradesh reported in AIR 1983 Cal
Here too, the suit was finally adjudicated and one of the issues which arose in this contract for sale of goods was whether time was of the
essence of the contract and whether the exercise of option was under the contract. In this case, on evidence, time was held to be not of the essence
of the contract. I do not understand how this can at all be applicable to the present case, where at the interlocutory stage, it is clear and admitted that
the respondent no. 1 did not make payment within the time stipulated in the contract of service and the appellant who was the defendant no. 1, never
got the money before the suit was filed. This case clearly does not apply.
The judgment in the case of Board of Acting Governor of the La Martirere and Othersâ€"vâ€"National Engineering Industries Ltd. and Others
reported in (2005) 2 CHN 207, though in the context of rejection of an injunction order at the interlocutory stage, arose out of a registered deed of
lease and covenants contained in it. It is on the general principle of enforcement of a negative covenant under Section 42 of the Specific Relief Act,
1963. The coordinate bench was not called upon to decide the effect of the proviso to Section 42 of the Act of 1963, and nor did it relate to a contract
of personal service. It is not an authority for the question which arises in the present case, relating to whether or not the interlocutory orders seeking to
enforce a negative covenant in the peculiar facts of this case, ought to be continued or set aside. This too therefore, does not apply.
Therefore, with great respect to the forensic skills of the learned counsel, this court feels that whether the plaintiff/respondent no. 1 will ultimately
succeed in the suit ought not to be decided at this stage when the appeal at best survives as an appeal from an order of temporary injunction. If this
court decides to record findings on the questions of whether the suit is maintainable by reason of the proviso to Section 42 of the Specific Relief Act,
1963, then nothing will remain in the suit. Even the questions of whether time was of the essence of the contract and whether payment within the time
stipulated in Clause 3.1 and its sub-clauses was an essential term of the contract, and whether the explanation offered by the respondent no. 1 for its
delayed payment will have to be considered for the limited purpose of defending or impeaching the interlocutory order. It will naturally not bind the
learned court below or influence it while deciding the suit itself. Therefore, this court declines to decide the other questions raised before it, including
whether a contract of personal service is enforceable specifically, whether a negative covenant can be enforced in a suit, in restraint of trade or
business, even if the restraint is partial, whether the agreement could be held to be subsisting as on September 13, 2018, or stood repudiated and/or
terminated, or anything which, properly speaking has to be decided while finally adjudicating the suit.
In fact, a judgment cited at the Bar, being the case of Percept D’Mark (India) (P) Ltd.â€"vâ€"Zaheer Khan and Another, reported in (2006)
4 SCC 227, where too the appeal arose from a division bench of the High Court of Judicature at Bombay reversing the decision of a learned single
Judge granting an interlocutory order of injunction in a proceeding under Section 9 of the Arbitration and Conciliation Act, 1996, the Hon'ble Supreme
Court was pleased to observe at paragraph 44 of the report that such an exercise as to interpretation whether the agreement was in restraint of trade
or not was not to be undertaken in the present interlocutory proceeding.
As is clear, both the appellants and the respondent no. 1 spent the bulk of their energy trying to impeach or defend the maintainability of the suit
for enforcement of the negative covenant in the facts of the case and the law applicable as they appeared at this stage, until on query by the court as
to how the interlocutory order initially challenged as an ex parte ad interim order, and thereafter as a temporary injunction, could be defended or
impeached they were prevailed upon to cite the authorities on this subject.
This court would rather travel to the first principles in India relating to grant of temporary injunctions and the law laid down in this behalf, in the
specific context of enforcing negative covenants by interim reliefs and not as a final adjudication. For that, we shall examine first, the provisions of the
Specific Relief Act, 1963, governing the grant of temporary injunctions.
“Section 37 - Temporary and perpetual injunctions: (1) Temporary injunctions are such as are to continue until a specific time, or until the further
order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.â€
“Section 42 - Injunction to perform negative agreement: where a contract comprises an affirmative agreement to do a certain act, coupled with a
negative agreement, express or implied, not to do a 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. Provided that the plaintiff has not failed to
perform the contract so far as it is binding on him.â€
It has not been disputed at the Bar that the provisions which relate to the grant of temporary injunction are regulated by Section 94 and the
provisions of Order 39 of the Code of Civil Procedure. The jurisdiction of this court as a court of appeal to interfere with such an interim order which
is an equitable relief, has also been well settled as appears from the fact that both the adversarial sides relied upon the same binding judgment of the
Hon'ble Supreme Court which has laid down the law in this behalf.
