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1952 DIGILAW 88 (KER)

Sreedhara Shenoy v. Thanumalayan

1952-08-25

SUBRAMONIA.IYER, VITHAYATHIL

body1952
Judgment :- 1. The plaintiff is the appellant in this Civil Miscellaneous Appeal. He is the Managing Partner of the Lekshman Theatre, Ernakulam. The 1st defendant is the proprietor of the Trivandrum Cine Film Distributors. The 2nd defendant is his representative at Ernakulam. The 3rd defendant is the lessee of the Menaka Talkies, Ernakulam, and the 4th defendant is his local Manager. The plaintiff and the first defendant entered into an agreement on 23.4.1952 for exhibiting the picture "Atmasakhi" by name in the Lakshman theatre. Ext. C is the agreement. The picture belongs to one P. Subramoniam of Trivandrum. The first defendant is the distributing agent for that picture for Kerala. One of the terms of the agreement was that the picture should be released at the Lekshman Theatre on 1.1.1128 corresponding to 17.8.1952. It is alleged in the plaint that the plaintiff had entered into an agreement with another Film distributing concern for screening a picture, "Aan" by name, in the Lakshman Theatre from 1.8.1952, that for some unforseen reason the picture could be released only on 7.8.1952, that the plaintiff was getting a good collection from that picture, that it was necessary to continue the exhibition of that picture for about two weeks more from 1.1.1128 and that he, therefore, requested the first defendant to postpone the date of release of "Atmasakhi" some date after the 29th of August. The 1st defendant did not agree to this. Some correspondence passed between the plaintiff and the first defendant relating to the matter. The 1st defendant insisted on having the picture released on 1.1.1128 itself. He informed the plaintiff that the producer of the picture was particular that it should be released simultaneously in all centres in Kerala on 1.1.1128. The plaintiff's offer to release the picture at another theatre of his, namely the Padma, on 1.1.1128 itself was also not accepted by the 1st defendant. The plaintiff tried to pursuade the producer himself to agree to the postponement of the date of release of the picture. That attempt also failed. Finally, he informed the first defendant on 14.8.1952 that it was not possible for him to screen the picture at Lakshman Theatre on 1.1.1128. Ext. F or XXXVIII is the letter sent by the plaintiff to the 1st defendant. That attempt also failed. Finally, he informed the first defendant on 14.8.1952 that it was not possible for him to screen the picture at Lakshman Theatre on 1.1.1128. Ext. F or XXXVIII is the letter sent by the plaintiff to the 1st defendant. The first defendant treated this letter as a repudiation of the contract by the plaintiff and entered into an agreement with defendants 3 and 4 on 15.8.1952 for screening the picture in Menaka Theatre from 1.1.1128. On 16.8.1952 the first defendant sent a telegram to the plaintiff to the effect that the contract was cancelled. Ext. G is the telegram. He also sent a letter, Ext. H on the same date informing the plaintiff that the contract stood cancelled and that the deposit made by the plaintiff was forfeited as per the terms of the contract. On the 16th itself the plaintiff filed this suit. The prayer in the plaint is for a permanent injunction restraining defendants 1 and 2 from distributing the picture Atmasakhi to anyone other than the plaintiff for exhibition at Ernakulam and Cochin for two months from 1.1.11128, for compelling them to give the picture to the plaintiff for first exhibition and for restraining defendants 3 and 4 from exhibiting the picture in the Menaka Theatre for two months from 1.1.1128. The plaintiff also filed a petition for temporary injunction. The first defendant took notice of the injunction petition. The court granted interim injunction for a day and posted the petition for hearing to 18.8.1952. From the order granting the interim injunction the first defendant preferred and appeal in the High Court on 17.8.1952 as C.M.A. No. 171 of 1952 and moved for stay of the order of the court below. The plaintiff took notice of the petition and objected to the granting of the stay order. This court granted stay on condition that the first defendant would deposit a sum of Rs. 500/- on 18.8.1952. Accordingly, the picture was released in the Menaka Theatre on 17.8.1952 (1.1.1128). The sum of Rs. 500 was deposited by the first defendant as per the order of this court. The injunction was heard by the learned Additional District Judge on 18.8.1952 and orders were passed on 19.8.1952 dismissing the petition. This appeal was filed from that order on 20.8.1952. Accordingly, the picture was released in the Menaka Theatre on 17.8.1952 (1.1.1128). The sum of Rs. 500 was deposited by the first defendant as per the order of this court. The injunction was heard by the learned Additional District Judge on 18.8.1952 and orders were passed on 19.8.1952 dismissing the petition. This appeal was filed from that order on 20.8.1952. The plaintiff moved this court also for a temporary injunction till the disposal of the Civil Miscellaneous Appeal. The defendants took notice of the petition and objected to the granting of the temporary injunction. The petition was heard on 20.8.1952 itself and was dismissed by this Court. As desired by the appellant the Civil Miscellaneous Appeal was ordered to be posted on 21.8.1952. 2. The question for consideration in this Civil Miscellaneous Appeal is whether the court below exercised its discretion properly in refusing to grant the temporary injunction asked for by the plaintiff. The granting or refusing to grant a temporary injunction is primarily a matter for the discretion of the trial court, but the discretion has to be exercised in a judicial manner according to well recognised principles. What we have to see is whether the court below has exercised its discretion in this case according to those principles. 