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TMI Blog1995 (8) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... erages of any person till January 25, 1996, the expiry of the period of one year from the date of notice dated January 25, 1995. The interim injunction is thus confined to the use of the plants at Ahmedabad and Rajkot by any of these persons and it is in consonance with the negative stipulation contained in paragraph 14 of the agreement dated September 20, 1993. For the reasons aforementioned no infirmity in the impugned order of the High Court dated March 31, 1995, granting an interim injunction in terms of prayers (a)( ii) and (a)( iii) of the notice of motion as amended. - CIVIL APPEAL NOS. 6839-40 OF 1995 - - - Dated:- 4-8-1995 - S.C. AGRAWAL AND S. SAGHIR AHMAD, JJ. Shanti Bhushan, Gopal Subramaniam, Arun jetley, F.S. Nariman, T.R. Andhyarujina, Anil B. Divan, Harish N. Salve, K.K. Venugopal, A. Sitalwad, Hemant Sahai, Amit Kapur, Ashok Grover, P.S. Shroff, Sunil Dogra, Dinyar Madan, Ramji Srinivasan, Ms. Monica Sharma, S.S. Shroff, S.V. Thakore, B.V. Desai, Prasant Patnaik, C.L. Sareen, R.C. Lohli, Ms. Indu Malhotra and Ms. Aysha Khatri for the Appearing Parties. JUDGMENT S.C. Agrawal, J. Special leave granted. In the past, nations often w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trade marks which had been assigned to it by the various Parle entities. Gujarat Bottling Co. Ltd., appellant No. 1 (hereinafter referred to as GBC ), is a company incorporated under the Companies Act, 1956. Twenty-one per cent. of its shares are held by Ahmedabad Advertising and Marketing Consultants Ltd., respondent No. 7. The remaining 79 per cent. of shares were held by Mr. Pinakin K. Shah, respondent No. 2, and his family members and business associates and respondents Nos. 3 and 4 and their family members and associates in the ratio of 78 per cent. and 22 per cent. respectively. The shares of respondent No. 7 were also held by respondent No. 2 and his family members and associates and respondents Nos. 3 and 4 and their family members and associates in the same ratio of 78 per cent. and 22 per cent. respectively. GBC has bottling plants at Ahmedabad and Rajkot in Gujarat. GBC was having an arrangement with respondents Nos. 3 and 4 whereunder licence had been given to GBC to prepare, bottle, sell and distribute beverages under the trade marks Thums Up , Limca , Gold Spot , Maaza , Citra , Rim Zim and Bisleri club soda. In anticipation of the assignment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letters dated September 20, 1993, in respect of permission to use the trade mark Citra by GBC for Ahmedabad and Rajkot towns. Two other separate agreements were entered into by Coca Cola under letters dated September 20, 1993, for Ahmedabad and Rajkot towns for the use of the trade mark Bisleri club soda by GBC. All these four letter agreements are operative for two years and can be renewed by mutual consent. These agreements can be terminated by giving three months' notice by either side. These agreements were also to come into effect from the date indicated by Coca Cola in writing to GBC that all trade marks related to the said agreements have been assigned and transferred to Coca Cola. On April 30, 1994, Coca Cola entered into another agreement (hereinafter referred to as the 1994 agreement ) with GBC whereby Coca Cola granted to GBC a non-exclusive licence to use the trade marks mentioned in the schedule to the agreement, namely, Gold Spot , Limca , Thums Up , Maaza , Citra , etc., in relation to goods prepared by or for the licensee (GBC) from concentrates and/or syrup supplied by the licensor (Coca Cola) and packaged or dispensed in accordance with standards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of an outsider. On January 20, 1995, the shareholding of respondent No. 2 and his family members and associates as well as respondents Nos. 3 and 4 and their family members and associates in GBC and respondent No. 7 were transferred to appellants Nos. 2 to 5 which are concerns closely associated and connected with or affiliated to subsidiaries of Pepsi, respondent No. 6, and Pepsi Foods Limited, respondent No. 5, a subsidiary of Pepsi. As a result Pepsi acquired control over GBC. On January 25, 1995, GBC gave a notice to Coca Cola under clause 7 of the 1994 agreement whereby the said agreement was terminated. In the said notice it is also stated that without prejudice to the contentions of GBC that the 1993 agreement stands replaced by the 1994 agreement and/or that the termination period under the 1993 agreement in any event stands reduced to 90 days and that the said letter dated January 25, 1995, be treated, as a matter of abundant caution, as termination notice also under clause 21 of the 1993 agreement. On January 25, 1995, GBC also addressed a letter to Coca Cola informing them that shares representing 70.6 per cent. approximately of the paid up equity capital of GBC had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) as modified. Prayer ( a )( ii ) was for an injunction restraining respondent No. 1 (GBC) either directly or indirectly by itself or through its shareholders from concerning itself with the products, beverages of any other brand or trade mark of the plaintiffs (Coca Cola). Under prayer ( a )( iii ) as modified an injunction has been granted in the following terms : That in the event of the sale of shares, having taken place before the institution of the suit, deponent No. 1 and those to whom the shares have been sold and also subsequent transferees, their servants, agents, nominees, employees, subsidiary companies, controlled companies, affiliates or associate companies or any person acting for and on their behalf are restrained by an interim injunction from using the plants of respondent No. 1 at Ahmedabad and Rajkot for manufacturing, bottling or selling or dealing