MAHITOSH MAJUMDAR, J. ( 1 ) THIS application under Section 115 of the Code of Civil Procedure is against an order dated 11/11/1989, passed by the Lower Appellate Court affirming the order passed by the trial Court on 26/09/1989. ( 2 ) THE revisionist had instituted a suit No. 187 of 1989 on or about 25/09/1989, inter alia, against Rahut Syndicate in the Court of the Munsif at Jalpaiguri for specific performance of an alleged agreement dated 26/08/1989 said to have been entered into by and between the revisionist, as Manager of Raja Tea Estate and representing Abhijit Tea Co. Private Limited on one hand and Kalyan Kumar Rahut, a partner of Rahut Syndicate, who allegedly signed on behalf of Rahut Syndicate. In the said suit the revisionist sought for a mandatory injunction against Rahut Syndicate for supply of 10,000 Kgs. of green leaves produced at Anandpur Tea Estate to Raja Tea Estate, a permanent injunction restraining Rahut Syndicate from selling any green leaves to any party without first supplying 10,000 Kgs. of green leaves to Raja Tea Estate and for other consequential reliefs. ( 3 ) IT is the case of the revisionist that opposite party being in need of funds approached the revisionist for financial accommodation and an agreement was entered into between the revisionist and the opposite party. On such agreement being entered the revisionist paid Rs. 1,00,000. 00 to the opposite party and further from time to time duly advanced money according to the requisition of opposite party and also paid the bills of the opposite party for supply of green leaves. ( 4 ) IT is also the case of the revisionist that the opposite party in breach of the said agreement started supplying substandard green leaves which were unfit for producing tea. The opposite party also failed and neglected to supply the minimum quantity of 10,000 kgs. of green leaves as per terms and conditions of the agreement but such requests of the revisionist remained unheeded. ( 5 ) IT is the case of the revisionist that the opposite party was bent upon floating the terms of the agreement dated 26-8-89. The opposite party also failed and neglected to supply the minimum quantity of 10,000 kgs. of green leaves as per terms and conditions of the agreement but such requests of the revisionist remained unheeded. ( 5 ) IT is the case of the revisionist that the opposite party was bent upon floating the terms of the agreement dated 26-8-89. In those circumstances the above suit was filed for the following reliefs :-" (A) A perpetual injunction declaring the agreement dated 26-8-89 as valid, lawful and binding upon the opposite party; (b) A decree of mandatory injunction directing the respondent its partners, servants, agents, representatives and assigns to supply the minimum quantity of 10000 Kgs. of green leaves per day out of the total harvested crop of each working day of its Anandpur Tea Estate to your petitioner; (c) Alternatively, a decree of prohibitory injunction restraining the opposite party its partners, servants, agents, representatives and assign from supply any green leaves of its said Anandpur Tea Estate to any person without supplying the said minimum quantity of 10000 Kgs. of green leaves per day to your petitioner in the first instance; (d) Injunction restraining the opposite party from interfering the work of your petitioner as is set out in clause 2 of the terms and conditions of the agreement whereby your petitioner or his nominee cum supervise the quality of green leaves strictly; (e) Interlocutory injunction; (f) Receiver; (g) Costs; (h) Such further and/or other reliefs as your petitioner may be entitled in law and in enquiry". ( 6 ) THE revisionist filed an application under Order 39, Rule 1 read with Section 151 of the Code of Civil Procedure for injunction restraining the opposite party, its partners servants, agents, representatives and assigns from supplying any green leaves of its said Anandapur Tea Estate without supplying at least 10000 Kgs. of green leaves per day to the revisionist at the first instance and also an order of injunction against the respondent from interfering with the work of the revisionist in terms of Clause 8 of the agreement whereby the revisionist or his nominee can supervise the quality of green leaves strictly. A prayer for ad interim injunction was made. of green leaves per day to the revisionist at the first instance and also an order of injunction against the respondent from interfering with the work of the revisionist in terms of Clause 8 of the agreement whereby the revisionist or his nominee can supervise the quality of green leaves strictly. A prayer for ad interim injunction was made. Upon hearing the aforesaid application the Munsif by his Order No. 2 dated 26/09/1989 passed an order directing the respondent to appear within 15 days from the receipt of the notice of the application or injunction. However, the learned Munsif did not grant any ad interim order of injunction till hearing of the application for injunction. ( 7 ) BEING aggrieved and dissatisfied with the aforesaid order of the Munsif refusing to grant ad interim order of injunction the revisionist preferred a Miscellaneous appeal being Misc. Appeal No. 5 of 1989 before the Court, Jalpaiguri. Thereafter the revisionist filed an application for temporary injunction in the said miscellaneous appeal inter alia, praying for the following reliefs :-" (A) The opposite party, its partners, servants, agents, representatives and assigns be restrained from supplying