Both the parties have relied on the judgment in the case of Gujarat Bottling Co. Ltd and Othersâ€"vâ€"Coca Cola Co. and Others, reported in
(1995) 5 SCC 545. So far as the principles governing the grant of interim orders and the scope of this court’s interference with it are concerned,
the Hon'ble Supreme Court laid down this law: -
“Paragraph 43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of
the court. While exercising the discretion the court applies the following tests â€" (i) whether the plaintiff has a prima facie case; (ii) whether the
balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory
injunction is disallowed. 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 not be adequately compensated. The court must weigh one need against another and determine
where the “balance of convenience†lies. [See: Wander Ltd. v. Antox India (P) Ltd. [1990 Supp SCC 727] , (SCC at pp. 731-32.] In order to
protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the
defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial.â€
“Paragraph 47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order,
granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or
temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct
of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly
equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible
for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was
seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction
under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or
temporary injunction order already granted in the pending suit or proceedings.â€
Even though the original ex parte ad interim order has now merged with the order dated October 3, 2018 by which the temporary injunction was
passed, since the appeals from the said order and its extension are being heard together with the appeals from the order of temporary injunction,
nothing prevents this court from examining whether the tests laid down by the Hon'ble Supreme Court in the case of Gujarat Bottling Co. Ltd (supra)
were followed, at any of the stages as aforesaid. On the face of the documents annexed to the plaint, the conduct of the respondent no. 1 was not
blameless when it approached the court. It sought an equitable relief which would have the effect of at least partially preventing the celebrity from
earning a livelihood â€" from endorsements of products â€" on the basis of documents which clearly showed that in order to allege that it had
performed its part of the contract, it had tendered payment of consideration for the second year of the contract just one day before it filed the suit, and
obtained the interim order. Prima facie, therefore, its conduct shows that the contract was not performed within the time stipulated in it, and worse, the
affected appellant/defendant no. 1/celebrity had not even got the money when the suit was filed. Therefore, prima facie, the motive for such payment
was not to perform the contract or comply with its contractual obligations, but only to give the impression that the contract was subsisting.
The respondent no. 1 did not wait until the celebrity appellant, the defendant no.1 before the learned court below, had received the said cheque by
mail, before presenting the plaint in the suit and seeking and obtaining an ex parte ad interim order without notice. There is no explanation for such
delayed tender which the celebrity appellant did not even receive before the suit was filed. Therefore, a court considering grant of an equitable relief
ought not to have, on the face of such documents, passed such an order, particularly when it never even considered the preponderance of balance of
convenience. If the order itself was bad, then its extensions without independent reasons, are also bad. It is true that the weighty questions about the
validity of the agreement, its subsistence, whether it is in restraint of trade, the interpretation of the contract are all of a nature which have to be
decided on evidence and hence there is a prima facie case to go to trial. However, these are not the only factors which the learned court below ought
to have considered in view of the binding judgment of the Hon'ble Supreme Court. By relying on a decision of this court, even a Bench decision, in
preference to the law laid down by the Hon'ble Supreme Court which was cited before it, the learned court below consciously ignored the question of
balance of convenience and held it to be immaterial. The learned court below, by doing so, not only erred in law but did what even this court could not
do â€" it acted contrary to judicial discipline and the doctrine of stare decisis and precedents and made mincemeat out of the hierarchy of courts and
Article 141 of the Constitution of India. Therefore, even the final order on the application for temporary injunction cannot be sustained since it did not
consider all the questions which the Hon'ble Supreme Court in the case of Gujarat Bottling Co. Ltd (supra) held must be considered before granting
such an interlocutory relief. Such order must, therefore, be set aside.
To this Court, however, the greatest flaw in the case for the interim order appears to be that a plaintiff claiming an equitable relief, has approached
the Civil Court without acting equitably. It did not disclose before the court the material fact that even on September 15, 2018, the date of institution of
the suit, the defendant no. 1/appellant/celebrity had not received the amount that the respondent no. 1 had been required to pay to her in two tranches
â€" fifty percent on August 6 or at the latest, August 7, 2018 and fifty percent on August 22, 2018. Instead it deliberately suggested that which was
false, being that allegedly the retainer fees were duly paid to the celebrity in terms of the contract. The payment was clearly made merely to create an
illusion of due payment (as in Paragraph 8 of the plaint aforesaid) for getting the interim order. These are examples of clever drafting which are
deliberately made to create an illusion of that which the litigant knows clearly is not true. This should not be encouraged by a court of equity because
these illusions are no better than falsehoods, disguised as the truth. The bona fides of the first respondent, at least prima facie, are wholly demolished
by these pleadings. Since temporary injunction is also an equitable relief within the discretion of this court and in a case were such sharp practice has
not been explained properly, this court is not inclined to grant any order of temporary injunction in favour of the first respondent.