with or concerning themselves in any manner whatsoever with the beverages of any person till January 25, 1996. Feeling aggrieved by the said judgment of the Division Bench of the High Court, dated March 31, 1995, GBC (defendant No. 1) and the four transferees of the shares of GBC (defendants Nos. 7 to 10) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that goodwill [see General Electric Co. ( of U.S.A. ) v. General Electric Co. Ltd. [1972] 2 All ER 507 (HL)]. The Trade Marks Act, 1940, which was based on the Trade Marks Act, 1938, of U.K., has now been replaced by the Act. The Act has codified the law relating to trade and merchandise marks and is a comprehensive piece of legislation dealing with registration and protection of trade marks and criminal offences relating to trade marks and other markings in merchandise. Under the Act, registration of trade marks is not compulsory and as regards unregistered trade marks, some aspects are governed by the Act while others are still based on common law. In respect of a trade mark registered under the provisions of the Act certain statutory rights have been conferred on the registered proprietor which enable him to sue for the infringement of the trade mark irrespective of whether or not that mark is used. The Act also makes provisions whereunder a registered proprietor of a trade mark can permit any person to use the mark as a registered user and for that purpose provisions are made in sections 48 to 54 of the Act. In clause ( m ) of section 2, the expression permitted use in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant. Section 52 deals with the power of the Registrar to vary or cancel registration as registered user. Under section 53 a registered user does not have the right of assignment or transmission of the right to use the trade mark. Further provisions relating to registered user are contained in Chapter V (rules 82 to 93) of the Trade and Merchandise Marks Rules, 1959 (hereinafter referred to as the Rules ). Rule 83 provides the particulars which are required to be stated in the agreement between the registered proprietor and the proposed registered user with respect to the permitted use of the trade mark. The said particulars include the particulars specified in sub-clauses ( a ) to ( d ) of clause ( ii ) of sub-section (1) of section 49 and a provision about means for bringing the permitted use to an end when the relationship between the parties or the control by the registered proprietor over the permitted user ceases. The abovementioned provisions contained in the Act and the Rules indicate that the use of a registered trade mark by a registered user is subject to fulfilment of certain conditions and for the purpose of registration of a registered user it is necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the quality of the said beverages in all respects and to strictly adhere and conform to the technical specifications and standards as provided, using only such ingredients and of such quality as approved by Coca Cola. GBC also undertakes to exercise great care and caution to see that sub-standard, inferior or unwholesome beverages will not be manufactured/marketed by GBC or its agents directly or indirectly and if Coca Cola observes that the quality of the beverages is not maintained consistently, and/or there are persistent complaints from the market, dealers, outlets, consumers, etc., concerning the low standard or inferior quality of the beverages manufactured/marketed by GBC, Coca Cola retains the right to forthwith terminate the agreement. In clause ( b ) of paragraph 4, in order to assure compliance by GBC with the above requirements, it is permissible for the representatives and/or agents of Coca Cola to inspect at any time the premises of GBC, the finished beverages, the methods of preparation thereof and the bottling process, and full co-operation in this regard is to be extended by GBC. GBC has also agreed to submit samples of the finished beverages to Coca Cola every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness of bottling, distributing and selling the beverages. In the said clause, it is provided that the use of the said trade marks in any form or fashion or any words graphically or phonetically similar thereto or in imitation thereof on any product other than that of Coca Cola, would constitute an infringement of the trade marks or be likely to cause passing off. Under clause ( c ) of paragraph 8 GBC covenants and agrees that during the continuance of the agreement it will not manufacture, bottle, sell, deal in or otherwise be concerned with any beverages put out under any trade mark or name or style being the same or deceptively similar to the trade marks owned by Coca Cola or having similar or near similar phonetic rendering and any beverages put out under the said trade marks or otherwise which is an imitation of the essence, syrup or beverages or is likely to be a substitute thereof. In paragraph 9 it has been provided that the decision of Coca Cola on all matters concerning the said trade marks shall be final and conclusive and not subject to question by GBC and Coca Cola will protect and defend above trade marks at its sole cost and expenses and GBC will co-operate fully wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, periodic training of the sales, marketing and technical staff of GBC as well as the protection of its goodwill and GBC recognises that it is imperative that it must maintain with full vigour the continuity of the supply of Coca Cola's products/beverages for safeguarding the interest of the consuming public and thus maintaining the goodwill of Coca Cola. At the end of paragraph 14 there is the negative stipulation which has already been set out earlier. In paragraph 15 GBC has agreed that it will not sell the said beverages to the retailers in the territory on prices higher than the