any green leaves of its said Anandapur Tea Estate without supplying at least 10000 Kgs. of green leaves per day to your petitioner at the first instance; (b) The respondents be restrained by an order of injunction from interfering the work of your petitioner in terms of Clause 2 of the terms and conditions of the agreement entered into between your petitioner and the opposite party. " ( 8 ) ON or about 27/09/1989 the Court refused to grant an ad interim order. Against the order dated 27-9-1989 refusing to grant ad interim injunction during the pendency of the Misc. Appeal No. 5/89 the revisionist preferred a First Miscellaneous Appeal before this Court and this Court disposed of the said appeal but gave liberty to file a fresh application. ( 9 ) IN the meantime, the United Bank of India filed a suit being O. C. Suit No. 2 of 1988 in the Court of the Learned Assistant District Judge, Jalpaiguri against M/s. Rahut Syndicate for recovery of their loans and advances given to Rahut Syndicate for Anandapur Tea Estate. In the said suit on the prayer of the Bank Joint Receivers were appointed. In the said suit on the prayer of the Bank Joint Receivers were appointed. Subject to control and supervision the Joint receivers the existing management was permitted to run the business of Anandapur Tea Estate. The said order of the Court (for short the Court hereafter) appointed Joint Receivers was challenged in this High Court and on 1. 10. 88 this Court upheld the order of the appointment of Joint Receivers passed by the Assistant District Judge. ( 10 ) IN connection with the said agreement dated 26/08/1989 by and between the revisionist and for an on behalf of Avijit Tea Company Pvt. Ltd. and Rahut Syndicate, six partners of Rahut Syndicate filed O. C. Suit No. 126 in the Court of the Learned Munsif, Jalpaiguri against the revisionist, Kalyan Kumar Rahut, Managing Partners of Rahut Syndicate and B. L. Sharma, Manager of the Anandapur Tea Estate for a declaration that the said agreement was illegal, inoperative and void ab initio. In O. C. Suit No. 126 of 1989 learned Munsif granted an ad interim temporary injunction against the revisionist and on appeal being Misc. Appeal No. 8 of 1989 by the revisionist against the said order of injunction the Court allowed the appeal by his judgment and order dated 11th November, 1989. During the course of hearing the following points arose for consideration in O. C. Suit No. 127 of 1989; "whether the plaintiff Kalyan Mukherjee in O/c. Suit No. 127/1989 as Manager of Raja T. E. can maintain the suit as filed 2) Whether the contract in question has been breached ? if so, has it caused irreparable loss and injury to the appellant-plff. ? 3) Whether the plff. appellant can claim for an order of prohibitory injunction to enforce the alleged negative covenant ? and 4) Whether the plff. appellant can claim for a mandatory injunction which would amount to specific performance of a contract already breached ? ( 11 ) MR. Bankim Chandra Dutt, the Senior Advocate for the revisionist submitted that the Court was entirely wrong in refusing a mandatory injunction. It was further submitted that under the Company's Act a Manager or any other employee under circumstances may be authorised by the Board of Directors of a company by a resolution to file a suit, proceeding, to defend such proceedings and/or for taking other steps for the purpose of continuing the proceedings. It was further submitted that under the Company's Act a Manager or any other employee under circumstances may be authorised by the Board of Directors of a company by a resolution to file a suit, proceeding, to defend such proceedings and/or for taking other steps for the purpose of continuing the proceedings. Therefore, the Court erred in law holding that the revisionist was not a competent person. ( 12 ) IT was further argued on behalf of the revisionist that the District Judge erred in law in holding that the disputed agreement had already been breached and that compensation money was not the adequate relief. ( 13 ) RELIANCE was placed on Section 38 of the Specific Relief Act which lays down that perpetual injunction should be granted to prevent a breach of an obligation caused in his favour whether expressly or implied. In subparagraph of Section 38, it is laid down that the Court may grant a perpetual injunction in the case namely a) where there exists no standard for ascertaining the damage caused or likely to be caused; b) where that compensation in money would not afford complete relief. The Court erred in law in proceeding on the basis that green leaves of a quantity of 10000 Kgs. per day is a commodity available in the market or that the breach of an agreement for supply of such quantity of green leaves would not cause loss or injury to the revisionist and/or that such loss and injury could be compensated in the absence of any evidence that green leaves are available in the market. ( 14 ) IT was further argued that the learned judge erred in holding that to enforce a negative covenant which prima facie the Court is reluctant to do because in the matter of a tea estate. This is entirely a wrong view of the law. Where it is negative agreement prohibitory injunction both interlocutory as well as final may be made if the requirements of Section 38 have been fulfilled. This is entirely a wrong view of the law. Where it is negative agreement prohibitory injunction both interlocutory as well as final may be made if the requirements of Section 38 have been