JUDGMENT - Mrs. SUJATA MANOHAR, J.:---The appellant, who is the original plaintiff, is the Principal and proprietor of coaching classes known as Sukh Sagar Classes giving tuitions to students studying in different branches of commerce, economics, costing, accountancy, maths etc. The Sukh Sagar Classes have their centres at Chowpatty, Andheri, Ghatkopar and Goregaon. The 1st respondent who is the original defendant No. 1 Cyrus N. Baxter joined the plaintiff's coaching classes in 1978. He teaches the subject of accounts Upto March 1987 there was no written agreement between the plaintiff and the 1st defendant in respect of the terms and conditions of service of the 1st defendant, who was employed by the plaintiff. In 1987, however, a written agreement was arrived at between the plaintiff and the 1st defendant. This agreement is dated 12th March, 1987. Under this agreement of 12th March, 1987 the plaintiff agree to hire the services of the 1st defendant and the 1st defendant agreed to serve the plaintiff for a period of 6 years from the date of commencement of the agreement. The agreement was to commence from 1st June, 1987 Under clause (3) of the agreement the plaintiff agreed to pay to the 1st defendant for each year of service a sum of Rs. 2 lacs or 43% of collection from the students by way of tuition fees in respect of the subjects taught by the 1st defendant, whichever is higher. The 1st defendant agreed to remain available for 12 batches per day, the batches not being of less than 50 students. Clauses of this agreement, which are material for the purpose of this appeal, are clauses (7) and (8) which are as under: "7) The Professes hereby agrees that he shall not render his services to any other person or Institution at any time during the said period of six years covered by this agreement. 8) The Professor shall be entitled to do private tuitions work outside the class's premises provided however, that the tuition timings should not clash with his service timings at Sukh Sagar Classes and that it should not impinge on the interest of Sukh Sagar Classes." (six). On the same day the 1st defendant also gave to the plaintiff a hand-written letter to the effect that he had agreed to work with the plaintiff's classes and not with anybody else. 2. On the same day the 1st defendant also gave to the plaintiff a hand-written letter to the effect that he had agreed to work with the plaintiff's classes and not with anybody else. 2. According to the 1st defendant, on or about 27th March, 1990 he had a talk with the plaintiff to the effect that he was not satisfied with the remuneration which was being paid to him by the plaintiff. According to the 1st defendant, for the years 1987-88, 1988-89 and 1989-90 he has not been paid 43% of the collection from tuition fees received from students taking the 1st defendant's subject. According to the plaintiff; he came to know on or about 29th March, 1990 that the 1st defendant was joining she coaching classes of the 2nd defendant-respondent No. 2 herein known as Deepak Commerce Classes. It seems that on 29th March, 1990 an advertisement in the Bombay Samachar appeared from Deepak Commerce Classes to the effect that Professor-Cyrus Baxter of Sukh Sagar Classes was joining Deepak Commerce Classes from the ensuing term. The plaintiff also inserted an advertisement in the same news-paper on the same day to the effect that Professor Cyrus Baxter was teaching in Sukh Sagar Classes. On 30th March, 1990 the plaintiff filed the present suit praying, inter alia, for an injunction restraining the 1st defendant from joining the 2nd defendant-classes as a professor until 31st May, 1993 as per the negative covenant in the agreement dated 12th March, 1987. The plaintiff applied for an ad-interim injunction in terms of the negative covenant which has been refused. The plaintiffs Notice of Motion for an interim injunction in terms of the negative covenant has also been dismissed by a judgment and order dated 8th June, 1990. Hence the present appeal. 3. In the meanwhile the 1st defendant claims to have entered into a partnership with Deepak Mistry, the sole proprietor of the 2nd defendant under a deed of partnership dated 3rd April, 1990 for conducting coaching classes known as Deepak Baxter Classes. 4. In order to decide whether any interim injunction in terms of the negative covenant can be granted in favour of the plaintiff and against the 1st defendant, it is first necessary to examine the question of enforceability of such a negative covenant. 