price agreed to or recommended by Coca Cola in writing. In paragraph 16 Coca Cola reserves its rights to grant at any time one or more additional licence near the area where GBC plant is located, if in the judgment of Coca Cola the situation warrants commissioning of further/additional licence. In paragraph 17 it is provided that nothing in the agreement shall create or be deemed to create any relationship of agency, partnership or joint venture between Coca Cola and GBC and further that GBC will assume full responsibility or liability for and will hold Coca Cola harmless from any loss, injury ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd warrants to Coca Cola that GBC acknowledges that the trade marks listed on annexure-II will be, as of the effective date of this agreement, the property of Coca Cola, that GBC has no right, title or interest to such trade marks, except pursuant to the licence granted by the agreement and that GBC has no existing claims or basis for claims against Parle (Exports) Limited or any of its affiliates which would affect the rights of Coca Cola under the agreement. A perusal of the various provisions contained in the 1993 agreement shows that by this agreement Coca Cola has agreed to grant a licence to GBC for the use of the trade marks in respect of the beverages mentioned in annexure-II to the agreement which were to be acquired shortly by Coca Cola. A number of provisions in the agreement relate to the use of the said trade marks by GBC so as to ensure that such user of the trade marks by GBC is strictly in accordance with the common law governing user of trade marks. The 1993 agreement was, therefore, an agreement for grant of licence under common law for user by GBC of the trade marks which were to be acquired by Coca Cola. The 1993 agreement also contains various provisions gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade marks are registered and shall sign and execute all such documents as are reasonably proper and necessary to secure such registration and for any change thereof in future. In paragraph 3 the licensee has undertaken to prepare and package or dispense the said goods strictly in accordance with standards, specifications, formulae, processes and instructions furnished or approved by the licensor from time to time to use the said trade marks in relation only to such goods so prepared and packaged or dispensed and also agreed to permit the licensor or its authorised representative at all reasonable times to inspect at the licensee's premises and elsewhere as the licensor may consider appropriate to implement these covenants to ensure quality control of the said goods and the methods of preparing, packaging or dispensing the said goods and the licensee will, if called upon by the licensor to do so, submit samples of the said goods, including packages and the markings thereon, for the inspection, analysis and approval of the licensor. Paragraph 4 records the understanding that the licensee shall not be the sole licensee/permitted user of the said trade marks. In paragraph 5, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement for registration of GBC as a registered user as contemplated by section 49 of the Act. In other words, the 1994 agreement is a statutory agreement which is required to be executed under section 49 of the Act read with rule 83 of the Rules for registration of GBC as a registered user of the trade marks held by Coca Cola. It is true that provisions similar to these contained in 1994 agreement are also contained in the 1993 agreement. But that is so because a licence to use a trade mark in common law can only be granted subject to certain limitations which are akin to the requirements for an agreement for registered user under the Act. But, at the same time, the 1993 agreement is much wider in its amplitude than the 1994 agreement in the sense that the 1993 agreement includes various terms regulating the exercise of the right of franchise that has been granted by Coca Cola to GBC in the matter of manufacturing, bottling and selling of the beverages which provisions are not found in the 1994 agreement. The 1994 agreement cannot be construed as wiping out the said terms and conditions regarding exercise of franchise granted by Coca Cola to GBC as contained in the 1993 agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idem between Coca Cola and GBC regarding reducing the termination period for the notice under paragraph 21 of the 1993 agreement. The notice dated January 25,1995, that was given by GBC to Coca Cola does not lend support to the case of the appellants. In the said notice it is stated: Without prejudice to our contentions that the so called licence agreement dated September 20, 1993 (herein, the licence agreement ), stands replaced by the trade mark license agreement and/or that the termination period under the license agreement in any event stands reduced to 90 days please treat this letter, as a matter of abundant caution, as termination notice also under clause 21 of the licence agreement. In the said notice, it is not stated that the parties had mutually agreed to reduce the termination period from one year to 90 days by the 1994 agreement. What is stated in the notice is the contention of GBC that the 1993 agreement is replaced by the 1994 agreement and that in any event the termination period had been reduced to 90 days. If it was mutually agreed by Coca Cola and GBC that the termination period for notice under paragraph 21 of the 1993 agreement is being reduced from o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied to covenants whereby an employee undertakes not to compete with his employer after leaving the employer's service and covenants by which a trader who has sold his business agrees not to compete thereafter with the purchaser of the business. The doctrine is, however, not confined in its application