fulfilled. In considering the question, the Court also considered the question of grant of temporary mandatory injunction and he expressed the view that such a prayer cannot be allowed as the green leaves are ordinary articles of no special value and can be very easily available in the market within the meaning of Section 10 of the Specific Relief Act and that the learned Judge clearly misconceived the scope and purpose of a mandatory injunction under Section 39 and the grant of temporary mandatory injunction under the said Section read with Order 39, Rules 1 and 2 of the Civil Procedure Code. ( 15 ) THE learned Counsel for the parties after the making respective submissions filed Written Arguments. Reliance has been placed by Mr. B. C. Dutt, the learned Senior Advocate on the following decisions : 1969 (1) All ER 522 (Torquay Hotel Co. Ltd. v. Cousins); 1971 (3) All ER 1175; 1973 (3) All ER 1057 (Esso Petroleum Co. Ltd. v. Kindswood Motors (Addlestone) Ltd.); AIR 1985 Cal 248 (Indian Cable v. Sumitra Chakraborty); AIR 1990 SC 867 (Dorab Cawasji Warden v. Coomi Sorab Warden ). ( 16 ) IN the case reported in All ER 1969 (1) 522. The Court while considering the question of grant of injunction against threatened tort inter alia held :- i) the acts of the individual defendants were not protected by S. 2 or S. 3 of the Trade Disputes Act, 1906 because, although there was a trade dispute within the meaning of S. 5 (3) of the Act with the Torbay Hotel, there was no dispute as to wages, conditions of labour or recognition, between the defendant union and the Imperial Hotel, none of whose employees were members of the defendant union; and those acts done against the Imperial Hotel were not in furtherance of the dispute with the Torbay Hotel. ii) deliberate and direct interference with the contract which prevented its due performance was unlawful and the force majeure clause in the contract between the Imperial Hotel and Esso Petroleum Ltd. did not exempt the individual defendants from liability. ii) deliberate and direct interference with the contract which prevented its due performance was unlawful and the force majeure clause in the contract between the Imperial Hotel and Esso Petroleum Ltd. did not exempt the individual defendants from liability. ( 17 ) IN a case reported in All England Report 1971 (3) 1975, it was held that :-I) If one person, without just cause or excuse, deliberately interfered with the trade of business of another, and did so by unlawful means, i. e. by an act which he was not at liberty to commit, then he was acting unlawfully and in a proper case of injunction could be granted against him. ii) A person acted unlawfully if he complied with a direction of another which he knew or had reason to know was unlawful for then he was aiding and abetting an unlawful act and participating in it and could not excuse himself by saying that he was under contract to obey the direction for no person was bound to obey an unlawful direction. iii) Applying these principles to the defendants, by refusing to supply chain to the plaintiffs, they had deliberately interfered with the plaintiffs business since they had made it impossible for the plaintiffs to manufacture or sell the "lo-tow" equipment. This interference was done by unlawful means because it was done in obedience to the unlawful directions of S1 Inc not to supply chain to the plaintiffs, in breach of the injunction against S1 Inc, and in breach of the implied term of the licence agreement not to impede the plaintiffs in the manufacture and sale of the lo-tow equipment, and by obeying S1 Inc's instructions the defendants were aiding and abetting S1 Inc in breaking the injunction, and were themselves in contempt of Court. iv) Such unlawful interference with the plaintiffs' business could be restrained by the Court, and an injunction should issue restraining the defendants from obeying S1 Inc's directions purporting to prohibit them from supplying chain to the plaintiffs. Further, to protect the defendants from harassment by S1 Inc, a mandatory order would be made against the defend ants that they should use all reasonable endeavour to supply the plaintiffs with the chain needed for the manufacture of the lo-tow equipment. ( 18 ) THE other decision is reported in All England Law Reporter 1973 (3) 1057,. Further, to protect the defendants from harassment by S1 Inc, a mandatory order would be made against the defend ants that they should use all reasonable endeavour to supply the plaintiffs with the chain needed for the manufacture of the lo-tow equipment. ( 18 ) THE other decision is reported in All England Law Reporter 1973 (3) 1057,. In this decision the Court held that :- i) There was no reasonable prospect of the agreement being held invalid at the trial under Art. 85 of the EEC Treaty. Although a solus agreement of the kind in question was potentially capable of being within the prohibition embodied in Art. 85 (1) (2), it was not within that prohibition per se; whether or not it was, depended on surrounding circumstances, not on the terms of the individual agreement considered in isolation. The 1969 agreement was not one that was compulsorily notifiable under EEC Council Regulation 17 of 1962 for the purpose of the EEC Commission considering whether it should be exempt from Art. 85 (1) pursuant to Art 85 (3), It followed therefore that, until a declaration had in fact been made by the commission on the question whether the solus agreement was exempt, the court was entitled to