3. The reliefs claimed in the suit are specific performance of an affirmative agreement and also that of a negative agreement. The negative agreement is sought to be enforced by means of a permanent prohibitory injunction. So far as the prohibitory injunction is concerned, it is argued for the plaintiff that the case comes under S. 57 of the Specific Relief Act. That Section reads thus: "Where a contract comprises an affirmative agreement to do a certain act coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel special performance of the affirmative agreement shall not preclude it from granting the injunction to perform the negative agreement: Provided that the applicant has not failed to perform the contract so far as it is binding on him." As regards the relief of prohibitory injunction against defendants 3 and 4, it cannot be said that the suit is one for specific performance of a negative agreement coming within the scope of S. 57 of the Specific Relief Act. It is not the plaintiff's case that defendants 3 and 4 had entered into an agreement with him with regard to the screening of the picture Atmasakhi. It is true that it is alleged in the plaint that defendants 3 and 4 were aware of the agreement the first defendant had entered into with the plaintiff for the screening of the picture when they received it for exhibition in their theatre. But the transaction between the first defendant and defendants 3 and 4 was entered into on the 15th August 1952 before the date of the suit and the latter got possession of the film on that date. In the circumstances the prayer for injunction against defendants 3 and 4 restraining them from exhibiting the picture in their theatre cannot be one for specific performance of a negative agreement coming within the scope of S. 57 of the Specific Relief Act. Even if the section applies the plaintiff must show that he "has not failed to perform the contract so far as it is binding on him" That is the real question to be tried in the suit. Moreover, S. 57 of the Specific Relief Act applies only to permanent injunction that may be granted by way of specific performance of a negative agreement and not to temporary injunction. The section also presupposes the existence of an agreement. The dispute between the parties in this case is whether there is a subsisting agreement at all. 4. In the nature of this case the granting of a temporary injunction virtually amounts to decreeing the suit. Similarly refusing to grant a temporary injunction will have the effect of dismissing the suit. The permanent injunction sued for is only for a period of two months from 1.1.1128. The question for decision is under what circumstances a temporary injunction can be granted in a case of this nature. I am of opinion that a temporary injunction can be granted in a case of this kind only if the plaintiff, not only makes out a prima facie case, but also satisfies the court that irreparable injury will be caused to him if the temporary injunction is not granted. Reference may be made in this connection to the judgment of Mehair, J. in Rameswar Lath v. Calcutta W & S Association (40 C.W.N. 1201). Reference may be made in this connection to the judgment of Mehair, J. in Rameswar Lath v. Calcutta W & S Association (40 C.W.N. 1201). Relying on the decision of the court of Appeal in Dodd v. The Amalgamated Marine Workers' Union ((1924) 93 L.J. Ch. 65) the learned judge held that in a case in which the granting of a temporary injunction will have the practical effect of granting the sole relief claimed in the suit the temporary injunction should not be granted unless irreparable injury would be caused to the plaintiff. In Dodd v. The Amalgamated Marine Workers' Union Lord Sterndale, M.R. observed thus: "It may be right in certain cases to give all the reliefs claimed in the action upon interlocutory motion even though there has been no agreement between the parties to treat the motion as the trial of the action, but that is not the rule and it is not the usual practice of the court." Lord Justice Warrington concurred with this view and observed: "I am of the same opinion. For all substantial purposes the order made was judgment in the action and there was no consent to treat the motion as the trial The general rule of practice is not to grant all the reliefs claimed in the action on motion." Reference may also be made to a decision of Sadasiva Iyer, C.J. and Muthunayakam Pillai, J. in Kutiram Aliadamer Kunhu Lebba v. Kochupappu Lebba Mydeen Kunhu Lebba (Select Decisions, (Travancore) Vol. III, p. 287). Their Lordships observed thus in that case: "Temporary injunction granting the same reliefs as are asked for in the plaint ought to be very sparingly granted and only in exceptional circumstances." In North-Western Railway Administration v. N.W. Railway Union (14 Lahore 330) it was held that a temporary injunction should not be granted merely because the suit would otherwise become infructuous. 5. Learned counsel for the appellant relied on the following passage in Kerr on Injunctions (6th Edition, Page 422): "If parties for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say by way of injunction that the thing shall not be done. 5. Learned counsel for the appellant relied on the following passage in Kerr on Injunctions (6th Edition, Page 422): "If parties for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say by way of injunction that the thing shall not be done. In such a 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 injury, it is the specific performance by the Court of that negative bargain which the parties have made with their eyes open between themselves, unless the covenantee has, by his conduct or omissions, put himself in such an altered relation in the covenantor as to make it manifestly unjust for him to ask the Court to enforce the covenant by injunction, or the covenantee has suffered no damage by the breach of covenant and is offered an undertaking that will prevent any future damage by the continuing breach, and the granting of an injunction would inflict damage on the covenantor out of all proportion to the relief given to the covenantee." 6. Reference was also made to the following passage in Basu on the Principles and Practice of Injunctions in British India (1934 Edition, page 417): "In England and America all these agreements, where the stipulations are expressly negative in form, and where they belong to a class of which specific performance would be enforced if they are affirmative in form, an injunction to restrain their violation will be granted as a general rule, and as a matter of course. The inadequacy of the general remedy is the criterion; but the fact that agreements belong to a class which would be specifically enforced necessarily shows that the legal remedy is inadequate." The principles mentioned above are those which should be borne in mind by the court when considering the question whether a party is entitled to a permanent injunction in a suit in which he makes out that the defendant has committed breach of a negative agreement. These principles cannot apply to cases of temporary injunction asked for in aid of a permanent injunction. These principles cannot apply to cases of temporary injunction asked for in aid of a permanent injunction. So far as temporary injunction is concerned reference may be made to pages 15 to 26 of Kerr. At page 16 the learned author following the decision in Attorney General v. Mayor of Wigan (5) De G.M. & G. 52), observes thus: "The Court must, before disturbing any