to these two categories but covenants falling in these two categories are always subjected to the test of reasonableness. Since the doctrine of restraint of trade is based on public policy its application has been influenced by changing views of what is desirable in the public interest. The decisions on public policy are subject to change and development with the change and development of trade and the means of communication and the evolution of economic thought. The general principle once applicable to agreements in restraint of trade has consequently been considerably modified by later decisions in England. In the earliest times all contracts in restraint of trade, whether general or partial, were void. The severity of this principle was gradually relaxed, and it became the rule that a partial restraint might be good if reasonable, although a general restraint was of necessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness of any kind, is to that extent void. Exception 1. One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business,, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein : Provided that such limits appear to the court reasonable, regard being had to the nature of the business. The said provision was lifted from Hon. David D. Field's Draft Code for New York which was based upon the old English doctrine of restraint of trade, as prevailing in ancient times. The said provision was, however, never applied in New York. The adoption of this provision has been severely criticised by Sir Frederick Pollock who has observed that the law of India is tied down by the language of the section to the principle, now exploded in England, of a hard and fast rule qualified by strictly limited exceptions. While construing the provisions of section 27 the High Courts in India have held that neither the test of reasonableness nor the principle of the restraint being partial or reasonable are applicable to a case governed by section 27 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to engage in other business activities. But no one has ever suggested that such contracts are in restraint of trade except in very unusual circumstances. In McEllistrim v. Ballymacelligott Co-operative Agricultural and Dairy Society Ltd. [1919] AC 548 (HL), Lord Finlay, after referring to the principle enumerated in Herbert Morris Ltd. v. Saxelby [1916] 1 AC 688 (HL), that public policy requires that every man shall be at liberty to work for himself and shall not be at liberty to deprive himself or the State of his labour, skill or talent by every contract that he enters into, had stated, this is equally applicable to the right to sell his goods. Doubting the correctness of this statement Lord Reid in Esso Petroleum Co. Ltd. v. Harper's Garage (Stourport) Ltd. [1968] AC 269, 296 (HL), has said: It would seem to mean that every contract by which a man (or a company) agrees to sell his whole output (or even half of it) for any future period to the other party to the contract is a contract in restraint of trade because it restricts his liberty to sell as he pleases, and is, therefore, unenforceable unless his agreement can be justified as being reasonable. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties and are, therefore, free from doctrine. The doctrine does not apply to ordinary commercial contracts for the regulation and promotion of trade during the existence of the contract, provided that any prevention of work outside the contract, viewed as a whole, is directed towards the absorption of the parties' services and not their sterilisation. Sole agencies are a normal and necessary incident of commerce and those who desire the benefits of a sole agency must deny themselves the opportunities of other agencies. In the same case, Lord Wilberforce has observed (at pages 322-33): It is not to be supposed, or encouraged, that a bare allegation that a contract limits a trader's freedom of action exposes a party suing on it to the burden of justification. There will always be certain general categories of contracts as to which it can be said, with some degree of certainty;, that the 'doctrine' does or does not apply to them. Positively, there are likely to be certain sensitive areas as. to which the law will require in every case the test of reasonableness to be passed : such an area has long been and still is that of contracts between employer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... templated in paragraph 21,'' in paragraph 14. Except in cases where the contract is wholly one sided, normally the doctrine of restraint of trade is not attracted in cases where the restriction is to operate during the period the contract is subsisting and it applies in respect of a restriction which operates after the termination of the contract. It has been so held by this court in Niranjan Shankar Golikari's case [1967] 2 SCR 378, 389 ; AIR 1967 SC 1098, 1104, wherein it has been said : The, result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract than those in cases where it is to operate during the period of the contract. Negative covenants operative during the period of the contract of employment when the employee is bound to serve his employer exclusively are generally not regarded as restraint of trade and therefore do not fall under section 27 of the Contract Act. A negative covenant that the employee would not engage himself in a trade or business or would not get himself employed by any other master for whom he woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, being in restraint of trade, is void under section 27 of the Contract Act. Shri Shanti Bhushan has urged that even if the negative stipulation contained in paragraph 14 of the 1993 agreement is found to be valid it is confined in its application to the preceding part of paragraph 14 which reads as under : The bottler recognises that it is imperative