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TMI Blog2015 (3) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... s followed would indicate that the respondent has made out not only a prima facie case, but the balance of convenience is also in their favour. Though the appellant has contended that the mining lease is sought to be cancelled if the rectification is not made, rectification if any can happen if the respondent is instructed by the appellant to carry out such rectification work. Therefore, in that circumstance, if the appellant is permitted to prevent the respondent from working and as an alternative, the appellant secure any other party to carry out the work, it will cause irreparable injury to the respondent. A perusal of the order passed by the Court below which is impugned herein would indicate that the Court below in fact has made a detailed consideration of all aspects of the matter relating to grant of interim measure pending consideration of the dispute by the Arbitrator and the decision relied upon by the Court below to arrive at such conclusion is also appropriate - Hence, the order impugned does not call for interference. Appeal dismissed. - M.F.A. No. 102793/2014 (A & C) - - - Dated:- 6-3-2015 - MR. JUSTICE A.S. BOPANNA AND MR. JUSTICE PRADEEP D. WAINGANKAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putes between the parties relating to the agreement entered into between them is the undisputed position since an Arbitrator has already entered upon reference. In such situation, keeping in view the terms agreed, whether an injunction in the manner as granted by the Court below is justified or whether the respondent herein can be compensated in terms of money by way of damages andtherefore is the injunction liable to be vacated, is the question. 5. Learned senior counsel for the appellant while assailing the order of the Court below, apart from contending that the decision in the case of Adhunik Steels Ltd., Vs. Orissa Manganese and Minerals (P) Ltd., [(2007) 7 SCC 125] has been wrongly relied upon has in support of his contention relied upon the following decisions: (i) The case of Gemini Communications Ltd., Vs. Chief General Manager [LAWS(MAD)-2012-12-112] wherein, it is held that while considering the question of interlocutory injunction in a matter involving a contract, necessarily it has to be seen as to whether the Court would be in a position to enforce specific performance of contract entered into between the parties. Sections 14 and 41 of Specific Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and Minerals Private Limited [(2007) 7 SCC 125] wherein, the Hon'ble Supreme Court keeping in view the agreement between the parties to secure arbitration of their disputes and in that light, while considering the issue relating to grant of injunction had taken into consideration that a notice had been issued by OMM Private Limited terminating the arrangement entered into between itself and Adhunik Steels. Thus in terms of Order XXXIX Rule 2 of CPC it was held that an interim injunction could be granted restraining the breach of a contract and to that extent, prima facie case was made against preventing it from carrying on its work in terms of the contract. Though it was noticed that it cannot be said that it will not be possible to assess the compensation that might be payable in case the claim is upheld by the Arbitrator, it was held that if OMM Private Limited is permitted to enter into agreements with others for the same purpose, it would be unjust. Though the cancellation of the agreement because it was hit by Rule 37 of the Mineral Concession Rules, 1960, was noticed, it was directed that they shall not enter into a contract for mining and lifting of minerals with any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injunction under Order XXXIX Rule 1 of the Civil Procedure Code would have to be kept in view so as to balance and preserve the bargain struck between the parties. In that light, what would ultimately be necessary to be considered in the background of the transaction entered into between the parties is as to whether the party seeking for interim measure has made out a prima facie case, whether the balance of convenience is in favour of such party and whether the non-grant of interim order would cause irreparable injury or even otherwise would it be fair to refuse injunction merely because compensation can be ultimately awarded. Hence, it would be appropriate to refer to the agreement entered into between the parties so as to determine the mutual rights arising thereunder and to ascertain the protection if any, that is required to be granted. 8. The appellant and the respondent have entered into an agreement dated 11.12.2012 for hiring of machinery and equipments on rental basis for excavation of ore. The appellant herein is described as the first party while the respondent is the second party to the agreement. The hiring of machinery and equipments for the work to be u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties to maintain status-quo in respect of the agreement dated 11.12.2012 was granted by the Court below on 14.05.2014. It is only thereafter the notice of termination was made on 19.05.2014 (Annexure-R4) and issued on 21.05.2014 (Annexure-R5). In that regard, it would be relevant to notice the communication dated04.04.2014 (Annexure-R18) which is a bill submitted by the respondent in respect of the work undertaken. The appellant replied to the same on 05.04.2014 (Annexure-R19) wherein all that has been stated is, the bills are slightly on the higher side and that they have asked the Auditors to scrutinize the same. They have in fact requested the respondent to manage the contractors till the matter is resolved. Therefore, the said correspondence would indicate that even as on the said date, the issue essentially between the parties requiring reconciliation was with regard to the bills that had been raised and the fact the appellant had asked the respondent to manage the contractors will show that they intended continuing the agreement and they had no grievance of the nature warranting termination of the agreement. 11. Despite that being the position, the appellant has ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hiring of machinery and equipment on rental basis, the work of mining will have to be performed by the respondent on instructions of the appellant and as such quantifying the amount of the work that may be done by some other persons if permitted, for the purpose of determining the compensation would be a difficult proposition, if the respondent is not permitted to do the work. 13. The contention on behalf of the appellant that it would be hit by Section 14 (c) and (d) also cannot be accepted. As noticed, the right to determine the agreement as contained in the agreement also has conditions attached to it and these are all aspects which would be decided in the arbitration though we have prima facie noticed it for the present purpose. Further, the question of performance of the contract involving a continuous duty and the difficulty in supervising the same by Court as contended by the learned senior counsel for the appellant also would not arise. That is because the injunction granted by way of interim measure would neither be in the nature of granting specific performance nor would the Court have to supervise the same until the completion of the lease period. All that is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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