man's legal right, or stripping him of any of the rights with which the law has clothed him, be satisfied that the probability is in favour of his case ultimately failing in the final; issue of the suit." At page 17 the learned author says: "A man who seeks the aid of the Court by way of interlocutory injunction, must, as a rule, be able to satisfy the Court that its interference is necessary to protect him from that species of injury which Court calls irreparable, before the legal right can be established upon trial." At page 19 it is stated: "The jurisdiction of the Court to interfere by way of interlocutory injunction in support of a legal title being purely equitable, it is governed upon strict equitable principles." At page 24 the learned author further observes thus: "If the defendant disputed the legal title of the plaintiff or denied the fact of its violation, the Court would seldom, however clear the case might in its opinion be, grant the injunction without putting the plaintiff to establish his legal right. In doubtful cases where the question as to the legal right is one on which the court is not prepared to pass an opinion, or the legal right being admitted, the fact of its violation is denied, the course of the Court is either to grant the injunction pending the trial of the legal right, or to order the motion to stand over until the legal right has been tried. In determining which of these two alternatives it shall adopt, the Court is governed by the consideration as to the comparative mischief or inconvenience to the parties which may arise from granting or withholding the injunction." 7. In determining which of these two alternatives it shall adopt, the Court is governed by the consideration as to the comparative mischief or inconvenience to the parties which may arise from granting or withholding the injunction." 7. This is what Basu says at page 69 of this book: "It does not follow that a temporary injunction will be granted before hearing, in every case in which a perpetual injunction might fitly be granted at the hearing; for, to justify a temporary injunction not only must the case be such that an injunction is the appropriate relief, but there must be the further ingredient that, unless the defendant is at once restrained by an injunction, irreparable injury and inconvenience may result to the plaintiff before the suit can be decided upon the merits." The above passage is taken from Collete's Specific Relief Act. It is quoted by Mulla also in his Commentaries on the Code of Civil Procedure (11th Edition, pape 1134). At page 77 Basu says: "On an interlocutory motion for an injunction as to matter merely pecuniary, the plaintiff cannot succeed without satisfying the court not merely that there is a case to be tried but that there is some probability of the case not being dismissed at the hearing." The learned author also quotes the following observation of Cotton, L.J. in Preston v. Luck (27 Ch. D. 497) at page 505). "Of course, in order to entitle the plaintiff to an interlocutory injunction though the Court is not called upon to decide finally on the rights of the parties it is necessary that the court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a probability that the plaintiff is entitled to relief." 8. Learned counsel for the Civil Miscellaneous Appellant also referred to the following passage in Woodroffe on the Law Relating to Injunctions (5th Edition, page 86): "Upon an application for an interlocutory injunction, the court will not, however decide which of the parties is right in their statement of facts. Looking at all the facts of the case it will consider whether it is right that the applicant should suffer the alleged threatened injury whilst his rights are being investigated. Of course, if he has no rights cadit questio. Looking at all the facts of the case it will consider whether it is right that the applicant should suffer the alleged threatened injury whilst his rights are being investigated. Of course, if he has no rights cadit questio. But if his statement of facts is true and raises a fair and substantial question to be decided as to what the rights of parties are, then the court will issue the injunction, though, in doing so, it will not assume that he has the right which he claims, nor that the defendant is justified in saying that that right does not exist." But at page 87 the learned author has also extracted the observation in Attorney General v. Mayor of Wigan quoted by Kerr and which is reproduced above. The learned author also says that in granting or refusing to grant a temporary injunction "the court must be guided by a discretion according to the exigencies of each particular controversy." In exercising this discretion the courts take into consideration the following points, namely (1) whether the plaintiff has got a prima facie case; (2) whether irreparable injury would be caused to the plaintiff if the injunction is not granted; (3) what the balance of convenience is; and (4) whether the conduct of the plaintiff has been such as to disentitle him to the relief of injunction. (Vide The Mar Thoma Rubber Co. Ltd. v. Varghese Joseph (43 T.L.R. 65), Eipe Elias v. Kunchu (39 T.L.R. 163), Brajendranath v. Kashi (1946 Patna 177). 9. Bearing the above principles in mind we shall consider whether the court below exercised its discretion properly in refusing temporary injunction in this case. The first question for consideration is whether the plaintiff has got a prima facie case. In dealing with this question learned counsel on both sides went into the merits of the case as disclosed by the agrement, Ext.C., and the correspondence that passed between the parties. Elaborate arguments were addressed before us both on the facts of the case and on the various questions of law that arise for consideration in the case. Ordinarily it is not desirable that the court expresses any opinion on the merits of the case when disposing of an interlocutory application of this nature. Elaborate arguments were addressed before us both on the facts of the case and on the various questions of law that arise for consideration in the case. Ordinarily it is not desirable that the court expresses any opinion on the merits of the case when disposing of an interlocutory application of this nature. But since in the peculiar nature of this case the order on the injunction petition will have the effect of determining the fate of the suit itself I am constrained to go into the merits of the case to some extent for the purpose of seeing whether the plaintiff has got a prima facie case that will sustain an application for temporary injunction. In expressing an opinion upon this question it is necessary that we should guard ourselves against prejudging