that the bottler must maintain with full vigour the continuity of the supply of the company's products/beverages for safeguarding the interest of the consuming public and thus maintaining the goodwill of the company. Laying emphasis on the words as such in the negative stipulation, Shri Shanti Bhushan has contended that the negative stipulation must be read as relatable to this part of paragraph 14 which means that the said stipulation can be invoked only if GBC is not able to maintain the continued supply of the products and beverages to Coca Cola. According to Shri Shanti Bhushan, such an eventuality has not arisen in view of the fact that Coca Cola has refused to supply GBC with essence/syrup and/or other materials which are required for preparing the products and beverages. The submission of Shri Shanti Bhushan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to GBC while the 1993 agreement subsists. The relevant part of paragraph 19 is as under: 19. Upon the happening of any one or more of the following events in addition to all other rights and remedies, the company shall have the right to cancel and terminate this agreement forthwith by written notice to the bottler ... ( b ) Should the bottler be other than a natural person, no change shall be made in its structure nor shall any transfer be made of any of its stock, share or interest or other indicia of ownership which would result in an effective transfer of control without the prior express written consent of the company. The company reserves the right to terminate this agreement at will for failure to notify it of such change or transfer . . . Upon the happening of any one or more of the foregoing events, the company shall also have the right to discontinue supplying the bottler with essence/syrup and/or other materials for such length of time as the company may in its sole judgment deem necessary without thereby cancelling or prejudicing the company's right to cancel or terminate the agreement for the said cause or for any one or more of other cause or causes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event of the suit filed by Coca Cola being dismissed. Shri Shanti Bhushan has also submitted that on the other hand, Coca Cola would not suffer any loss because it has already made alternative arrangements for supply of its products in areas covered by both the agreements between GBC and Coca Cola by arranging supply of their products from other licensees in the neighbouring areas. Shri Shanti Bhushan has placed reliance on the decision of the Gujarat High Court in Lalbhai Dalpatbhai and Co. v. Chittaranjan Chandulal Pandya, AIR 1966 Guj 189, and that of the Delhi High Court in Modern Food Industries India Ltd. v. Shri Krishna Bottlers (P.) Ltd., AIR 1984 Delhi 119, as well as on the observations of Lord Diplock in American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396 (HL). In the matter of grant of injunction, the practice in England is that where a contract is negative in nature, or contains an express negative stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is equitable and thus in principle a discretionary one and a defendant cannot resist an injunction simply on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 at pages 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. Shri Shanti Bhushan has contended that Coca Cola can be adequately compensated for the loss caused to it by award of damages in the event of its succeeding in the suit and that if the impugned injunction granted by the High Court is not reversed the loss suffered by GBC would be irreparable and incalculable inasmuch a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim injunction granted by the High Court, the two plants of GBC cannot be used for manufacture of Pepsi products till January 25, 1996, and the effort of Pepsi to gain an advantage over Coca Cola by reducing the availability of products of Coca Cola and increasing the availability of Pepsi products in the areas covered by the 1993 agreements has been frustrated to a certain extent inasmuch as the increase in the availability of Pepsi products has been prevented. In the absence of such an order Pepsi would have been free to use the plants of GBC at Ahmedabad and. Rajkot for the manufacture of their products. This could have resulted in reduction of the share of Coca Cola in the beverages market and the resultant loss in goodwill and profits could not be adequately compensated by damages. In so far as loss that may be caused to GBC as a result of grant of interim injunction, we are of the view that the loss that may be sustained by GBC can be assessed and GBC can be compensated by award of damages which can be recovered from Coca Cola in view of the undertaking that Coca Cola is required to give under rule 148 of the Bombay High Court (Original Side) Rules, 1980. It has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Analysing the conduct of GBC in the light of the above principles, it will be seen that GBC, who was a party to the 1993 agreement, has not acted in conformity with the terms set out in the said agreement. It was itself, prima facie, responsible for the breach of the agreement, as would be evident from the facts set out earlier. Neither was the consent of Coca Cola obtained for transfer of shares of GBC nor was Coca Cola informed of the names of persons to whom the shares were proposed to be transferred. Coca Cola, therefore, had the right to terminate the agreement but it did not do so. On the contrary, GBC itself issued the notice for terminating the agreements by giving three months' notice. It is contended by Shri Nariman and, in our opinion, rightly, that GBC, having itself acted in violation of the terms of agreement and having breached the contract, cannot legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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