UNION OF INDIA v. WORLD TEL. INC — 1996 DIGILAW 56 (DEL)

S. D. Pandit, J. ( 1 ) THIS interim application is filed by the original. plaintiff in S. 2685/95 to get ad-interim injunction. ( 2 ) SUIT No-2685/95 is filed by the plaintiff against in all four defendants. A premier sporting event, viz. 1996 Cricket World Cup is due to be held in February-March 1996 in which 37 matches are to be played in India, Pakistan and Sri Lanka. Defendant No. 3 is a Joint Managing Committee set up by the Cricket Control Boards of India, Pakistan and Sri Lanka and is popularly known as pilcom . The said world cup is also named and titled as Wills World Cup 1996. ( 3 ) DEFENDANT No. 1, World Tel. Inc. is the holder of the exclusive world radio and television rights of the said Wills World Cup and the said rights are granted to defendant No. 1 by defendant No. 3 by agreement dated 23. 8. 1993. Defendant No. 2, Star Television is an international television network whereas Defendant No. 4 is the Cricket Control Board of India. ( 4 ) IT is the case of the plaintiff that on 14. 5. 1994 a contract took place between plaintiff and defendant No. 1 and defendant No. 1, by the said greement, granted to the plaintiff exclusive live broadcting rights within India with respect to all forms of television, including commercial and non-commercial, cable, satellite, pay T,v. and pay per view as well as radio for all world cup mathces in these series, without any limitation. It was also agreed that plaintiff was to pay to defendant No. l U. S. $47,50,000 for the said exclusive television and radio rights. Out of the aforesaid amount 30 per cent was to be paid on 15. 7. 1994; 30 per cent on 15. 1. 1995; 30 per cent in October 1995 and 10 per cent on 15. 1. 1996. It is the case of the plaintiff that as per the said agreement the plaintiff has paid 90 per cent of the amount to defendant No. 1. ( 5 ) ON 14. 5. 1995 a Memorandum of Understanding was signed between plaintiff and defendant No. 1 which reflects the said agreement between the parties. 1. 1996. It is the case of the plaintiff that as per the said agreement the plaintiff has paid 90 per cent of the amount to defendant No. 1. ( 5 ) ON 14. 5. 1995 a Memorandum of Understanding was signed between plaintiff and defendant No. 1 which reflects the said agreement between the parties. It is further averred by the plaintiff that plaintiff was all along ready and willing to perform his part of the contract and the final agreement between the parties could not be written and signed for no fault of the plaintiff. Plaintiff has made the payment in order to show its readiness and willingness to accept the terms of the contract. But the defendant No. 1 in order to avoid the contract in question has falsely alleged that the third instalment was payable on 15. 10. 1995, but the defendant No. l had given extension of lime till 27. 10. 1995 and on 26. 10. 1995 the third instalment of 30 per cent of the agreement amount was despatched by bank draft to defendant No. l. But in spite of the same the defendant No. l has illegally and improperly written a letter on 1. 11. 1995 making false allegations against the plaintiff that the plaintiff was not ready and willing to execute the agreement and that the plaintiff has alsonot paid the third instalment in time and has terminated the contract between plaintiff and defendant No. l by the said letter dated 1. 11. 1995. Plaintiff has, therefore, filed this suit for getting the declaration that the letter dated 1. 11. 1995 is illegal and invalid and to get a decree for specific performance of the agreement dated 14. 5. 1994 and to pass a decree of perpetual injunction restraining the defendant No. 1 from acting in any manner on the letter dated 1. 11. 1995 and from granting to any third party the live broadcasting rights within India ineluding all forms of television including commercial and non-commercial television, cable, satellite, pay T. V. , pay per view as well as radio rights in respect of Wills World Cup 1996. 11. 1995 and from granting to any third party the live broadcasting rights within India ineluding all forms of television including commercial and non-commercial television, cable, satellite, pay T. V. , pay per view as well as radio rights in respect of Wills World Cup 1996. Plaintiff further wants a perpetual decree of injunction to restrain the defendants either by themselves or through any person other than the plaintiff live broadcasting rights within India including all forms of television including commercial and non-commercial television, cable, satellite, pay T. V. , pay per view as well as radio rights in respect of Wills World Cup 1996. ( 6 ) PLAINTIFF has filed this interim application to get a temporary injunction to restrain defendant No. l from acting upon the letter dated 1. 11. 1995 and granting to any other party or any other person any live broadcasting rights within India including all forms of television including commercial and non- commercial television, cable, satellite, pay T. V. , pay per view as well as radio rights in respect of Will World Cup 1996. ( 7 ) THE claim of the plaintiff is resisted by defendant No. l. It is the contention of the defendant No. 1 that there was no concluded contract between the plaintiff and defendant No. 1. Thus, plaintiff was never given any legally enforceable rights whatsoever in law. Therefore, plaintiffs suit is misconceived. It is further contended that the plaintiff was unnecessarily raising various objections and was avoiding to have the concluded contract between plaintiff and defendant No. l. Though defendant No. 1 had sent the draft agreement, the plaintiff had tried to add certain terms which could not be accepted in view of the contract between defendant No. l and defendant No. 3 and as they could not be also accepted in view of the terms themselves. It is further contended that as per the negotiations between the parties the instalments were to be paid on the agreed dates between the parties and the payment of the instalments on the due dale was the essence of the contract. Though the plaintiff was warned about the payment of the third instalment and though leniency was shown towards the plaintiff by giving extension of time till 27. 10. 1995 the plaintiff has not till date made the payment of the third instalment. Though the plaintiff was warned about the payment of the third instalment and though leniency was shown towards the plaintiff by giving extension of time till 27. 10. 1995 the plaintiff has not till date made the payment of the third instalment. As the payment of the instalment was the essence of the contract and as there was no concluded contract between the parties the letter issued by defendant No. 1 on 1. 11. 