the case. Whatever observations I may make on this question should not influence the court below in any manner in the disposal of the suit. 10. The question whether the plaintiff has got a prima facie case depends upon three points, namely, (1) whether the undertaking of the plaintiff to screen the picture on 1.1.1128 is an essential part of the contract; (2) whether the letter, Ext. F, sent by the plaintiff to the first defendant on 14.8.1952 amounts to a repudiation of the contract by the plaintiff and (3) whether the first defendant was competent to cancel the contract on the basis of Ext. F. 11. With regard to the first point the presumption in law is that in contracts for the sale of land time is not an essential part of the contract whereas in the case of mercantile contracts and contracts the subject matter of which is such that its value is likely to fluctuate, time is of the essence of the contract. The present case comes within the last two categories of contracts. When the terms of the contract are themselves clear on the point whether time is of the essence of the contract it is not necessary to go into the question of presumption. The terms of the contract, Ext. C, prima facie show that the parties to the contract intended that time was of the essence of the contract. C1.1 of Ext. The terms of the contract, Ext. C, prima facie show that the parties to the contract intended that time was of the essence of the contract. C1.1 of Ext. C reads thus: "Subject to the terms and conditions hereof, the Exhibitors agree to exhibit the talkie film, described in the schedule hereto, form 1st day of Chingom 1128, subject to the said film remaining under the control of the Distributors. The film shall be used by the Exhibitors for exhibition at the Lakshman Talkies, Ernakulam The Exhibitors agree not to cancel or change the exhibition dates of pictures, once such dates have been fixed in advance without the consent of the Distributors In case screening dates are changed or cancelled without the Distributor's previous permission the Exhibitors shall be liable to pay damages and losses to the Distributors for cancelling the exhibition of the subjects confirmed for their theatres." Cl. 4 contains the following: "In default of performance or observance of any or all of the terms or conditions of this contract on the part of the Exhibitors, the Distributors shall be entitled to cancel this agreement and forfeit the deposit money without prejudice to the Distributors' rights to claim damages and losses from the Exhibitors for the non-fulfilment of the agreement." Cl. 8 provides thus: "The Exhibitors bind themselves to screen Atmasakhi [Malayalam] commencing from the date of this agreement and if the Exhibitors fail to fulfil this undertaking in spite of reminders from the Distributors, the Distributors will have the option of cancelling the agreement forthwith and shall hold the Exhibitors responsible for the losses." The words "from the date of this agreement" evidently mean "from the date mentioned in this agreement" Otherwise the sentence will have no meaning. Then, lastly in the schedule, entries of which are typewritten, it is provided thus: "The Exhibitor agrees to join us for the simultaneous release of the picture on and from the 1st Chingom 1128." These express provisions in Ext. C prima facie show that the parties intended the date of release of the picture as an essential part of the contract. The provision for the simultaneous release of the picture on the 1st of Chingom 1128 has its significance. The distributors were apparently very particular that the picture should be released on the same day in all the centres in Kerala. Exts. The provision for the simultaneous release of the picture on the 1st of Chingom 1128 has its significance. The distributors were apparently very particular that the picture should be released on the same day in all the centres in Kerala. Exts. M series, namely advertisements in papers, show that this was the idea of the distributors. The success of a picture depends on the reception it gets from the public. If the picture is not released simultaneously in the different centres there is the risk of bad reports about the picture in one particular place adversely affecting its reception in other centres. This seems to be the main reason why the Distributors insisted on the picture being released simultaneously on the 1st of Chingom 1128. The correspondence between the parties after the date of Ext. C also shows that they regarded the date of the release as an essential part of the contract. As soon as the first defendant got information from his local representative that there was the possibility of the plaintiff postponing the release of the picture he informed the plaintiff that he was particular that the picture should be released on 1.1.1128 itself. The fact that the plaintiff repeatedly requested the first defendant to agree to the postponement of the date of release of the picture also shows that the parties regarded the date of release of the picture as an essential part of the contract. The letters sent by the first defendant to the plaintiff show that the Producer of the picture was particular that it should be released simultaneously in all centres. The first defendant who entered into a contract with the Producer for the distribution of the picture was bound by the terms of his own contract. It was, therefore, not possible for him to accommodate the plaintiff without the consent of the Producer. He made his position clear to the plaintiff. The plaintiff appreciated the attitude taken by the first defendant and tried to persuade the Producer himself to agree to the postponement of the date of the release. He did not succeed in that attempt. It was after that that he finally sent the letter Ext. F informing the first defendant that it was not possible for him to screen the picture on 1.1.1128. He did not succeed in that attempt. It was after that that he finally sent the letter Ext. F informing the first defendant that it was not possible for him to screen the picture on 1.1.1128. In the circumstances, it cannot be said that the parties did not intend time to be an essential part of the contract. It is alleged by the plaintiff that notwithstanding the terms in Ext. C, according to the custom of the trade, the date of release of the picture is not of the essence of the contract and that the essential part is the period during which the picture should be exhibited. The defendants deny any such custom of the trade. If there is any such custom there is no meaning in stating in various clauses of the contract that the picture should be released on a particular date and in conferring on the Distributor the right to cancel the contract if the picture is not released on that date. There will also be no meaning in the provision in the schedule that the Exhibitor should join the distributors "for the simultaneous release of the picture on and from the 1st Chingam 1128." The plaintiff has produced Exts. J, K and L to show that in other instances the Distributors of films had agreed to the postponement of the date of release of pictures. This only shows that for postponement of the date of release of a picture by the Exhibitor the consent of the Distributor is necessary. Exts. J, K and L only support the defendant's case that the date of release of the picture is an essential part of the contract. 