4. In order to decide whether any interim injunction in terms of the negative covenant can be granted in favour of the plaintiff and against the 1st defendant, it is first necessary to examine the question of enforceability of such a negative covenant. There is a distinction between a negative covenant in a contract of employment restraining an employee from carrying on business or engaging in any occupation after the contract comes to an end and a negative covenant in a contract of employment which restrains the employee during his period of service from seeking employment elsewhere or engaging in any trade or business. It is now well settle that a restraint by which a person binds himself during the period of contract from not taking services with any other employer is not in restraint of trade and is not hit by section 27 of the Contract Act. 5. The Courts, however, have a discretion in enforcing such a negative covenant contained in the contract of employment. The negative covenant should not be unreasonable in the sense that it should not compel an employee either to serve the employer only or to remain wholly idle or starve. A contract of personal service cannot be specifically enforced. And it is also well settled that Courts cannot compel a person to perform indirectly what he cannot be compelled to perform directly. Therefore, a negative covenant which compels a person either to specifically perform his contract of personal service or to remain idle or starve will not be specifically enforced. The courts have also spelt out at times the public interest is utilising the skills and knowledge of an employer. The Courts have, therefore, held that even if such a covenant is in wide terms the Courts have a discretion to grant an injunction in limited terms so as to ensure firsts, that there is adequate protection to the employer and secondly, an injunction is not so wide as to bar an alternative venue of employment or earning a livelihood for an employee. In the case of (Niranjan Shankar Golikari v. Century Spinning and Manufacturing Co. Ltd.)1 , reported in A.I.R. 1967 S.C. 1098 the Supreme Court was required to consider such a negative stipulation in a contract of employment. In the case of (Niranjan Shankar Golikari v. Century Spinning and Manufacturing Co. Ltd.)1 , reported in A.I.R. 1967 S.C. 1098 the Supreme Court was required to consider such a negative stipulation in a contract of employment. The Supreme Court said (in para 12): "a restrain by which a person binds himself during the term of his agreement directly or indirectly not to take service with any other employer or be engaged by a third party has been held not to be void and not against section 27 of the Contract Act." It cited with approval the decision of the Gujarat High Court in (M/s. Lalbhai Dalpatbhai Co. v. Chittaranjan Chandulal pandya)2, reported in A.I.R. 1966 Gujarat 189 and a decision of the Bombay high Court in the case of (V.N. Deshpande v. Arvind Mills Co. Ltd.)3, reported in 48 Bom.L.R. 90. In the latter case the agreement of service contained both a positive covenant, namely that the employees shall devote his whole time and attention to the service of the employer and also a negative covenant preventing him from working elsewhere during the term of the agreement. The Court observed that illustrations (c) and (d) to section 57 of the Specific Relief Act in terms recognise such contracts and the existence of a negative covenant therein ; and therefore the contention that the existence of a negative covenant in a service agreement makes the agreement void on the ground it was in restraint of trade and contrary to section 27 of the contract Act has no validity. The Supreme Court went on to say that the Courts have a wide discretion to enforce by an indention a negative covenant of such a nature and there is nothing to prevent the Courts from granting a limited injunction to the extent that is necessary to protect the employers interest where the negative stipulation is not void. It may be the if the employee is not permitted to get himself employed in another similar employment, he might perhaps get a lesser remuneration. But that should not be a consideration against enforcing the covenant. 6. Discussing such a negative covenant, Cheshire, Fifoot and Furmston's Law of Contract 11th ed. It may be the if the employee is not permitted to get himself employed in another similar employment, he might perhaps get a lesser remuneration. But that should not be a consideration against enforcing the covenant. 6. Discussing such a negative covenant, Cheshire, Fifoot and Furmston's Law of Contract 11th ed. states thus at page 614 : "The only possible relief other than damages that can be granted to the plaintiff in such a case is an injunction i.e. an order which forbids the defendant to perform a like personal service for other persons. If, for instance, as in (Lumley v. Wagnar) the defendant has agreed that she will sing at the plaintiffs theatre in London for three months from 1 April and will not sing elsewhere during that period, it is obvious that an injunction prohibiting a breach of the negative part of the agreement may tempt the defendant to fulfil the positive part. "Nevertheless the Court invariably refuse the issue of an injunction if it will inevitable result in the enforcement in specie of a contract not otherwise specifically enforceable" 7. In the case of M/s. Lalbhai Dalpatbhai Co. v. Chittaranjan Chandulal Pandya, reported in A.I.R. 1966 Gujarat 189 a Division Bench of the Gujarat High Court also held that the Court has a discretion to grant an injunction restraining the breach of a negative stipulation in a contract of personal service under section 42 of the Specific Relief Act, 1963. The Court said that the discretion should be guided by two considerations. The injunction should be reasonable with reference to the contracting parties and it should be reasonable with reference to the interest of the public. 