1995 is valid and legal. It is further contended that after issuing the letter as aforesaid defendant No. l has entered into contract with defendant No. 2 for the broadcasting and telecasting matches of the Wills World Cup to be played in India and, thus, as third party interest is created the plaintiffs claim for ad-interim injunction is not tenable and its application be rejected. It is also further- contended by defendant No. l that defendant No. l is not juristic entity and, as such, the suit is not tenable against defendant No. l. ( 8 ) DEFENDANT No. 2 has contested the claim of the plaintiff by contending that defendant No. 2 has entered into a valid and binding contract with defendant No. 1 on 3. 11. 1995 and has obtained the licence to make a television coverage of the Wills World Cup 1996 for exclusive cable/satellite transmission for all areas covered by Asiaset Footprint excluding Australia and Newzealand. In pursuance of the contract defendant No. 2 has also made payment of a large sum of money towards part satisfaction of its obligation to defendant No. 1. Apart from the payment to defendant No. 1 the defendant No. 2 has also spent a large sum in pursuance of the said contract and has also collected advertisements worth US $ 1. 3 million before November 22, 1995 and has entered into binding contracts with the advertisers. Therefore, in these circumstances, if an injunction is issued against defendant No. 2 then he would have to face numerous litigation from his advertisers. Therefore, in these circumstances, the plaintiff is not entitled to claim and get the specific performance and he is entitled at the most only to get damages. ( 9 ) DEFENDANTS 3 and 4 have also contested the claim of the plaintiff. Therefore, in these circumstances, the plaintiff is not entitled to claim and get the specific performance and he is entitled at the most only to get damages. ( 9 ) DEFENDANTS 3 and 4 have also contested the claim of the plaintiff. It is the contention of defendant No. 3 that defendant No. 3 is also not a legal entity and, as a matter of fact, the Cricket Control Boards of Pakistan and Sri Lanka are necessary party to the present suit. It is further contended that there is no parity of contract between the plaintiff and defendant No. 3 and defendant No. 3 has wrongly been joined in this suit. It is further contended that the event in question belongs to defendant No. 3 and defendant No. 1 was to act in order to get the maximum financial benefits of the said event as lot of money was required for staging the event in question. Money is required tobe paid to the Cricket Control Boards who are hosting the matches, money is also spent towards the maintenance of grounds, money is also paid to the participating players and for the management and staging of the whole show. The claim of the plaintiff that it was all along rady and willing to perform the essential terms of the agreement between the plaintiff and defendant No. l is false. Plaintiff has filed the present suit with the oblique motive and with a view to cause illegal prejudice and damage to defendant No. 3. The claim of the plaintiff that plaintiff will suffer irreparable loss and injury which could not be compensated with money is also false. In the circumstances, the plaintiffs claim for injunction is not at all tenable. If at all the plaintiff has suffered damages it could be compensated in terms of money. Therefore, in these circumstances, the plntiffs claim for ad-interim injunction be rejected. ( 10 ) THE plaintiff is seeking interim orders in this application. If the interim orders which the plaintiff is seeking by this interim application are considered alongwith the prayers in the main suit then it would be quite clear that the granting of interim relief would amount to granting the substantial relief in the suit itself. Generally the Court will not grant the interim relief if the granting of the same will amount to grariting tin. substantial relief in the main suit. Generally the Court will not grant the interim relief if the granting of the same will amount to grariting tin. substantial relief in the main suit. But merely because the granting of interim relief will have the effect of granting the substantial relief in the suit will not be a ground for not considering the claim of interim relief. The discretion lies with the Court to grant such a relief in exceptional cases. I am supported in this view by the dedcision of the Division Bench of the Calcutta High Court in the case of Indian Cable Company Limited Vs. Smt. Sumitra Chakraborty [air 1985 Calcutta 248]]. The head-note of the said case reads as under: "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 rare 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 uphld the cause of justice by granting such a relief. " ( 11 ) IN the instant case the plaintiff has come before the Court with the case that he has entered into a contract with defendant No. 1 as regards telecasting and broadcasting the cricket matches for the Will World Cup 1996 to be played in India in the months of February and March 1996. According to the plaintiff the said contract has been illegally and improperly terminated on 1. 11. 1995 and it has, therefore, come before the Court to get the specific performance of the said contract as well as to get a decree for perpetual injunction against the defendant No. 1 as well as the other defendants. It is not at all possible to hear and decide the whole suit before the end of this month and if this interim application is not decided then the very purpose of filing this application as well as the suit is likely to be defeated. It is not at all possible to hear and decide the whole suit before the end of this month and if this interim application is not decided then the very purpose of filing this application as well as the suit is likely to be defeated. Therefore, in view of the facts and circumstances of the case I hold that this is a fit case for exercising the discretion of this Court in considering the interim relief even if it happened to be granted it would amount to granting the final relief. In my opinion, it would not be a wise discretion not to consider the interim relief only on the ground that the consideration of interim relief would amount to consideration of the main suit. I, therefore, proceed to consider the interim application on merits. ( 12 ) THERE is no dispute over the fact that the Wills World Cup Cricket Matches, 1996 are to be played in three countries, viz. India, Pakistan and Sri Lanka. It is also an admitted fact that the said matches are organised and managed by the Managing Committee comprising the Cricket Control Boards of the said three countries, viz. India, Pakistan and Sri Lanka. This committee is defendant No. 3 in this suit, which is popularly known as PILCOM. It is also common ground that defendant No. 3, PILCOM, has entered into a contract with defendant No. 1 World Tel Inc. for broadcasting and telecasting of the cricket matches in all the three countries. Defendant No. 1 World Tel Inc. has further entered into contracts with the agencies of Pakistan and Sri Lanka for broadcasting and telecasting the matches to be played in Pakistan and Sri Lanka respectively. World Tel Inc. had also approached the present plaintiff, Doordarshan, a Government of India undertaking, for entering into a contrast with defendant No. 1 for telecasting and broadcasting the matches to be played in India. Negotiations took place between the parties and Memorandum of Understanding has been executed by President of World Tel Inc. . and Director General of Doordarshan on 14. 