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TMI Blog2012 (5) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... uit O.S. No. 1533 of 2010 against Liberty Agencies, a partnership firm and its partners, in the Court of the City Civil Judge at Bangalore. The case of the Respondent No. 1 in the plaint was as follows: The Respondent No. 1 was engaged in the business of readymade garments and accessories under various reputed brand names and in the year 1995 had appointed Liberty Agencies as an agent to conduct its business of readymade garments and accessories with the reputed brand name 'Louis Philippe'. Thereafter, on 02.03.2005 Respondent No. 1 entered into a fresh agreement with Liberty Agencies under which Liberty Agencies agreed to sell the products of the Respondent No. 1 in the suit schedule property and also agreed to retain the possession of the suit schedule property until the expiry of the term of agreement and Liberty Agencies was not to sell any other articles or goods other than that supplied by the Respondent No. 1. Under the agreement dated 02.03.2005 (for short 'the agreement'), Liberty Agencies was entitled to a fixed commission of Rs. 7,50,000/- per month and by an addendum dated 01.07.2008 the fixed commission payable to Liberty Agencies was increased to Rs. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 1, A.C. Thirumalaraj and Best Sellers Retail (I) Pvt. Ltd., were opening a shop in the suit schedule property in the name of 'Jack Jones' and by an order dated 16.07.2010 the High Court restrained Best Sellers (I) Pvt. Ltd. from carrying on business in the suit schedule property until further orders of the High Court. Best Sellers Retail (I) Pvt. Ltd. then filed an application M.C. No. 12036 of 2010 for vacating the interim order dated 16.07.2010. By the impugned judgment, however, the High Court dismissed the Miscellaneous Appeal and rejected the appeal for vacating the interim order but directed the Respondent No. 1 to give an undertaking to the trial court that in case Respondent No. 1 fails in the suit, it will compensate the loss to A.C. Thirumalaraj and Best Sellers Retail (I) Pvt. Ltd. for not using the suit schedule property. Aggrieved, A.C. Thirumalaraj and Best Sellers (I) Pvt. Ltd. have filed these Civil Appeals. 6. Mr. Altaf Ahmed and Mr. A.K. Ganguly, learned senior counsel appearing for the two Appellants, submitted relying on the decision of this Court in Kishoresinh Ratansinh Jadeja v. Maruti Corporation and Ors. [MANU/SC/0522/2009 : (2009) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Oil Corporation Ltd. v. Amritsar Gas Service and Ors. [MANU/SC/0513/1991 : (1991) 1 SCC 533] in which this Court has held that a contract which is in its nature determinable cannot be enforced by the Court. They also cited the decision in Percept D'Mark (India) (P) Ltd. v. Zaheer Khan and Anr. MANU/SC/1412/2006 : (2006) 4 SCC 227 in which this Court has held relying on the judgment of the Chancery Division in Page One Records Ltd. v. Britton [(1968) 1 WLR 157 : (1967) 3 All ER 822], that where the totality of the obligations between the parties give rise to a fiduciary relationship injunction would not be granted because the performance of the duties imposed on the party in the fiduciary relationship could not be enforced at the instance of the other party. 9. Learned Counsel for the Appellants further submitted that the agreement between Liberty Agencies and the Respondent No. 1 was an agency agreement and it did not create any interest whatsoever in the suit schedule property and, therefore, the Respondent No. 1 was not entitled to any injunction restraining the owner of the suit schedule property from dealing with the property in any manner with a third party. They su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement shall not preclude it from granting an injunction to perform the negative agreement. He also cited the decision of the Chancery Division in Donnell v. Bennett reported in 22 Ch.D. 835 where it has been held that where there is a negative clause in the agreement, the Court has to enforce it without regard to the question of whether specific performance could be granted of the entire contract. He referred to clause B-5 of the agreement which provides that Liberty Agencies shall only sell the products supplied by the Respondent No. 1 company and shall not sell any other articles/products manufactured by any other person/Company/Firm in the premises during the period of the agreement unless approved by the Respondent No. 1 company. He submitted that this is not a case where the Appellants are entitled to any relief from this Court under Article 136 of the Constitution of India. 12. It is not necessary for us to deal with the contentions of Learned Counsel for the parties based on the provisions of Sections 14, 41 and 42 of the Specific Relief Act, 1963 because Section 37 of the said Act makes it clear that temporary injunctions are to be regulated by the Code of Civil Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Plaintiff, the Court will refuse temporary injunction if the injury suffered by the Plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar and Anr. v. Prahlad Singh and Ors. [MANU/SC/0715/1991 : (1992) 1 SCC 719] this Court held: Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages. 15. In the present case, the Respondent No. 1 itself had claimed in the plaint the alternative relief of damages to the tune of Rs. 20,12,44,398/- if the relief for specific performance was to be refused by the Court and break-up of the damages of Rs. 20,12,44,398/- claimed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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