12. The question whether time is of the essence of the contract depends on the intention of the parties as provided in S. 55 of the Indian Contract Act. Exts. J, K and L only support the defendant's case that the date of release of the picture is an essential part of the contract. 12. The question whether time is of the essence of the contract depends on the intention of the parties as provided in S. 55 of the Indian Contract Act. As observed by Graham, J. in Jadunath Gupta v. Chandrabhushan Sur (36 C.W.N. 286) "time may be of the essence of a contract by reason of an express condition, or such condition may be inferred from the circumstances and intention of the parties." In Allibhoy Ibrahimji v. Daulatram Valabdas (50 I.C. 41) it was held that "the intention of the parties may be ascertained (1) from the express stipulation of the contract; (2) from the nature of the property and (3) from surrounding circumstances." In Harakh Singh v. Saheb Singh (6 Calcutta Law Journal 176) Mukerji, J. observed thus on the point: "Whether the time of performance fixed by an agreement is of the essence of the contract or not must depend upon the intention of the parties. The test is, did the parties regard it as such in the first conception of the agreement." The following observation of Blackburn, J. in Bettini v. Gye (18761 Q.B.D. 183) is quoted by Pollock in his book on Contracts (13th Edition, page 211). "Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfilment of such a thing a condition precedent, it will be one; or they may think that the performance of some matter, apparently of essential importance and prima facie a condition precedent, is not really vital, and may be compensated for in damages, and if they sufficiently express such an intention, it will not be a condition precedent." At page 413 the learned author says: "It is a familiar principle that in all cases where it is sought to enforce contracts consisting of reciprocal promises, and where the plaintiff himself is to do an act to entitle himself to the action, he must either show the act done, or if it be not done, at least that he has performed everything that was in his power to do. Accordingly, when by the terms of a contract one party is to do something at or before a specified time, and when he fails to do much thing within that time, he could not afterwards claim the performance of the contract if the stipulation as to time were construed according to its literal terms." Reference may also be made to the Law of Contract by Cheshire and Fifoot (2nd Edition, page 402) where the learned authors refer to the following observation of Lord Parker in Stickney v. Keeble (1915 A.C. 386 at page 415) about the maxim that in equity time is not of the essence of the contract: 'But this maxim never had any application to cases in which the stipulation as to time could not be disregarded without injustice to the parties, when, for example, the parties, for reasons best known to themselves, had stipulated that the time fixed should be essential, or where there was something in the nature of the property or the surrounding circumstances which would refer it inequitable to treat it as a non-essential term of the contract. It should be observed, too, that it was only for the purposes of granting specific performance that equity in this class of cases interfered with the remedy at law. A vendor who had by his conduct lost the right to specific performance had no equity to restrain proceedings at law based on the non-observance of the stipulation as to time." The learned authors proceed thus: "In short, time is of the essence of the contract even in equity if such is the real intention of the parties. Moreover an intention to this effect may be expressly stated or may be inferred from the nature of the contract or from its attendant circumstances." 13. Learned counsel for the Civil Miscellaneous Appellant relied on the ruling in Bettini v. Gye (1876) 1 Q.B.D. 183). In that case the plaintiff, a singer, agreed with the defendant, the Director of an Opera in London, to sing in concerts during a particular period. The plaintiff also agreed to be in London without fail at least six says before the commencement of his engagement for the purpose of rehearsals. The plaintiff was not in London six days before the commencement of the engagement, wherefor defendant refused to receive the plaintiff into his service. The plaintiff also agreed to be in London without fail at least six says before the commencement of his engagement for the purpose of rehearsals. The plaintiff was not in London six days before the commencement of the engagement, wherefor defendant refused to receive the plaintiff into his service. The question that arose for consideration was whether the stipulation as to rehearsals was a condition precedent to the defendant's liability or only an independent agreement, a breach of which would not justify a repudiation of the contract but would only be a cause of action for compensation in damages. Blackburn, J. laying down the proposition already referred to, held that the stipulation as to rehearsals was not a condition precedent as it did not go into the root of the matter. I do not think that this ruling applies to the facts of this case. The question for consideration, as observed by Blackburn, J. in the passage quoted above is whether the parties have expressed an intention to construe a particular matter as an essential part of the contract. 