5. 1994. Negotiations took place between the parties and Memorandum of Understanding has been executed by President of World Tel Inc. . and Director General of Doordarshan on 14. 5. 1994. It is the claim of the plaintiff that the said document of memorandum of understanding is a contract entered into between the plaintiff and defendant No. 1 and by the said contract the plaintiff has got the rights of telecasting and broadcasting of the World Cup Matches to be played in India and, therefore, they have got exclusive right of telecasting and broadcasting all the matches to be played in India. As against this, it is contended on behalf of the defendants that there was no concluded contract between the plaintiff and defendant No. 1. ( 13 ) LAM aware that I am dealing with an interim application. I am not Finally disposing of the suit. Therefore, I want to make it quite clear that my discussion of the material on record as well as my observations and Findings are only prima facie and for the purpose of deciding the interim application before me. They are not conclusive. At the time of Final trial of the suit there is likelihood of myself coming to contrary conclusions. ,the parlies should not be under the impression that I have come to a Final conclusion. With these observations, I proceed to consider the First controversy between the parties. ( 14 ) IN order to decide the controversy between the parties it is necessary to see what were the terms of mutual understanding between the plaintiff and defendant No. l. It is an admitted fact that they have executed a Memorandum of Understanding of the agreed terms between them. For the purpose of deciding the controversy in question term Nos. 2,4, 7, 8, 9, 11 and 12 of the said Memorandum of Understanding are to be referred and considered. I, therefore, reproduce them as under: 2. As the rights holder, World Telhave the responsibility for production of the television coverage of all matches and have appointed Grand Slam Sports to serve as Producer of all 1996 Cricket World Cup matches. Warranties that these arrangements are in place have been given to licensees in major television markets and have been proposed as a requirement to agreements byother prospective licensees. 4. Warranties that these arrangements are in place have been given to licensees in major television markets and have been proposed as a requirement to agreements byother prospective licensees. 4. The matches of the 1996 Cricket World Cup played in India willbe covered for television through a co-production between Doordarshan and Worldtel. The responsibilities in respet of personnel, equipment, infrastructure and support facilities will be shared between Doordarshan and Worldtel. 7. The details of co-production in terms of personnel, equipment, infrastructure, and support facilities, including the sharing of costs for these and uplink facilities will be worked out jointly by the parties by 30 September 1994. 8. Worldtel hereby grant to Doordarshan exclusive live broadcast rights within India with respect to allforms of television, including without limitation commercial and non-commercial television, cable, satellite, pay tv and pay- per-view, as well as radio, with respect to all World Cup matches. 9. THE rights fee payable to Worldtel with respect to Doordarshan s exclusive live television and radio rights will be US $4,750,000 (net of any taxes), payable 30% upon signature of agreement, 30% on January 15, 1995, 30% on October 1995 and 10% on January 15, 1996. It is understood that the rights granted hereunder are subject to the timely payment of the license fee instalments, which timely payment is of the essence of this agreement. 11. AS Worldtel s licensee, Doordarshan will be subject to the undertakings by Worldtel in its agreement with PILCOM with respect tothe rights to be accorded to a title sponsor to be designated by PILCOM. 12. The parties mutually intend that this document may be superseded by more detailed arrangements with respect to co-production and/or the grant of television rights. However, it is understood that by their signature below, the parties intend to enter into a legal and binding contract (to serve as the agreement between them until and unless such additional agreements are mutually executed and effective), subject to the jurisdiction of the courts of India and the United States, and the parties mutually undertake to complete any additional formalities required for recognition and enforcement of the agreement under the laws of either country. (EMPHASIS supplied by me ). ( 15 ) TERM No. 1 makes it quite clear that PILCOM is the owner of the event and Worldtel is holding the world-wide radio and television broadcasting and telecasting rights of Wills World Cup 1996. (EMPHASIS supplied by me ). ( 15 ) TERM No. 1 makes it quite clear that PILCOM is the owner of the event and Worldtel is holding the world-wide radio and television broadcasting and telecasting rights of Wills World Cup 1996. Term No. 2 further makes it clear that they have already appointed Grand Slam Sports to serve as Producer of all the matches of the said Will World Cup 1996. Term Nos. 4 and 8 make it clear that Doordarshan has exclusive live broadcasting rights within India for the matches to be played inindia. Term No. 7 makes it clear that parties were to jointly work out the details of co-production in terms of personnel, equipment, infrastructure and support facilities, including the sharing of the costs for them and uplink acilities by 30. 9. 1994. Term No. 11 makes it clear that Doordarshan as a licencee of Worldtel willbe subject to the undertaking given by the Worldtel in agreement with PILCOM and the last term No. 12 makes it clear that the parties have understood that they were to enter into a legal and binding contract and to do needful for recognition and enforcement of the agreement under the law. Alongwith the above terms certain correspondence, which is produced by the parties on record, will have to be taken into consideration. ( 16 ) PLAINTIFF had sent a letter to defendant No. 1 on 14. 