assume that the agreement was valid and not struck down by the provisions of Article 85 (1) (2 ). In any event, even if the 1969 agreement was notifiable under EEC Council Regulation 17 of 1962, had not expired and therefore the Court could not treat the agreement as void under Art. 85 (1) (2); (ii) The Court had the power to grant the mandatory injunction sought for there could not be a clearer case of interference by Impact Holdings and Impact Motor whereby they had not merely procured a prevention of or hindrance to Kingswood in the performance of their contractual obligations to Esso, but had procured a direct breach by Kingswood of those obligations; the interference had been plainly deliberate and plainly direct. The Court was not precluded from granting a mandatory injunction on the ground that, the land having changed hands, it would be enforcing against the new owner an obligation deriving from covenant entered into by the former owner; that doctrine had no relevance for the Court was not being asked to enforce a contractual obligation against a person who was not a party to the contract, but to enforce the personal liability incurred by a tortfeasor to undo the consequences of his tort which could have been restrained before it had been committed. iii) In all the circumstances the relief sought by Esso, including the mandatory injunction, should be granted. " ( 19 ) IN a case reported in AIR 1985 Cal 248 . This court while reaching the finding that in a given situation Mandatory Injunction can be granted even it results in granting relief claimed in suit considered the decisions in Esso Petroleum Ltd. v. Kinds Woods Motors Ltd. (Supra) and also Acrow Ltd. v. Rex Chain Belt. "if a court is called upon to grant any relief on any interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting any such prayer. It is indeed true that such a relief should be granted only in exceptional cases. Though exercise of such a discretion should be limited to rate and exceptional cases, still at the same time no court should think that in law there is any absolute bar to the Court granting such a relief. In deserving cases, the Court should not hesitate to come in aid of a litigant and uphold the cause of justice by granting such a relief. " ( 20 ) IN the case reported in AIR 1990 SC 867 SC (supra) the learned Judges of the Supreme Court held in the manner following :"the relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full-relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are : (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. " ( 21 ) IT was submitted on behalf of the opposite parties that from a perusal of the order dated 11/11/1989 which is under challenge, it is amply clear that the District Judge, inter alia, held as follows :-I) that Kalyan Mukherjee (petitioner herein) had filed the suit and there was nothing to show that he was authorised by the Board of Director of Abhijit Tea Co. Pvt. Ltd. to file the suit; ii) that none of the three conditions as required u/s. 230 of the Contract Act should be satisfied by Kalyan Mukherjee; iii) that the disputed agreement has already been breached; iv) prima facie a standard exists for ascertaining damage that may have been caused to the petitioner for non performance of any act by the defendant; v) that green leaves are ordinary articles of commerce and have no special value or interest which cannot be said to be 'not easily obtainable in the market' within the meaning of Explanation II of S. 10 of the Specific Relief Act; vi) that the case does not merit granting of a prohibitory injunction to enforce any negative covenant; and vii) that grant of any prayer for temporary injunction would require supervision of the Court from day to day which is not possible. ( 22 ) ). ( 22 ) ). IT is the case of the opposite parties that no ground has been shown as to why the discretion exercised by the Lower Appellate Court should be interfered with by this Hon'ble Court and while disposing of the application of the revisions the learned Court below had taken into considerations all relevant facts and questions of law. It was further submitted that in view of the subsequent events that have taken place and/or orders that have been passed both by the learned Court below as also this Hon'ble Court and in view of various schemes that have been filed by the concerned parties before this Hon'ble Court in terms of an order passed by the Hon'ble Supreme Court, no order can or should be passed on the present revision application and the same should be dismissed; that the suit was really a suit for specific performance of the alleged contract between the petitioner and Rahut Syndicate, although there are some prayers in the plaint which may suggest that it is a suit for injunction only. The plaint taken as a whole clearly proves that the main and only idea is to obtain specific performance of the pretended agreement. ( 23 ) THE learned counsel for the opposite parties placed reliance on the following decisions :- air 1955 Patna 469 (Miss Sharmishtha Sinha v. Ram Chandra) air 1967 Gujarat 255 (Vinod Chandra v. Vivekanand Mills) air 1973 SC 2384 (Shamsher Singh v. Rajinder Prasad and others.) air 1979 Cal 84 (Tarai Tea Co. v. L. I. C. of India) ( 24 ) IN the case reported in AIR 1955 Pat 469 (supra), it was held that the nature of the suit should be determined not in accordance with the form in which the plaintiff framed his reliefs but on the proper interpretation of all the allegations made in the