8. Section 41(e) of the Specific Relief Act provides that an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced. Under section 42, however, notwithstanding anything contained in clause (e) of section 41 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 circumstances that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it form granting an injunction to perform the negative agreement, provided that the plaintiff has not failed to perform the contract so far as it is binding on him. 9. 9. In view of this position in law, we have to see whether the plaintiff has, in the present case, made out a good prima facie case for the grant of an injunction to enforce the negative covenant contained in the agreement of 12th March, 1987. Clauses 7 and 8 of the agreement of 12 March, 1987 provide that the 1st defendant shall not render his services to any other coaching classes conducted by any other person or institution. Under Clause (8) however, the 1st defendant is entitled to do private tuition work. In other words, under these two clauses the 1st defendant cannot join, for the duration of this contract, coaching classes conducted by any other person or institution. He can take private tuitions. presumably, if he conducts his own coaching class, that would be Permissible under clause (a). It is the first defendant's contention that he is now conducting his own coaching class in partnership with Deepak Mistry, and such coaching classes 7 of the contract. The plaintiff has, on the other hand submitted that clause 7 precludes the defendant from serving any coaching classes conducted by any institution other than Sukh Sagar Classes. Hence the classes conducted by the 1st defendant in partnership are also hit by clause 7. Prima facie, in our view, clause 7 only relates to the 1st defendant seeking employment elsewhere in other coaching classes. He can conduct his own coaching class. Similarly, if he conducts such coaching classes in partnership with somebody else in our view, Prima facie, at any rate, it cannot be said that the 1st defendant is rendering services, and that too to someone else, in such coaching classes. 10. The plaintiff has contended that the partnership which is entered into by the 1st defendant with Deepak Mistry is sham and bogus, the plaintiff has contended that at the time when the suit was filed and when an advertisement by Deepak Commerce Classes appeared in the newspaper of 29th March, 1990, the advertisement clearly indicated that the 1st defendant had joined the employment of the 2nd defendants classes. There was no question of any partnership between the 1st defendant and the proprietor of the 2nd defendant. It was only after the suit was filed that the partnership deed of 5th April, 1990 is executed. There was no question of any partnership between the 1st defendant and the proprietor of the 2nd defendant. It was only after the suit was filed that the partnership deed of 5th April, 1990 is executed. The plaintiff also points out that the receipts which were issued to students even after the formation of the partnership and the starting of Deepak Baxter Classes, were receipts in the name of Deepak Commerce Classes. The lege of Deepak Commerce Classes is also to be found on the identity cards issued to the students of Deepak Commerce Classes. The 1st defendant's classes are also conducted in the same premises in which Deepak Commerce Classes are being conducted. The 1st defendant has also not brought in any capital in the partnership. 11. In contrast the defendants relied upon the fact that the partnership deed has been properly executed. An application for registration of the partnership has been made before the Registrar of Firms as also before the Income Tax authorities. A bank account has also been opened in the name of partnership. Now, at the stage of granting an interim injunction, it is not necessary for us to examine in depth these contentions. At the final hearing, after evidence is led, the rival contention in this regard can be adjudicated upon. What we would like to emphasise at this stage, is the fact that to say the least, the terms of the contract leave it open for the 1st defendant to conduct his own classes and prima facie, the contention that the 1st defendant can conduct such coaching classes in partnership with some one else, appears to have some substance. 12. The second circumstances which is to be borne in mind in the present case, at the interim stage, is the fact that there is some dispute as to whether the plaintiff has or has not failed to perform his part of the contract. According to the 1st defendant, the plaintiff has not paid him his due share of remuneration under the terms of the contract. In paragraph 2 of his affidavit in reply to the Notice of Motion, the 1st defendant has stated that for the year 1987-88, which was the first year of agreement, the plaintiff did not pay him 43% of the collection. He requested the plaintiff to give proper proof of the collection from the students of the 1st defendant. In paragraph 2 of his affidavit in reply to the Notice of Motion, the 1st defendant has stated that for the year 1987-88, which was the first year of agreement, the plaintiff did not pay him 43% of the collection. He requested the plaintiff to give proper proof of the collection from the students of the 1st defendant. But the plaintiff did not render accounts of the collection. According