5. 1994 wherein it has been mentioned as under: "kindly send us the draft of the detailed agreement relating to the production rights of the matches as envisaged in Clase No. 12 of the Agreement. " ( 17 ) DEFENDANT No. 1, Worldtel has written a letter on 2. 5. 1995 alongwith which they had sent the agreement asking the plaintiff to sign and return the same to them. Thereafter, defendant No. 1 had sent letter dated 18. 8. 1995 wherein defendant No. 1 had written as under: "i am following up on my fax s of June 22 and July 19 regarding the Wills world Cup 1996 Agreement which must be signed by us. Please note that Worldtel is obliged to the Owner of the Event, PILCOM to execute a standard license agrement with all its licensees and to date Doordarshan is Worldtel s only licensee that has failed to execute our license Agreement despite several reminders. Please note that Worldtel is obliged to the Owner of the Event, PILCOM to execute a standard license agrement with all its licensees and to date Doordarshan is Worldtel s only licensee that has failed to execute our license Agreement despite several reminders. The license agreement was couriered to you on June 5,1995. YOU will recall that paragraph 12 of our memorandum of Understanding (MOU), executed May 14, 1994 contemplates our entering into more detailed docuentation both with respect to the grant of television rights and our co-production arrangements. In particular, please note that in accordance with paragraph 11 of the MOU, Doordarshan is obliged to comply with the undertakings by Worldtel in its agreement with PILCOM with respect to the Title Sponsor. All of these subjects are covered in detail in the license agreement. WHEN we spoke on August 15, you mentioned that you would provide us with a status report on the license agreement on August 16. We have not heard from you. PILCOM is demanding that we execute the license ageement on or before August 25 and that if we donot, the rights be licensed to another licensee for the territory of India. PLEASE treat this matter as urgent. We look forward to hearing from you at the earliest. " ( 20 ) THE same is followed by another letter dated 4. 10. 1995. ( 21 ) THEREAFTER, the present plaintiff sent its own revised draft, without mentioning in the covering letter as to why the draft sent by defendant No. 1 was not acceptable and which clauses or terms of the said agreement were not acceptable to them. Defendant No. 1 after receiving the said draft sent by the plaintiff had informed by letter dated 22. 9. 1995 as to what terms were not agreeable and what terms of the revised draft sent by the plaintiff were contrary to the MOU and the original agreed terms in the MOU should be retained in certain clauses and concluded their letter by writing as under: "closing we wish to advice you that our client PILCOM has requested that the Worldtel report on the progress of our negotiations with Doordarshan. We would know that your letter and draft August 31 were in response to our. We would know that your letter and draft August 31 were in response to our. letter and draft of June 5 and would respectively know that we must have more prompt response to this letter so that we might report to PILCOM at anearly dale. We would, therefore, ask to have your Final position on the above matters not letter than Friday September 29, 1995, after which we will be compelled to assume that your current position stands. NATURALLY we would prefer to hear from you and, if possible, to achieve a mutual satisfactory World Cup Agreement with Doordarshan. " ( 23 ) IT is very surprising that after receiving the above letter plaintiff has not sent any reply and, admittedly, no agreement has been executed between plaintiff and defendant No. 1. There is absolutely no explanation in the plaint as to why no reply was sent to this letter and how the contents of the said letter were contrary or inconsistent with the MOD entered into by the parties on 14. 5. 94. ( 24 ) ADMITTEDLY, no details of co-production in termsof personnel, equipment, infrastructure and support facilities, including the sharing of costs for them and uplink facilities have been worked out jointly by the parlies as per term No. 7 of the MOD not only till 30. 9. 1994 but till the date of the suit. Similarly, the document contemplated by term No. 12 of the MOU has not been executed though the defendant No. 1 was pressing hard for getting the said document executed. The conduct of the plaintiff clearly shows that the plaintiff did not conduct ilself as there being an executed license contract between the plaintiff and defendant No. 1. For instance, plaintiff had received the letter from Star TV, defendant No. 2, dated 13. 10. 1995, wherein defendant No. 2 had informed the Director-General of plaintiff that there was uncertainly regarding the contract between Doordarshan and Worldtel as well as defendant No. 3 PILCOM and that they, i. e. Star TV were being approached by them. On this letter there is an endorsement of the officer of the plaintiff as under: "discussed with DG. He has asked to keep it pending for the present. On this letter there is an endorsement of the officer of the plaintiff as under: "discussed with DG. He has asked to keep it pending for the present. " ( 25 ) IN this letter Star TV had approached Doordarshan to have a joint venture for the programme in question of Doordarshan and Star TV after mentioning about the uncertainty of the transaction between the plaintiff and defendant No. 1. In the natural course of human conduct if at all plaintiff had thought that there was a concluded contract between plaintiff and defendant No. l then plaintiff would have immediately informed Star TV that there is a concluded contract between the plaintiff and defendant No. 1 and there is no question "of any joint ventu re by Doordarshan and Star TV, as suggested by Star TV. ( 26 ) NO doubt the MOU between the plaintiff and defendant No. 1 does mention about the license fee agreed between the parties and in pursurance of the said agreed amount, admittedly, the plaintiff has made payment to the extent of 60 per cent of the agreeamount to defendant No. 1. Therefore, it is urged before me that these facts clearly indicate that there was concluded contract. But mere payment of part of license fee was not sufficient because the defendant No. l had already entered into a contract with Grand Slam Sports and plaintiff was lobe a co-producer alongwith Grand Slam and for that purpose the detils were to be worked out as per term No. 7 of the MOD and as long as those details were not worked out there could not he a eon- eluded contract. What was agreed between the par lies was the quantum of license fee. But if the MOD is read as a whole then it would he quite clear that the parlies did contemplate that the final licence agreement was to take place between the parlies. Plaintiff had made it quite clear in its letter dated 14. 