plaint. The plaintiff in the suit, in substance sought for declaration of title as regards the disputed premises and also for the consequential relief of possession from the defendant. Therefore the suit fell within the ambit of S. 7 (iv) (c) and not S. 7 (v) of the Court-fees Act and the Court-fees payable by the plaintiff must be computed not upon the market calue of the property in dispute but according to the valuation of the reliefs as put by the plaintiff. Therefore the suit fell within the ambit of S. 7 (iv) (c) and not S. 7 (v) of the Court-fees Act and the Court-fees payable by the plaintiff must be computed not upon the market calue of the property in dispute but according to the valuation of the reliefs as put by the plaintiff. It was further held that it is well settled that even in a case falling u/s. 7 (iv) (c) Court-fees Act, the Court is empowered under the law to revise the valuation, if, in its opinion, the valuation put by the plaintiff is arbitrary and capricious. ( 25 ) IN the case reported in 1967 Guj 255 (supra) it is held that the presence of a mere term in the service contract that the employee must work with the company in a particular capacity for a certain number of years will not, by itself, imply a negative stipulation that he ought not to serve any other before the term expires. Something more in the nature of a distinct negative stipulation is necessary before an injunction can issue restraining the defendant from acting contrary to the terms. ( 26 ) IN the case reported in AIR 1973 SC 2384 (Supra) it was inter alia held that :-"it seems to me that neither the answer to the question whether the plaintiff is or is not a party to the decree or the deed sought to be declared as null and void, nor to the question whether the declaration sought does or does not fall within the purview of S. 42 of the Specific Relief Act, furnished a satisfactory or conclusive test for determining the Court fee payable in the suit of this description. When the plaintiff is a party to the decree or deed, the declaratory relief, if granted necessarily relieves the plaintiff of his obligations under the decree or the deed and, hence it seems to have been held in such cases, that the declaration involves a consequential relief. In cases where the plaintiff is not a party to the decree or the deed, the declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff thought not a party to the deed or the decree is nevertheless bound thereby. In cases where the plaintiff is not a party to the decree or the deed, the declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff thought not a party to the deed or the decree is nevertheless bound thereby. For instance when a sale or mortgage of joint family property is effected by a Manager of a joint Hindu family, the alienation is binding on the other members of the family (even if they are not parties to it) until and unless it is set aside. Similarly, a decree passed against the Manager will be binding on the other members of the family. If therefore a coparcener sues for a declaration that such an alienation or decree is null and void the declaration must, I think, be held to include consequential relief in the same way as in those cases in which the plaintiff is himself a party to the alienation or the decree which is sought to be declared null and void". ( 27 ) IN the case reported in AIR 1979 Cal 84 (Supra) it was held that when the plaintiff is a suit to obtain a declaratory decree or order, where consequential relief is prayed, has stated the amount at which he values the relief the Court ordinarily does not interfere with the plaintiff's determination unless the Court is of opinion that valuation is illegal, palpably absurd, manifestly illegal or arithmetically wrong. ( 28 ) IT was urged by the learned Counsel on behalf of the opposite parties that it is a well accepted principle of law that by altering the pleading in a suitable manner the real cause of action cannot be camouflaged. This principle is well recognised in matters of Court-fees as also other matters and as such there is no reason why the same principle should not be applied in the instant case. It is the case of the opposite parties that the instant case is clearly governed by Ss. 10 and 14 of the Specific Relief Act and neither S. 39 of the Code of Civil Procedure has or can have any application. The pretended agreement does not expressly or impliedly contain any negative covenant clause, neither has any such covenant pleaded in the plaint. 10 and 14 of the Specific Relief Act and neither S. 39 of the Code of Civil Procedure has or can have any application. The pretended agreement does not expressly or impliedly contain any negative covenant clause, neither has any such covenant pleaded in the plaint. As such no injunction can be granted even under the provisions of S. 42 of the Specific Relief Act. ( 29 ) IT was further asserted on behalf of the opposite parties that the suit instituted be the petitioner is also bad inasmuch as Kalyan Mukherjee the petitioner is a Manager of Raja Tea Estate and as such is an agent of Abhujit Tea Co. Pvt. Ltd. which owns Raja Tea Estate. ( 30 ) IT was therefore submitted on behalf of the opposite parties that the revision application is liable to be rejected for the reasons aforesaid. ( 31 ) IT is appropriate at this stage to refer that a Bank made an application for intervention or for addition of parties. In my view, it is not necessary at this stage to add Bank as one of the