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TMI Blog1969 (10) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... r alia, runs as follows: That you have agreed and undertaken not to exhibit any other picture from any other Distributors, or supplier at your cinema during the said period of 4 years, commencing from 22nd September 1067 and that you shall make suitable arrangement with Distributors concerned for keeping in abeyance performance of pictures directly committed by you prior to this arrangement with us, if any, till and until you have duly performed this agreement with us. 5. The agreement is in the form of a letter addressed to the Defendant Sree Krishna Cinema (Private) Ltd. It is signed by a partner of the Plaintiff's firm. It is confirmed by one Kamala Kanta Chatterjee on behalf of the Defendant company. 6. According to the Plaintiff, the said Kamala Kanta Chatterjee was the manager of the Defendant company, who was in management and in charge of the cinema house and the exhibition of films thereat. It is the case of the Plaintiff that the said Kamala Kanta Chatterjee was duly authorised to sign this particular contract on behalf of the Defendant company. 7. In the affidavit filed by Gosto Behari Sadhukhan on behalf of the Defendant company it is not disputed that Ramala Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not disputed on the. affidavits before me. 11. On the basis of the above facts Mr. Mitter submits that the Plaintiff has established a prima facie case that there is a written contract between the parties which- contains an express negative covenant which should be enforced in the suit by an appropriate mandatory or perpetual injunction. The Plaintiff having established a prima facie case for the grant of a mandatory or perpetual injunction at the final hearing of the suit, its right should be protected and preserved by an interlocutory injunction in this application. 12. My attention was also drawn in this connection to Clause 14 of the written contract wherein it has been stated that all the other terms and conditions shall be as per Standard Film Renting Contract and rules and by-laws of the distributor's section of E.I.M.P.A., Calcutta. 13. Reference is 'next made to Clause II(j) of the Standard Film Contract which provides that the exhibitor covenants with the distributor not to use the said cinema or allow the use thereof during and on the dates fixed for the exhibition of each and every sound motion picture at each session (including matinees) of the said cine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t compensation in money will not afford adequate relief. 17. Mr. Das next submits that the balance of convenience is clearly in favour of the injunction not being granted. According to this contention, if the injunction is granted, the Defendant would have no option but to stop its business of exhibiting films at the said cinema house altogether. Thereby the Defendant may be compelled to commit breach of the terms of its lease with the landlord of the cinema house whereby the Defendant has agreed to pay a sum of ₹ 1,000 per month as rent. 18. On the merits of the case Mr. Das contended that since according to his client Kamala Kanta Chatterjee had no authority to execute the contract in the present case, the onus was on the Plaintiff to show that Mr. Chatterjee had such authority. Reference was made to Bow stead on Agency (13th ed., Article 87) for the proposition that no disclosed principal is bound by any act of his agent which is not within the scope of the agent's implied or apparent authority unless the principal, in fact, authorised the agent to do the particular act. My attention was drawn to illustrations 6, 7, 8 and 9 under Article 87. Reliance was also placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury-it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open between themselves. But, my Lords, if there be not a negative covenant but only an affirmative covenant, it appears to me that the case admits of a very different construction. 23. The above decisions came up for consideration before a Division Bench of this Court in Hind Palace (Private) Limited v. Mansata Film Distributors and Anr. Unreported decision in Appeal No. 142 of 1956. The subject-matter of the appeal was an application for injunction on the basis of a negative covenant under Section 57 of the Specific Relief Act, 1877. After referring to the above decisions Bose. J. (as he then was) obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an injunction being granted as a step in aid of the final relief to which the Plaintiff appears to have established a prima facie case. 27. Lastly, Mr. Das drew my attention to a letter dated March 8, 1968, to which I have referred to hereinbefore. According to Mr. Das, this letter is a fresh contract between the parties and since it stipulates that all the booking of pictures, signing of booking slips etc. will be done by the Plaintiff 'until further instructions from me', this contract is clearly terminable at the option of the Defendant. I am unable to accept this contention. This letter, on the face of it, is in continuation of a letter dated February 21, 1968. The letter of February 21, 1968, is a notice to the members of the Distributors' Section of the Association whereby Gosto Behari Sadhu khan declares that he would henceforward sign all the booking slips, enter into contracts etc. in connection with Sree Krishna Cinema Private Limited and nobody else would be entitled to deal with the booking of the pictures. It appears from para. 13 of the affidavit in reply of Pream Paul Pasher, affirmed on September 11, 1969, that after the letter dated February 21, 1968, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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