5. 1994 that the detailed agreemant was to be executed and the defendant No. 1 was lime and again insisting on the plaintiff to execute the licence agreement. Therefore, merely because there is payment of 60 percent of the license fee it is not possible to hold that there was concluded contract between plaintiff and defendant No. 1. 5. 1994 that the detailed agreemant was to be executed and the defendant No. 1 was lime and again insisting on the plaintiff to execute the licence agreement. Therefore, merely because there is payment of 60 percent of the license fee it is not possible to hold that there was concluded contract between plaintiff and defendant No. 1. ( 27 ) ADMITTEDLY, defendant No. 1 had sent the letter dated 1. 11. 1995 and has terminated the MOU with the plaintiff. Even assuming what the plaintiff is claiming to be correct that there was an agreement of sub-license in favour of the plaintiff by defendant No. 1 for broadcasting and telecasting the matches to be played in India, the further question to be considered is as to whether the defendant No. 1 was justified in terminating the contract between the parties. The defendant No. 1 has terminated the said agreement mainly on two grounds: viz. (1) that the plaintiff was changing its stand and wanted a license contrary to the agreed terms as per the MOD; and (2) non-payment of the third instalment in time. ( 28 ) I would first deal with the contention raised on behall of defendant No. 1 that plaintiff wanted to divert from the agreed terms between the parties and wanted a heller and different contract in ils favour. ( 29 ) I have already quoted above certain terms of the MOU. If the said MOU is read as a whole then it would be quite clear that defendant No. 3 PI LOOM is the owner of the event whereas Worldtel was holding the world-wide broadcasting and telecasting rights of Wills World Cup Matches 1996. Defendant No. 1 had agreed to give exclusive live broadcasting and telecasting rights within India for the matches to he played in India to Doordarshan. The revised draft sent by the plaintiff clearly shows that plaintiff wanted to become the exclusive owner of the part of the event, viz. the matches to be played in India. That would he quite clear from the terms mentioned in lhe revised draft sent by the plaintiff: G. Term: This agreement shall be valid for a period of six months from the commencement of lhe Event. However, allrights to signals generuted as host broadcasts from India by Doordarshan shall vest in Doordarshan in perpetuity. J. FORM in which programs will be delivered:. . . However, allrights to signals generuted as host broadcasts from India by Doordarshan shall vest in Doordarshan in perpetuity. J. FORM in which programs will be delivered:. . . . . . . . . . . . Matches nor covered by Worldtel shall be covered by Doordarshan at ils absolute discretion and which shall include live broadcast thereof. K. PRODUCTION:. . . . . . . . . . . (3 ). . . . . . . . . . . DD will supply necessary production personnel against payment by M/s. Worldtel and such expenses will he defrayed at the same rate as applicable to overseas crew. O. MERCHANDISING announcements:. . . . . . . . Doordarshan shall be entitled to a 50% share of the profits, from the sales of Event related merchandise generated via telemarketing hereunder on Doordarshan s broadcast of the programs. P. INSURANCE:. . . . . . The difference between insurance amount and balance costs shall be made in cash by Worldtel. IN order to Find out whether the payment of third instalment before 15. 10. 1995 (27. 10. 1995) was essence of the contract we have to see Term No. 9 of the Memoraildum of Understanding. Term No. 9 of the MOU reads as under: ( 9 ) THE rights fee payable to Worldtel with respect to Doordarshan s exclusive live television and radio rights will be US $4,750,000 (net of. any taxes), payable 30% upon signature of agreement, 30% on January 15, 1995, 30% on October 1995 and 10% on January 15, 1996. It is understood that the rights granted hereunder are subject to the timely payment of the license fee instalments, which timely payment is of the essence of this agreement. 30. No doubt in the above wording of the said term No. 9 as regards the second instalment no date of the month of October 1995 is mentioned but if the payment of earlier two instalments and subsequent last instalment, as mentioned in the said term No. 9 are taken into consderation then it would be quite clear that the third instalment was payable on or before 15th October, 1995. Defendant No. 1 had sent a letter on 8. 10. 1995 in which defendant No. l had made it quite clear that the invoice for the payment of 15. 10. Defendant No. 1 had sent a letter on 8. 10. 1995 in which defendant No. l had made it quite clear that the invoice for the payment of 15. 10. 1995 was transmitted and its payment was expected by defendant No. 1. The above quoted terms of Clause No. 9 make it uite clear that the payment of instalment in time was the essential term of agreement between. the parties. Apart from the letter sent by defendant No. l on 8. 10. 1995, admittedly, the defendant No. 1 had sent the agreement for the signature of the plaintiff, as contemplated by Clause No. 12 of the MOU and in the said agreement it has been mentioned regarding payment of the three instalments as under: SICK Industrial Companies (Special Provision) Act, 1985 1. PAYMENT SCHEDULE/terms: 30% upon execution of Agreement (PREVIOUSLY paid); 30% on January 15, 1995 (PREVIOUSLY paid); 30% on October 15, 1995; and 10% on January 15, 1996. ( 31 ) ADMITTEDLY, plaintiff had sent revised draft and that revised draft also mentioned the payment and schedule terms in exactly the above wording. It is also very pertinent to note that after the defendant No. l had sent the letter of 8. 10. 1995 the plaintiff had not informed defendant No. l that his claim for payment before 15. 10. 1995 was incorrect. On the contrary from the defendant s letter dated 20. 10. 1995 the plaintiff was given extension of seven days and in the said letter it has been mentioned as under: "under paragraph 9 of the Doordarshan Worldtel MOU, timely payment of the licensee fee instalments is of the essence of the agreement. IN a spirit of cooperation, Worldtel is prepared to allow Doordarshan an additional 7 days in which to make the payment. However, if the payment is not made by the close of business, New York time, on Friday, October 27, 1995 Worldtel willbe obliged to consider Doordarshan to be in material breach of our agreement, in which case Worldtel will be entitled to all legal remedies, including the right to terminate the agreement. I sincerely hope the payment will be made before the above date, so we can resume our discussions regarding a License Agreement and our cooperation in the production of Wills World Cup matches taking place in India. " ( 32 ) ON the said letter dated 8. 