defendants inasmuch as the Bank could have been added in a revision only in exceptional circumstances. In the event, the Court is of view that the case for injunction has been made out before this court should be considered by the Court below, such order of injunction in the absence of the Bank should not be made. All the contentions raised by the learned Advocate for the appearing Bank are not required to be gone into inasmuch as, the Bank will have sufficient opportunity before the appellate Court below for being added as defendant or respondent. ( 32 ) LET us now examine the rival contentions as advanced by the learned Advocate appearing for the parties. ( 33 ) BEFORE going into the respective cases of the parties, it is to be examined that whether the learned Court below, in particular, the first Appellate Court exercised its jurisdiction not vested in it, failed to exercise its jurisdiction as vested and whether a case has been made out for interference by this Court u/s. 115 of the Code of Civil Procedure. Keeping in view the fundamental issues indicated above, claims and counter-claims of the parties are to be examined. Keeping in view the fundamental issues indicated above, claims and counter-claims of the parties are to be examined. ( 34 ) THE first Appellate Court while deciding the four issues, as indicated above, failed to take into account whether the Court was justified in refusing to grant the prayer for perpetual injunction and if so, whether the fundamentals of the basic issues were effectively determined. It is well settled that every property not being an immovable property is movable property and such movable property includes goods which means every kind of movable property other than accident claims, money and includes stock and shares, growing crops etc. The Court never objectively determined whether the damages could provide adequate relief in breach of the contract. It is also well settled principle of law that when the goods relate to a seller, in certain cases, the Court may order specific performance of the contract without giving the defendant the option of relating the goods on payment of damages. Certain goods has had no effective definition but they do mean goods ordinarily unascertained which are identified in accordance with the parties' agreement for sale. While dealing with the issue whether the agreement in question has been breached, if so, has it caused irreparable injury to the revisionist. The view of the Court below that the grant of mandatory injunction was not an appropriate relief and while coming to such finding the Court below brought itself within the confines of specific performance. But the Court below failed to appreciate that there exists a sharp pointer to the distinction between mandatory injunction u/s. 39 of the Specific Relief Act and the grant of temporary injunction under the said Section read with O. 39 R. 1 of the Code. ( 35 ) THE first Appellate Court below, as would appear, by consideration of Ss. 10 and 14 applied wrong tests, inasmuch, as there should have been effective appreciation of Ss. 38 and 39 of the Specific Relief Act; that was not admittedly done. The Court while considering the standard for ascertaining the actual damages committed incurable infirmity in reaching the finding that compensation would have afforded complete relief Such finding as reached by the Court should not have been reached, inasmuch as, this fundamental question should not have been decided at the stage of hearing of an injunction application. The Court while considering the standard for ascertaining the actual damages committed incurable infirmity in reaching the finding that compensation would have afforded complete relief Such finding as reached by the Court should not have been reached, inasmuch as, this fundamental question should not have been decided at the stage of hearing of an injunction application. The finding of the Court that there existed standard for measuring damages that might have been caused to the appellant for non-performance of the agreement is wholly infirm in law, inasmuch as, such question could have been decided in the suit after proper evidence on trial and in appeal. The paint that was raised before the Court could have been raised in the suit for specific performance u/s. 10 of the Specific Relief Act and while too much emphasis has been held by the learned Advocate for the opposite parties on basic features of the order of the Court and also the reasons why the order should not be revised with reference to Explanation 2 of S. 10 read with S. 14 of the Specific Relief Act, the Court should not overlook the contention of Mr. B. C. Dutt that the suit was for injunction both mandatory and the temporary injunction was presented u/s. 39 of the Specific Relief Act read with Order 39 Rule 2 of the Code of Civil Procedure. The basic distinction as highlighted by Mr. Dutta was seriously resisted by the learned counsel for the opposite parties on the ground that the arguments of Mr. Dutt are without any basis and are devoid of any merit for the reason that the suit itself is prima facie not maintainable that whatever little doubt that could have been raised have been removed as would appear from paras 47 and 49 (pages 16 and 16a) of the revisional application; that the thorough examination and scrutiny of the different reliefs would show that the suit is essentially for enforcement of the so-called agreement. S. 39 of the Specific Relief Act is of no assistance to any