14. Another case relied on by learned counsel for the Civil Miscellaneous Appellant is Jamshed Khodram v. Burjorji Dhunjibhai (40 Bombay 289 P.C.). That was a case of contract for sale of land. It was held in that case that there was nothing in the language of the agreement or the subject-matter to displace the presumption that for the purpose of specific performance of a contract for sale of land time is not of the essence of the bargain. But in that case Their Lordships made the following observation: "The special jurisdiction in equity to disregard the letter of the contract in ascertaining what the parties to the contract are to be taken as having really and in substance intended as regards the time of its performance may be excluded by any plainly expressed stipulation." Raghbir Das v. Sundar Lal (1931 Lahore 205), another case relied on by the appellant, only followed the proposition of law laid down by the Privy Council in 40 Bombay 289. To the same effect are the decision in Kamu v. Gondaram (1947 Lah. 352) and Arun Prakash v. Tulsi Charan (1940 Calcutta 510) referred to by learned counsel for the appellant. To the same effect are the decision in Kamu v. Gondaram (1947 Lah. 352) and Arun Prakash v. Tulsi Charan (1940 Calcutta 510) referred to by learned counsel for the appellant. So far as this case is concerned there are express stipulations in the contract which go to show that the parties intended time to be of the essence of the contract. 15. If the parties intended time to be of the essence of the contract the case will come under S. 55 of the Contract Act. The section reads thus: "When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing, at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee if the intention of the parties was that time should be of the essence of the contract." S.39 provides thus: "When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified by words or conduct his acquiescence in its continuance." We have now to consider whether by sending the letter Ext. F the plaintiff has refused to perform his part of the contract. It is argued for the Civil Miscellaneous Appellant that the letter, Ext. F, did not amount to a final repudiation of the contract. For deciding this question it is necessary to understand the nature of the correspondence that led up to the letter, Ext. F. As stated above, the first defendant was from the very start insisting on the release of the picture on the 1st of Chingom. Ext. XI dated 26.7.1952 and Ext. XII dated 27.7.1952 make this clear. In the letter Ext. X, dated 91.7.1952 sent by the plaintiff to the first defendant it is stated thus: "As you know, the above picture stands confirmed for our screening for 1st Chingam 1128 to be screened at our Lakshman Talkies." On 7.8.1952 the first defendant sent the letter, Ext. XXIV, to the plaintiff in which it was stated that information was received by him to the effect that the plaintiff was planning to make some alteration in the screening date of the picture. XXIV, to the plaintiff in which it was stated that information was received by him to the effect that the plaintiff was planning to make some alteration in the screening date of the picture. The first defendant insisted on the picture being screened on the 1st itself, and he also stated that the Producer Mr. Subramaniam was particular that the picture should be screened simultaneously in all the theatres. On the same date, the plaintiff sent the letter Ext. XXV, to the first defendant in which it was stated that he had fixed Padma Talkies for the release of the picture on 1.1.1128. To this the first defendant sent Ext. XXII, reply in which he insisted on the picture being released at Lakshman Talkies itself on 1.1.1128. He also sent Ext. XXIII letter on the same date requesting the plaintiff to see to the release of the picture as per the terms of the agreement. To this the plaintiff sent the reply Ext. XXIX on 8.8.1952 in which it was stated that if the collections for the picture "Aan" were strong "Atmasakhi" could be released only after a few days more in continuation of the picture Aan, and requested the first defendant to accommodate him. In Ext. XXVI sent by the first defendant to the plaintiff on 8.8.1952 and in Ext. XXX, sent on 9.8.1952, the first defendant again insisted on the picture being screened at the Lekshman Talkies on 1.1.1128. In reply to Ext. XXIX the first defendant informed the plaintiff that it was not possible to accommodate him and insisted on the plaintiff abiding by the terms of the agreement. The first defendant also sent Ext. XXXIII letter on 11.8.1952 asking the plaintiff not to fail to release the picture at the Lakshman Talkies on 1.1.1128. On 12.8.1952 the first defendant brought to the notice on the plaintiff the advertisements published in the papers giving the date and names of the theatres for the screening of Atmasakhi. On the 12th itself the plaintiff sent the following letter (Ext. XXXV) to the first defendant: "Our General Manager has been deputed to have a personal discussion over the matter re: the possibility of accommodating your picture Atmasakhi for first Chingam with your proprietor and Producer Mr. On the 12th itself the plaintiff sent the following letter (Ext. XXXV) to the first defendant: "Our General Manager has been deputed to have a personal discussion over the matter re: the possibility of accommodating your picture Atmasakhi for first Chingam with your proprietor and Producer Mr. Subramaniam Pillai, and immediately after his return we will let you know the final conclusion arrived at." It is after this that the plaintiff sent Ext. F or XXXVIII, letter on 14.8.1952 in which it was stated thus: "The final conclusion arrived at during the hot discussion we had with the proprietor of Messrs. The Film Distributing company of this Town was not what we wanted to, because we had sincerely aimed high of releasing your picture for your required date. Now we can help you in this matter only by way of releasing your picture in strict continuation to Aan, that is to say, from 29th August or even earlier. We assure you that we will give full justice with regard to advertisement and the maximum run. We hope you will reconsider the matter as it deserves and supply the same accordingly." Taking this letter along with the previous correspondence between the parties relating to the date of screening the picture it should be taken to be the final reply given by the plaintiff on the matter. It is true that there was in the letter a request for re-consideration. But so far as the plaintiff was concerned he definitely stated that he could screen the picture only in continuation of the picture Aan. In the circumstances we think that the first defendant was justified in treating this letter as a final refusal by the plaintiff to release the picture at the Lakshman Talkies on 1.1.1128. 