to the 1st defendant, the plaintiff stated that gross receipts from the 1st defendant's work had come to Rs. 5,44,940 and the plaintiff, therefore, was required to pay to the 1st defendant Rs. 2,34,324 being 43% of the collection. The plaintiff, however paid to the 1st defendant only Rs. 2 lacs. Similarly the 1st defendant has alleged that for the academic year 1988-89 also the plaintiff did not render any accounts of the collection and made payment aggregating to Rs. 2 lacs for that year. For the academic year 1989-90 also, according to the 1st defendant, the plaintiff has not rendered any account and has only made a payment of Rs. 1 lac on 6th September, 1989. The plaintiff in his affidavit in rejoinder, however has denied this allegation. The plaintiff relies strongly on the fact that the 1st defendant has not written any letter complaining about less payment nor has he given any written notice in this connection. The 1st defendant, however, claims that since he met the plaintiff almost every day, the protests made by him were oral. 13. The plaintiff in his affidavit in rejoinder has given figures of payment which, admittedly contain mistakes. As per the statement made by the plaintiff in this affidavit in rejoinder, for 1987-88 he paid to the 1st defendant Rs. 2,12,500/-. This figure has been now corrected to Rs. 2,02,600/-. Similarly for the year 1988-89 the figure has been subsequently corrected. For the year 1989-90, according to the 1st plaintiff, the defendant has been paid Rs. 1,15,000, while according to the 1st defendant, he has been paid Rs. 1 lac. The payments are by cheque and they are set out in a statement which annexed at page 177 of the compilation which is before us. For the year 1989-90, according to the 1st plaintiff, the defendant has been paid Rs. 1,15,000, while according to the 1st defendant, he has been paid Rs. 1 lac. The payments are by cheque and they are set out in a statement which annexed at page 177 of the compilation which is before us. What is more important for our present purpose, we do not have any material which would show that in fact, the parties had sat down together and made up the accounts for each of these years or worked out 43% of the collection in respect of the students taught by the 1st defendant. This again is a matter which would have to be examined at the stage of final hearing. But the fact that there is a dispute about whether the plaintiff has performed his part of the contract or not also weakens the plaintiff's case for an interim injunction to enforce a negative convenant. 14. Mr. Cooper, learned Counsel for the 1st defendant, also strongly urged that for the year 1989-90 the 1st defendant had taught all students till 31st March, 1990, which according to him, is the end of the teaching term for that year. The plaintiff however did not pay to the 1st defendant even the balance amount of Rs. 1 lac. He submits that this would indicate that the plaintiff has not been, throughout, ready and willing to perform his part of the contract. He, therefore, submits that specific performance of the negative covenant cannot be granted to the plaintiff. The plaintiff, however has categorically stated in his plaint and in his affidavit in support that he is ready and willing to perform his part of the contract and to pay the balance amount to the 1st defendant. He has also stated that he is willing to submit his accounts to a chartered accountant and on taking accounts would pay whatever is ascertained by the chartered accountant as the share of the 1st defendant in terms of the contract of 12-3-1987. The plaintiff in his affidavit which is filed in this appeal (pg. 207 of the compilation) has further stated that as regards the year 1989-90 the accounts between him and the 1st defendants were not settled because prior to the accounts being settled the 1st defendant committed breach of the contract and left the services of Sukh Sagar Classes. The plaintiff in his affidavit which is filed in this appeal (pg. 207 of the compilation) has further stated that as regards the year 1989-90 the accounts between him and the 1st defendants were not settled because prior to the accounts being settled the 1st defendant committed breach of the contract and left the services of Sukh Sagar Classes. In view thereof, he disentitled himself from claiming any account and as such the question of settlement of accounts at this stage does not arise. In our view, this by itself may not be sufficient to establish that the plaintiff is not ready and willing to perform his part of the contract as contended by Mr. Cooper, specially looking to the averments in the plaint and the affidavit in support filed in the Notice of Motion. 15. In any event, the case before us is not a clear case where there were no disputes between the parties and the employee left the services of his employer in order to seek a mere lucrative job elsewhere, in breach of the contract of service. Looking to the nature of disputes between the parties and the nature of the negative covenant, in our view, this is not a fit dase where interim injunction can be granted to enforce the negative covenant as prayed for by the plaintiff. 16. The appeal is, therefore, dismissed. In the circumstances there will be no order as to costs. Appeal dismissed. -----