10. I sincerely hope the payment will be made before the above date, so we can resume our discussions regarding a License Agreement and our cooperation in the production of Wills World Cup matches taking place in India. " ( 32 ) ON the said letter dated 8. 10. 1995 the endorsement made by the officer of the plaintiff is as under: . . "i understand sanction has been released. Please chase with DDV Delhi and ensure that the amount is released positively by 14th Oct. 15th being a holiday. " ( 33 ) THUS, from the above discussed material and evidence it is clear that as per the understanding between the parties the payment of instalments in time was the essence of contract between the parties. Learned counsel for the plaintiff has cited before me the cases of United Scientific Vs. Bumley Council [1978 AC 904]; Hongkong Fir Shipping Co. Ltd. Vs. Kawasaki Kisen Kish Ltd. [1962 (2) QB 26]; State Trading Corporation of India Ltd. Vs. M. Golodetz Ltd. (now Transcontinental Affiliates Ltd. 11989 Vol. II Lloyds Law Reports 277]. It is not necessary to discuss in detail the facts and principles laid down in these case. In all these cases it has been held that it is competent for the parties, if they think fit, to declare in terms time as the essence of the contract and if they did not declare so then it is necessary for courts to construe the instrument to see whether they intended to do so. It is also observed in these cases that in commercial contracts time becomes the essence of the contract. He has also cited before me the cases of Jamshed Khodram Irani Vs. Burjorji Dhunjibhai [43 Indian Appeals " 26]. If the facts of the said case are considered then it would be quite clear that the said case is not applicable to the facts before me. It is a case of contract for sale of land and it has been held that time was not of essence in the contract in view of the facts of the case. I have already quoted above the terms of payment, as understood by both the parties and also their subsequent conduct which clearly shows that parties did intend and understood that timely payment of the instalments as per the MOU was the essence of the contract. I have already quoted above the terms of payment, as understood by both the parties and also their subsequent conduct which clearly shows that parties did intend and understood that timely payment of the instalments as per the MOU was the essence of the contract. ( 34 ) IT must be mentioned here that defendant No. I has not terminated the contract merely on the ground of non-payment of the third instalment. The contract has been terminated on account of plaintiff not executing the Lease Agreement and not paying the third instalment. The defendant No. 1 had shown its favour to the plaintiff. Defen- dant No. 1 had agreed to receive instead of US $50,00,000 only US $47,50,000 as the license fee. Defendant No. 1 had also shown leniency by extending the time for payment of third instalment till 27. 10. 1995 though was to be paid by 15. 10. 1995. It is really astonishing that in spile of the extention of lime for payment of the third instulment the officers of the plaintiff did not act diligently in making the payment even within the extended time at proper place. It is the claim of the plaintiff that they had obtained the bank draft. From the material on record that claim of the plaintiff could not be doubted. But the conduct of the plaintiff in sending the said draft by courier to London and not handing over the same to any officer of the defendant No. 1 is questionable. If the terms of MOU between the parlies is seen then it would be clear that the address of defendant No. l is at Newyork, USA. Defendant No. l had sent the letter on 8. 10. 1995 from their Newyork address and in the said letter they had further mentioned that in case the amount was to be paid by wire then the amount was to be sent to their banker in Newyork, named in the said letter. By letter dated 20. 10. 1995 defendant. No. 1 had given extension of time for payment till 27. 10. 1995 and in that letter also the payment was sought at Newyork address. In these circumstances, the conduct of the officers of the plaintiff in sending the bank draft to London is not justified and negligent. By letter dated 20. 10. 1995 defendant. No. 1 had given extension of time for payment till 27. 10. 1995 and in that letter also the payment was sought at Newyork address. In these circumstances, the conduct of the officers of the plaintiff in sending the bank draft to London is not justified and negligent. Learned counsel for the plaintiff vehemently urged before me that the payment of earlier two instalments was accepted by defendant No. 1 at London and, therefore, the conduct of the plaintiff in sending the draft to London could be justified. But the documents on record clearly show that plaintiff had approached defendant No. 1 and had sought consent of defendant No. l for sending the money lo London and plaintiff was permitted to send the money either at London or at Newyork as at that time the President of defendant No. l was residing at London. Thus, plaintiff was aware that payment was to be made at Newyork and, therefore, on a lier occasions the plaintif had sought the consent of defendant No. 1 for making the payment at London. That would be quite clear from the endorsement on the letter dated 11. 1. 1995, addressed to the plaintiff by President of defendant No. 1 which bears the following endorsement: "spoken to me from London. We may send this to London address today. " ( 35 ) IT is surprising that till 3. 1. 1996 the said draft had not reached defendant No. 1. ( 36 ) THEREFORE, in these circumstances, prima facie, it is not possible to hold that defendant No. 1 was not justified in terminating the agreed terms by his letter dated 1. 11. 1995. ( 37 ) THE crux of the matter is, even assuming that the case of the plaintiff that there , was a concluded contract is correct, as to whether a suit for specific performance after the termination of the said contract by letter dated 1. 11. 1995 could be said to he maintainable. ( 38 ) SECTION 14 (1) of the Specific Relief Acl, 1963 reads as under:- 14. CONTRACTS not specifically enforceable. 11. 