This court however, would not like to send the matter back on remand for the purpose of deciding the question of whether or not to grant
temporary injunction, now that it has already found that the conduct of the respondent no. 1 was not blameless and it made the payment of the said
amount by the cheque dated September 11, 2018, sent by it only on September 14, 2018, and when it filed the suit even before the defendant
no.1/appellant celebrity had received it, without disclosing it and who has, thereafter, returned it to the respondent no. 1. Rather, the court takes up the
questions of balance of convenience and inconvenience. No case has been made out that the services of the celebrity appellant are so unique or she is
so unique that deprivation of endorsement by her, even if it is at the instance and to the benefit of the rival appellant, would mean an end of the
business of the respondent no. 1. The respondent no. 1 enjoys an enviable reputation as a manufacturer of TMT bars â€" which its rival appellant also
produces â€" and is endorsed by the likes of Virat Kohli, the captain of the BCCI Team India in cricket. The documents annexed to the plaint, which
were prepared by the respondent no.1, themselves show this. On the other hand, the celebrity appellant, while a thespian of some note in regional
films, depends upon her income from her appearances and endorsements for her livelihood.
If she is restrained from making any endorsement of the products of the rival appellant, when the respondent no. 1 admittedly has not issued any
instruction to the celebrity beyond July 15, 2018 for any performance which she is to record or any material which she is to promote, especially during
the festive season in West Bengal which commences from October 14, 2018, she will be without a substantial portion of her livelihood. Even assuming
that the contract is subsisting â€" without deciding this question â€" the injury which the respondent no. 1 will suffer by her endorsing the products of
the rival appellant, can be cured and compensated in money value. This is because it is not the case of the plaintiff in the plaint that it is only the
endorsement by the celebrity appellant which has resulted in popularity of the product of the respondent no. 1, its reputation and the increase in its
sales and without her endorsement or with her endorsing the rival’s product, the business of the respondent no. 1 would come to a stand-still. As
such the balance of convenience and inconvenience is clearly against grant of a temporary injunction as prayed for by the respondent no. 1. The
appellant rival and the appellant celebrity shall however, keep a separate account of the money paid to the appellant celebrity for her promoting or
endorsing the products of the appellant rival, which shall be paid to the respondent no. 1 as compensation in addition to the reliefs prayed for in the suit,
in the event that the suit succeeds. Naturally, this court desires that the suit is disposed of as expeditiously as possible, and subject to the convenience
of the learned court below, but preferably before August 6, 2019.
The impugned orders under appeal, at the instance of the celebrity appellant and the rival appellant, in all the cases as above, are set aside with the
above directions. The applications are disposed of accordingly.
So far as the appeal preferred by the respondent no.1 is concerned, against that part of the order dated October 3, 2018 which makes the
interlocutory order of injunction absolute till the disposal of AST No.62 of 2018, this court agrees with Mr. Chatterjee that when an application for
temporary injunction is being disposed of, it can either be allowed, so that the interim order granted continues till disposal of the suit or for a certain
period, or it may be rejected, but making the injunction “absolute†till the disposal of the appeal is a material irregularity. Though this court
appreciates the predicament of the learned court below, and its desire not to overreach the process of the appellate court, the learned court below
ought to have appreciated that the desire of this court was that the learned court below adjudicated and disposed of the application for temporary
injunction even during the pendency of AST No.62 of 2018 for which reason the hearing of the said appeal had been adjourned.
Be that as it may, now that this court has set aside the impugned orders dated September 15, 2018, its extension and the order dated October 3,
2018 in their entirety and passed other directions on the application for temporary injunction disposing of it by reversing the said orders, as above,
nothing remains of the appeal preferred by the plaintiff, and therefore, without approving of the said part of the order dated October 3, 2018 but
strongly deprecating it, this court dismisses FMAT No.1058 of 2018 and the connected application.
The parties shall bear their own costs.
Photocopy of this judgment and order, duly countersigned by the Assistant Court Officer shall be retained with the records of all the appeals
except A.S.T. 62 of 2018.
(Protik Prakash Banerjee, J.)
DIPANKAR DATTA, J.
I agree. Later:
After pronouncement of the judgement and order, learned advocate on behalf of the plaintiff/respondent, prays for stay of operation of the said
judgment and order.
Such prayer is considered and refused.