16. Since the first defendant was particular to have the picture released on 1.1.1128 itself, as soon as he got Ext. F letter he tried to find out an exhibitor for screening the picture on that date. Defendants 3 and 4 accepted his offer on 15.8.1952. Thereafter on 16.8.1952 the first defendant sent Ext. G telegram, cancelling the contract and Ext. XXXVI, letter confirming the telegram. It is argued for the appellant that the first defendant ought to have given the plaintiff a chance to reconsider the matter before he entered into an agreement with defendants 3 and 4. Thereafter on 16.8.1952 the first defendant sent Ext. G telegram, cancelling the contract and Ext. XXXVI, letter confirming the telegram. It is argued for the appellant that the first defendant ought to have given the plaintiff a chance to reconsider the matter before he entered into an agreement with defendants 3 and 4. But if the plaintiff was prepared to release the picture on 1.1.1128 (17.8.1952) be could have informed the first defendant accordingly on the 16th itself. In the suit filed by him he has not offered to release the picture at Lakshman Theatre on 1.1.1128. This is what is stated in paragraph 7 of the plaint: then paragraph 8 reads thus: It is clear from the plaint that there was no offer by the plaintiff to screen the picture at the Lekshman Talkies from 1.1.1128. The offer was either to screen it at the Padma Talkies on 1.1.1128 itself or at the Lakshman theatre on another date. If under the terms of the contract the plaintiff was bound to exhibit the picture at the Lakshman Theatre on 1.1.1128 the averments in the plaint do not disclose his readiness to perform his part of the contract. The plaint only affirms the refusal by the plaintiff to perform the contract in terms of the agreement. The first defendant has by Ext. G. telegram, accepted the repudiation of the contract by the plaintiff and has put an end to the contract. 17. It was next argued for the appellant that even if Ext. F amounted to a final refusal by the plaintiff to screen the picture at the Lakshman talkies on the 1st of Chingom it did not amount to a repudiation of the contract under S.39 of the Contract Act so as to give the first defendant the right to cancel the same. The argument is that Ext. F did not amount to a refusal to perform the contract in its entirety. According to the appellant the undertaking to release the picture on 1.1.1128 is only one of the terms of the contract and that the refusal to fulfill that agreement does not amount to a refusal to perform the contract in its entirety. Reliance is placed on a decision of the Calcutta High Court in Sooltan Chund v. Schiller (4 Calcutta 252). I do not think that that decision supports the position taken up by the appellant. Reliance is placed on a decision of the Calcutta High Court in Sooltan Chund v. Schiller (4 Calcutta 252). I do not think that that decision supports the position taken up by the appellant. That was a suit for damages for non-delivery of linseed upon a contract the terms of which as to payment were cash on delivery. Part delivery had been made by the defendants and a sum of Rs. 1000 had been paid by the plaintiffs. The plaintiffs then made a claim against the defendants for excess refraction and the defendants thereupon refused to deliver the remainder of the linseed unless the plaintiffs paid the full amount owing for the portion that had been delivered. The plaintiffs declined to accept these terms and the defendants then cancelled the contract. It was held that there was not such a refusal on the part of the plaintiffs to perform their part of the contract as to entitle the defendants to rescind the contract. It was found in that case that the plaintiffs never refused to perform any part of their contract and that they were willing to pay the sum due as soon as their cross claims were adjusted. It was also observed in that case that if the plaintiffs had been unwilling or unable to pay, the defendants would have been justified in refusing to deliver, but that the defendants did deliver the seed, that the neglect to pay was after delivery when the reciprocity of obligation had ceased, and that there was no evidence that the plaintiffs were unwilling or unable to pay for the deliveries which the defendants refused to make. It was further observed in that case that refusal to perform an integral and essential part of the contract would amount to refusal coming within the purview of S.39 of the Contract Act. Reference was also made to illustration A of the Section which is to the following effect: "A, a singer, enters into a contract with B, the manager of a theatre to sing at his theatre two nights every week during the next two months, and B engaged to pay her Rs. 100 for each night's performance. On the 6th night A wilfully absents herself from the theatre. B is at liberty to put an end to the contract." 18. Steel Brothers Co. Ltd. v. Dayal Khatav & Co. (1924 Bom. 100 for each night's performance. On the 6th night A wilfully absents herself from the theatre. B is at liberty to put an end to the contract." 18. Steel Brothers Co. Ltd. v. Dayal Khatav & Co. (1924 Bom. 247) referred to by learned counsel for the Civil Miscellaneous Appellant also does not support the position that repudiation of an essential part of the contract does not amount to a repudiation coming within the ambit of S. 39. In that case it was found that there was no repudiation of the contract by the plaintiff. It was also held that even if there was a repudiation it was after the breach of the contract on the part of the plaintiffs and that the plaintiffs did not accept the repudiation as a breach of contract. Johandoo Mal v. Bhulchand (1925 Lah. 217) referred to by learned counsel for the appellant does not in any way help him. On the other hand, it supports the first defendant. What was held in that case is this: perform his obligation under the contract when the time arrives for its performance or even before that time, the other may accept or decline that offer. If he accepts, then by concensus the contract is determined and then the party offering to repudiate cannot turn round and insist on its performance or sue for damages for non-performance." 19. Reference may be made in this connection to Muthayya v. Lakhu (37 Mad. 412) wherein it was held that if a stipulation entered into by the promisor as to time which is of the essence of the contract is broken, the promisee is entitled to repudiate or put an end to or avoid the contract. In Daulatram v. Alli Bhoy (33 Indian Cases 662) it was held that where time really of the essence of the contract failure to complete by the specified time gives right to the promisee immediately to rescind. In Re Atkinson Contract (1912) 2 Ch. I, 12) it was held that as soon as one party to the contract indicates that he will not perform it the other party has a right, if he chooses, to say that the contract is at an end. It is true that the breach of a non essential part of the contract will not amount to a repudiation of the contract. It is true that the breach of a non essential part of the contract will not amount to a repudiation of the contract. But breach of an essential term of the contract by one party gives the other right to repudiate the contract. (Vide Re Atkinson Contract, 76 Indian Cases 90). Whether a particular term in a contract is essential or non-essential depends upon the intention expressed by the parties to the contract as observed in Bettini v. Gye (1896)(1) 1.Q.B.D. 183. 