litigant to enforce a contract and the case is clearly governed by Ss. 10 and 14 of the Specific Relief Act. Neither S. 39 of the Specific Relief Act nor Order 39 Rule 1 of the Code of Civil Procedure can have any application. S. 39 of the Specific Relief Act is of no assistance to any litigant to enforce a contract and the case is clearly governed by Ss. 10 and 14 of the Specific Relief Act. Neither S. 39 of the Specific Relief Act nor Order 39 Rule 1 of the Code of Civil Procedure can have any application. The facts and circumstances of the case according to the learned counsel for the opposite party do not warrant the grant of injunction, the learned counsel for opposite party highlighted the basic features and fundamental objections to the revision to the following effect - i) the green leave are available; ii) the reasons why the order under revision should not be disturbed; iii) availability of green leaves at a price; iv) knowledge of prohibition regarding sale of green leaves; and v) the invalidity of the agreement of sale and pinpointed the grounds for rejection of prayer for interlocutory order, the revisional application according to the learned Counsel for respondents must be dismissed inasmuch as no order could be made in favour of the revisionist. ( 36 ) THE contention as are recorded above appear to be very attractive in appearance, but a closer scrutiny itself would show that they lack in substance, inasmuch as both the Courts below committed serious error of law and without accepting the admitted position that there was a breach of agreement and it was found 10,000 Kgs. per day of green leaves are to be supplied under the agreement and the principles as laid down by the Supreme Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden AIR 1990 SC 867 which involves determination of facts of the present Company. Reliance was placed on paras 10 to 15 and 28-29 of the said decision; ( 37 ) FINDING of the Court on the questions that were framed are firm in law. ( 38 ) THE District Judge committed an incurable error in proceeding on the basis that the green leaves of a commodity of 10,000 Kgs. per day is commodity that were available in the market or that the breach of an agreement for effecting supply of such quantity of green leaves would not cause loss or injury and such loss or injury would be compensated in the absence of evidence, that green leaves are available in the market. per day is commodity that were available in the market or that the breach of an agreement for effecting supply of such quantity of green leaves would not cause loss or injury and such loss or injury would be compensated in the absence of evidence, that green leaves are available in the market. The District Judge manifestly failed to appreciate the scope and purpose of mandatory injunction u/s. 39 of the Specific Relief Act and grant of temporary injunction under the aforesaid Section read with Order 39 Rules 1 and 2 of the Code. ( 39 ) FINDINGS of the District Judge on the questions that were framed are infirm in law. The view the District Judge that Kalyan Mukherjee was competent person should not have been ex facie expressed or decided at the stage of interlocutory application or in appeal. This could only have been done in suit or an appeal. The point that there was a remedy of adequate compensation is not relevant at the stage of consideration for the grant of interlocutory injunction. This point could have been only raised in suit for specific performance u/s. 10 of the Specific Relief Act. The guiding principle as laid down by the Supreme Court in the decision as cited above should not be lost sight of. " (1) The plaintiff has a strong case for trial. That is, it shall be higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. " ( 40 ) THE Court should have considered whether the refusal to grant injunction would result in irreparable injury to the revisionist and his business, the balance of convenience was for granting injunction in favour of the revisionist and whether the payment of compensation would be adequate or would be mere formality, inasmuch as, the respondent company being in akward financial condition was saddled with a decree with an amount as would appear from the relevant documents placed before the Court as also before this Court. All the English decisions which have been quoted above are also to be taken into account. All the English decisions which have been quoted above are also to be taken into account. ( 41 ) THE other aspect, which calls for scrutiny is there a reasonable prospect to hold the contract invalid during trial ? was there no prohibition per se ? Whether it was depending on the surrounding circumstances ? All these factors should not have been overlooked. ( 42 ) THE points that fell far determination before Court were not properly looked into by effective appraisal of the pros and cons of the entire matter. Lord Danning in his classical language delivered his opinion in Torguay Hotel Co. Ltd. v. Cousins. ( 43 ) THE contention therefore raised by the opposite parties also do not constitute a ground for rejection of the application' for revision. Anil Kumar Sen, J. in Indian Cables Co. Pvt. Ltd. v. Sumitra Chakraborty (Supra), after careful consideration of all the decisions cited above also allowed the restoration of possession by granting a mandatory injunction. The balance of authorities suggest that it is matter for the Court to use its discretion whether to grant a mandatory injunction or not there is