1995 could be said to he maintainable. ( 38 ) SECTION 14 (1) of the Specific Relief Acl, 1963 reads as under:- 14. CONTRACTS not specifically enforceable. " (1) The following contracts cannot be specifically enforced, namely-- (A) a contract for the non-performance of which compenstion in moneyh is an adequate relief; (B) a contract which runs into such minute or numerous details or which is so dependant on the personal qualifications or volition of the parlies, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (C) a contract which is in its nature determinable; (D) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. ( 39 ) IN my opinion the contract in question is falling in both sub-clause (a) and subclause (b) of Section 1. 4 (1) of the Specific Relief Act, 1963. the transaction in question is in the nature of a commercial transaction. Therefore, for the breach of the said transaction compensation in terms of money is an adequate relief. Learned counsel for the plaintiff urged before me that after the MOU the plaintiff has spent certain amount on training of persons and they were also having discussions with Grand Slam Sports. It is true that from the documents produced by the plaintiff that plaintiff has spent about Rs. 60,000. 00 to 70,000. 00 by arranging some expert cricketers to give lectures to their officers. But at the same time plaintiff was not at all justified in not concluding the license agreement with defendant No. 1. At the cost of repetition, it must be said that though defendant No. 1 had sent its reply to the revised draft sent by the plaintiff by their letter dated 22. 9. 1995 and though defendant No. 1 was insisting to conclude the license agreement the plaintiff had not taken any steps in this respect. It must be remembered that the granting of specific relief is an equitable relief and no order lo gel the equitable relief the plaintiff s conduct must justify equitable relief. 9. 1995 and though defendant No. 1 was insisting to conclude the license agreement the plaintiff had not taken any steps in this respect. It must be remembered that the granting of specific relief is an equitable relief and no order lo gel the equitable relief the plaintiff s conduct must justify equitable relief. There is absolutely no explanation as to why no action was taken on the said letter sent by defendant No. 1 It is also very pertinent to note that when defendant No. 1 had sent its license agreement the plaintiff hadnot informed the defendant No. 1 as to which terms of their document were contrary to the MOD. No doubl some letters do show that some officers of the plaintiff were cooperating with Grand Slam Sports but the letters of the Grand Slam Sports on record clearly show that plaintiff was not taking steps for purchasing the equipment suggested by Grand Slam Sports for telecasting lhe event in question. It was mentioned by Grand Slam Sports that the purchasing of those equipment was very essential and the prices of the equipment were going up. It seems that plaintiffs policy was the policy of dog in manger. They were not taking steps to conclude the contract in question and were not acting to have the concluded transaction. But merely because they have performed certain acts would not entitle them to have specific performance. ( 40 ) AT the cost of repetition it must be said that after receiving lhe letter from defendant No. 2 Star TV dated 13. 10. 1995 the plaintiff did not immediately inform Star TV that there was a concluded contract between plaintiff and defendant No. 1. Plaintiff received the termination letter dated 1. 1. 1995 by fax but it is very surprising that no immediate reply was sent to the said Idler informing that there action in terminating the contract in their favour was not justified and that they should not enter into con- tract with somebody else and that they were ready and willing to perform their part of the contract. Plaintiff has also not rushed to the court immediately after receiving the said letter. Plaintiff has also not rushed to the court immediately after receiving the said letter. They have come to the court only after the transaction regarding the contract in question was Finalised between defendant No. 1 and defendant No. 2 Therfore, the above conduct of the plaintiff also does not justify me to grant any specific performance of the agreement in question. ( 41 ) LEARNED counsel for the plaintiff has cited before me the case of Suresh Jindal vs. Rizsoli Comere Dlla Sera Prodzioni TV [ air 1991 SC 2092 ]. In that case appellant Suresh Jindal, an Indian Film producer had rendered some services to help the defendant obtain the permission of the Government of India to shoot the Film in India. Though the appellant had sued for damages and injunction, he had made it quite clear before the Apex Court that he was not much interested in monetary aspect of the deal he claimed to have entered into with the respondent, the gain by way of reputation as well as goodwill which the appellant would secure if his services were acknowledged in the title shots of the film was not one which could be adequately expressed in terms of money and, therefore, the Supreme Court had granted injunction to the effect that in case the film was exhibited either on Television or any other medium in India it should not be so exhibited by the respondent or their agents unless it carried in its title shots an acknowledgement of the services rendered by the appellant to the producers in some appropriate language. In my opinion, the said case is not at all applicable to the facts before me. ( 42 ) COUNSEL for the plaintiff has also cited before me the case of Niranjan Shankar Golikari Vs. Century Spinning and Manufacturing Co. Ltd. [ air 1967 SC 1098 ] in support of his contention for specific performance of the agreement. But the facts of the said case clearly show that the case is not applicable to the facts before me. In that case the appellant was sent by the respondent abroad for higher training and a bond was obtained from him for serving for a particular period and not to work during the said period with anybody else. But the facts of the said case clearly show that the case is not applicable to the facts before me. In that case the appellant was sent by the respondent abroad for higher training and a bond was obtained from him for serving for a particular period and not to work during the said period with anybody else. But the appellant had obtained the services of the respondent and had tried to join another entrepreneur and he was injuncted from doing so till the stipulated period. Therefore, that order was passed in view of specific terms of agreement between the parties. It is urged before me by learned counsel for the plaintiff that as per the mutual terms of agreement between the parties the plaintiff was given the exclusive right for telecasting the matches to be played in India. There is no dispute that negotiations had taken place and defendant No. 1 had agreed to grant to the plaintiff exclusive live broadcasting and telecsting rights. within India but that was an agreement subject to the plaintiff finalising the license agreement and making payment within the stipulated period. Merely because the word exclusive is used in term No. 8 of the MOU, it could not be said that there was negative covenant agreed by defendant No. 1. ( 43 ) THE material on record further shows that defendant No. 3, Pilcom, is the mast of the event and Pilcom wanted the defendant No. l and plaintiff to finalise their license agreement as early as possible and the ultimate rights of the event were with defendant No. 3 and defendant No. 3 was not agreeable to give to the plaintiff the exelusive ownership rights which the plaintiff wants to claim as per the revised draft of agreement submitted by the plaintiff to defendant No. 1. It must be remembered that defendant No. Sis not a party to the MOU executed between plaintiff and defendant No. 1 on 14. 