20. From the above discussion of the terms of the contract and the correspondence between the parties prima facie it appears that the parties intended that the date of release of the picture was an essential term of the contract, and that the plaintiff refused to perform this essential part. Therefore prima facie the first defendant had the right to cancel the contract. He exercised that right by sending Ext. G, telegram. In the circumstances it cannot be said that the plaintiff has got a prima facie case to compel the first defendant to perform the contract. 21. It was also argued for the defendants that according to Cl. 24 of the contract the plaintiff was bound to institute the suit in Trivandrum Court. We do not wish to express any opinion on that point at this stage. 22. The next point for consideration is whether irreparable injury will be caused to the plaintiff if the temporary injunction is not granted. The plaintiff has no case that if he files a suit against the defendants for damages and obtain a decree he will not be able to realise the decree amount from them. There is also no difficulty in ascertaining the quantum of damages. Regular accounts are being kept in the Menaka Talkies for the collections from the picture. The collections are made under the supervision of the officers of the Municipality and also of the Distributors of the film. It was, however, argued for the plaintiff that exhibiting in a rival theatre a film in respect of which he had a monopoly for a period of two months from 1.1.1128 will affect his reputation. The plaintiff himself had advertised to screen this picture in the Lakshman Theatre from 1.1.1128. It was, however, argued for the plaintiff that exhibiting in a rival theatre a film in respect of which he had a monopoly for a period of two months from 1.1.1128 will affect his reputation. The plaintiff himself had advertised to screen this picture in the Lakshman Theatre from 1.1.1128. So long as he was not able, for no fault of the defendants, to screen the picture according to his advertisement it cannot be said that the screening of the picture in another theatre will affect his reputation. The real position is that the plaintiff wanted to postpone the release of this picture to suit his own convenience. The terms of the agreement entered into by him with the first defendant did not permit him to do this without the consent of the latter. The first defendant was not able to accommodate him in this matter as he himself was under an obligation to the Producer to have the picture released simultaneously in all theatres in Kerala. In the circumstances we do not think that there can be any loss of reputation so far as the plaintiff is concerned by reason of the fact that the picture is allowed to be exhibited in another theatre. 23. So far as balance of convenience is concerned the picture is being exhibited in the Menaka Talkies from 1.1.1128. An injunction at this stage restraining defendants 3 and 4 from continuing the exhibition of the picture will only create unnecessary inconvenience to them. Another picture is being exhibited in the plaintiff's theatre. If ultimately the plaintiff is found to be entitled to damages he can realise the same without any difficulty. In the circumstances, the balance of convenience also is not in favour of granting the injunction. 24. As regards the conduct of the parties there is nothing to be said either against the plaintiff or against the defendants. The plaintiff found it necessary to have the date of release of the picture postponed on account of the fact that he was not able to release the picture "Aan" on the 1st of August as he had expected, since that picture was not received in time. So far as the first defendant is concerned he was not able to accommodate the plaintiff as the Producer was particular that the picture should be released simultaneously in all centres in Kerala on the 1st of Chingom. So far as the first defendant is concerned he was not able to accommodate the plaintiff as the Producer was particular that the picture should be released simultaneously in all centres in Kerala on the 1st of Chingom. The first defendant was obliged to fulfil his own undertaking to the Producer in this behalf. Therefore, the question whether a temporary injunction should be granted or not in this case will have to be decided solely on the basis of the legal rights of the parties. 25. For the reasons given above, I do not think that this is a fit case in which a temporary injunction can be granted. 26. The order of the Court below is, therefore, confirmed and this Civil Miscellaneous Appeal is dismissed with costs. Dismissed. Subramonia Iyer, J. I agree to the order proposed, I would, however prefer to base the conclusion on the following ground. It is for two perpetual injunctions one a mandatory injunction directing respondents 1 and 2 to deliver the film in question to the plaintiff for its exhibition in his theatre called "Lakshman Talkies", the other, a prohibitory injunction preventing the defendants from exhibiting the said film in any theatre in or around Ernakulam for two months from 1.1.1128. The application for a temporary prohibitory injunction the order in which forms the subject-matter of this Civil Miscellaneous Appeal was in aid of the decree for the aforesaid perpetual injunction. So far as the negative part of the prayer, that is for injunction restraining the defendants from exhibiting the picture is concerned, the grant of it has now become impossible as defendants 3 and 4 have been exhibiting the same in the "Menaka" theatre, Ernakulam from 1.1.1128 i.e. for over a week. To grant in this appeal the temporary injunction asked for can therefore have the effect of restraining the exhibition of the film only in the future which does not appear to be proper as it would merely lead to inconveniences to all concerned. As regards the positive part of the prayer, that is for a mandatory injunction directing defendants 1 and 2 to deliver the film for its exhibition in the plaintiff's picture house, the grant of the temporary injunction is unnecessary. As regards the positive part of the prayer, that is for a mandatory injunction directing defendants 1 and 2 to deliver the film for its exhibition in the plaintiff's picture house, the grant of the temporary injunction is unnecessary. Should the plaintiff succeed at the trial he may get that relief and have the benefit of exhibiting the picture should he deem fit to avail himself of that advantage. Dismissed.