SVF ENTERTAINMENT PVT. LTD. vs ANUPRIYO SENGUPTA

Ashis Kumar Chakraborty, J.

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). 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 convenienceâ€​ 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 â€

(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) 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.†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