5. 1995 and they had never given their consent to the said MOU. It must be remembered that defendant No. Sis not a party to the MOU executed between plaintiff and defendant No. 1 on 14. 5. 1995 and they had never given their consent to the said MOU. If the defendant No. 3 is not agreeable to give to the plaintiff the exclusive rights of broadcasting and telecasting the matches to be played in India and when defendant No. 3 is not a party to the agreement executed between plaintiff and defendant No. 1, the Court cannot grant specific performance by ordering exclusive rights in favour of the plaintiff, prejudicial to the rights of defendant No. 3, who is not a party to the agreement between plaintiff and defendant No. 1. ( 44 ) DEFENDANT No. l after having terminated the agreement with the plaintiff has entered into a contract with defendant No. 2 and defendant No. 2 has further entered into contracts with others. It is submitted before me by learned counsel for the plaintiff that defendant No. 2 was aware of the contract between plaintiff and defendant No. l and, therefore, the question of equities could not be considered. But if the letter sent by defendant No. 2 on 13. 10. 1995, on which counsel for the plaintiff is relying, is read then it would be quite clear that defendant No. 2 nowhere admits that there was a concluded contract between plaintiff and defendant No. 1. On the contrary defendant No. 2 had informed the plaintiff that as the contract between plaintiff and defendant No. 1 was not Finalised and as defendant No. l and defendant No. 3 Pilcom were approaching them, they had made an offer to the plaintiff to have a joint venture. Plaintiff did not inform defendant No. 2 after receiving this letter that the transaction between plaintiff and defendant No. l was Finalised and the contract was concluded and that they should refrain from entering into any contract with defendant No. 1. As a matter of fact, plaintiff did not send any reply to this letter. Thus, by its conduct plaintiff shows that what was understood by defendant No. 2 that the transaction between plaintiff and defendant No. 1 was not Finalised was correct. Therefore, in these circumstances, defendant No. 2 s equilies could not be ignored. ( 45 ) THUS, the interest of third parlies, vix. Thus, by its conduct plaintiff shows that what was understood by defendant No. 2 that the transaction between plaintiff and defendant No. 1 was not Finalised was correct. Therefore, in these circumstances, defendant No. 2 s equilies could not be ignored. ( 45 ) THUS, the interest of third parlies, vix. defndant No. 2, Star TV aswell as defendant No. 3, Pilcom, is involved in the transaction in question and the specific performance of the transaction in question which would be prejudicial to both defendant No. 2 and defendant No. 3 could not be granted. ( 46 ) THUS, I hold that this is not a Fit case to grant the discretionary relief of specific performance and, consequently, the relief of ad-interim injunction could not be granted in favour of the plaintiff. Therefore, plaintiffs application for ad-interim injunction deserves to be rejected. ( 47 ) BEFORE passing the Final order it is pertinent to observe that the conduct of the officers of the plaintiff in the whole transaction in question is not above board. There is absolutely no explanation as to why the agreement sent by defendant No. 1 was not acceptable to the plaintiff; why the plaintiff did not inform the defendant No. l after getting their reply to the revised draft; why the license agreement could not he Finalised; why the amount of the third instalment payable on 15. 10. 1995 was not paid in lime; why the amount was not sent to the address of defendant No. 1 and why it has not reached the defendant No. 1 even till 3. 1. 1996; why the letter received from defendant No. 2 dated 13. 10. 1995 was not replied and was kept pending. There is also no explanation why no immediate reply was sent to the termination letter dated 1. 11. 1995 and why there was delay in Filing the suit, which is presented on 15. 11. 1995 after the contract between defendant No. 1 and defendant No. 2 was concluded on 3. 11. 1995. ( 48 ) SIMILARLY, when defendant No. 1 has terminated the agreement with the plaintiff the defendant No. 1 was not justified in retaining the amount of two instalments. No doubt in their letter dated 1. 11. 11. 1995 after the contract between defendant No. 1 and defendant No. 2 was concluded on 3. 11. 1995. ( 48 ) SIMILARLY, when defendant No. 1 has terminated the agreement with the plaintiff the defendant No. 1 was not justified in retaining the amount of two instalments. No doubt in their letter dated 1. 11. 1995 they have mentioned that they were also entitled to claim damages against the plaintiff on account of plaintiff not performing its part in completing the contract, they ought to have returned the money of the plaintiff at least after deducting their alleged claim of damages. During the course of arguments learned counsel for defendant No. l had offered to deposit in Court the amount of the First two instalments. No doubt the plaintiff had declined to accept the same. Therefore, in these circumstances, if I order defendant No. 1 to return the amount of the First two instalments in Court in U. S. Dollars then it could not be said that the said order of mine is unjust or improper in the circumstances of the case. Under Order XXXIX Rule 1 as well as under Section 151 of the Code of Civil Procedure the Court has got powers to make such an order as the Court thinks Fit till the disposal of the suit. ( 49 ) I, therefore, pass the following order: (I) IA. 11690/95 is dismissed. Costs of this application to be the costs in the cause. (II) Defendant No. 1 is directed to deposit in Court the amount of the First two instalments received by it from the plaintiff in US Dollars within three weeks from today.