possibility no mild presumption that plaintiff is not prima facie entitled to an injunction. It is also well known principle of law in considering whether damages should be awarded in substitution for injunction. The Judges of the Court often emphasize that the Court should not be turned into a Tribunal for legalising wrongful act or allow a wrong to continue simply because the wrong-doer is willing to pay for the injury be inflicted. This records a note of caution that the exercise of a power to grant mandatory injunction must be attended with greatest precaution. Precedents as cited at the Bar suggest that injunction may be granted if the injury done to the plaintiff cannot be estimated and sufficient compensation by a pecuniary sum or that the defendants' conduct would practically deprive the plaintiff to enjoy the property. Money given could not adequately compensate a person so inflicted with the irreparable injury. The Courts in case of specific performance should protect the injured person in the same position as before the injury was done. Court's discretion in those circumstances as are available in the facts and circumstances as are available in the facts and circumstances of the case is a broad one. The Courts in case of specific performance should protect the injured person in the same position as before the injury was done. Court's discretion in those circumstances as are available in the facts and circumstances as are available in the facts and circumstances of the case is a broad one. The dilema between allowing a party to acquire right to contract a covenant imposed through an injunction not too onerous burden on the defendant when the plaintiff's loss is proportionately too high the question of damages, in my view, was not wholly adequate remedy and would not protect the revisionist from the consequences of this sort of unwarranted contract breaking. I am not required to express any final opinion in the matter but the decisions cited at the bar reminds the Court that unilateral action of respondents should not be overlooked. Defendants agreed to supply 10000 Kgs of green leaves per day. Clause 8 of the agreement as is quoted above provides for termination mutual and no one can terminate the agreement unilaterally. Plaintiff duly entered and started obtaining supplies. Subsequently, the opposite parties acted unflaterially (unflinchingly ?) in clearest breach of Cl. 8 of the agreement. In these circumstances the finding of the Court, in my view, prima facie, is without the consideration of the basic question that the court in such a situation has ample jurisdiction to restrain the defendant from terminating due execution of contract. The grant of compensation in the actual perspective alone should not have weighed heavily with the court. The totality of the matter in its factual and legal perspective constitute warrant for revising the order of the learned court. The powers u/s. 115 of the Code are intended to be exercised with a view to subserve and not to defeat the ends of justice. Interference is merited only in aid of justice and not merely to give effect to technicalties. It is also well settled that the interference in the revision is discretionary but such exercise of discretion must be founded upon sound principles. Interference is merited only in aid of justice and not merely to give effect to technicalties. It is also well settled that the interference in the revision is discretionary but such exercise of discretion must be founded upon sound principles. The debate that prolonged before this Court as properly supplemented by written arguments by the parties would indicate that the Court while refusing to grant interim order of injunction was swayed by inconsequential matter and never took into account that there were materials which were required to be considered by the Court by proper exercise of jurisdiction thus vested in the Court. The said jurisdiction, in my view was not properly exercised and the decision suffers from reception of wrong tests. ( 44 ) IT appears that the order sought to be revised, goes to the root of the cause and hence it is, in my view, to be revised. Ordinarily the High Court is loath to interfere in interlocutory orders but where the exercise of jurisdiction or failure to exercise it results in irreparable injury interference ex debito justifies becomes necessary. At the interlocutory stage the Court reached the firm finding affecting the merits of the case. Apart from the above, provisions of Ss. 10 and 14 were not objectionably considered nor there is a proper consideration of Ss. 38 and 39 of the Specific Relief Act read with Order 39, Rr. 1 and 2 of the Code of Civil Procedure. The finding of the Court, if properly scanned, shows that the appellate Court went to the root of the case touching the jurisdiction which in effect may result in dismissal of the suit. Decision of the Court on the facts of the case amounts to a case decided. ( 45 ) THE order sought to be revised is set aside. The Court is directed (to) hear out the appeal on merits without being inhibited by any order passed in the present proceedings. De novo determination of appeal for injunction shall be reached within 7 days from the date of receipt of copy of the order. ( 46 ) NO adjournment shall be granted in the matter. ( 47 ) LET a Xerox copy of the order go down to the Court below forthwith at the cost of the department. ( 48 ) THE application is allowed without there being any order as to costs. Appeal allowed.