M. S. A. Siddiqui, J. ( 1 ) BY this petition under Section 9 of the Arbitration and Conciliation Act, 1996, petitioner seeks the following interim reliefs against the respondents:- A) pass ad-interim injunction against respondents from appointing and/or awarding and/or contracling and/or assigning and/or allowing any other developer and/or agent and/or dealer to develop and/or run PIZZA HUT outlets in Mumbai and Navi Mumbai other than the petitioner and/or; B) pass an ad-interim injunction in favour of petitioner and against respondents and/or its officers, employees, and/or agents from preventing and or interfering and/or in any manner obstructing the Petitioner from running the Pizza Hut Outlets at Hyde Park and Gulmohar Road (Juhu) and/or; C) Pass ad-interim injunction against Respondents from authorizing and/or assigning the trademarks or trade name rights to any other person and for the use in the territory of Mumbai and Navi Mumbai; D) Pass ad-interim order directing Respondents to deposit the damages with this Hon ble Court or in the alternative to furnish security for the said amounts recoverable and the damages by furnishing Bank Guarantees. " ( 2 ) THE brief facts giving rise to this petition are: The respondent No. 1 and its affiliated companies originated and own a distinctive restaurant operation system (the "pizza Hut System"), which they license directly or through affiliates through out the world. Respondent No. l has the exclusive right within India to use and to sublicense the use of the Pizza Hut System. On 27. 10. 1997, three agreements, namely development agreement, Technology Licence agreement and trademark franchise agreement were executed by the petitioner and the respondent No. l, whereunder the respondent No. l granted to the petitioner non-exclusive right to operate 25 PIZZA HUT outlets for the territory of Mumbal and Navi Mumbai. The terms and conditions of the licence were specified in the said agreements. The aforesaid agreements provided for termination of the contract by the respondent No. l on the happening of any of certain specified events. These agreements also provided for adjudication of any dispute or difference of any nature by arbitration. At the time of execution of the agreements, petitioner paid a sum of Rs. 18 lacs to the respondent No. l by way of advance. After execution of the agreements, petitioner selected three sites for operating PIZZA HUT outlets. By the letter dated 23. 3. At the time of execution of the agreements, petitioner paid a sum of Rs. 18 lacs to the respondent No. l by way of advance. After execution of the agreements, petitioner selected three sites for operating PIZZA HUT outlets. By the letter dated 23. 3. 98, the respondent No. l communicated to the petitioner about the grant of exclusive right to use Pizza Hut System for the territory of Mumbai and Navi Mumbai. On 26. 8. 1998, the respondent No. l finally approved sites and plans of the buildings proposed to be constructed for operating these outlets. However, the schedule for operating the said outlets by 31. 1. 1998 was not adhered to by the parties and the time was extended upto mid 1998. Thereafter, the petitioner started development of three outlets at Hyder Park, Gulmohar Road (Juhu) and Worli in accordance with the development agreement. ( 3 ) IT is alleged that the petitioner also paid to the respondent No. l a sum of Rs. 38 lacs in terms of the agreements. While the outlets at Gulmohar Road and Hyder Park were to be ready to go into operation in January 1999, the petitioner received a notice dated 14. 12. 1998 terminating the Contract on the grounds specified therein. According to the petitioner, the alleged termination of the contract is illegal. It is also alleged that the contract cannot be terminated with regard to the outlets at Hyder Park and Gulmohar as these outlets were to be ready to go into operation in January 1999 and so they do not fall within the termination clause of the main contract. It is further alleged that since the petitioner was granted exclusive right to use Pizza Hut System in Mumbai and Navi Mumbai, the respondents cannot repudiate the contract and grant the said licence to a third party. ( 4 ) RESPONDENT No. l resisted the petition contending that the present petition is not maintainable inasmuch as respondent No. 2, namely; M/s. PIZZA HUT Inc. was admittedly not a party to the arbitration agreement pursuant to which the present proceedings have been initiated. ( 4 ) RESPONDENT No. l resisted the petition contending that the present petition is not maintainable inasmuch as respondent No. 2, namely; M/s. PIZZA HUT Inc. was admittedly not a party to the arbitration agreement pursuant to which the present proceedings have been initiated. It is alleged that as per agreements, the petitioner was granted non-exclusive right to develop and operate Pizza Hut outlets in the territory of Mumbai and Navi Mumbai and the contract was terminated in terms of the agreement due to petitioner s failure to develop and operate the outlets within the time stipulated therein. Further, the petitioner committed breaches of the contract inasmuch as certain cheques issued by the petitioner bounced when presented for encashment. Respondent No. l also discovered that the petitioner s financial position was not sound and further the managing director of the petitioner company, namely, Dr. Viral Shah was also involved in a criminal case. It is also alleged that the development agreement dated 27. 10. 1998 contemplates the execution of a further contract of trade mark franchisebetween the petitioner and the respondent No. 2, namely, PIZZA HUT Inc. In this view of the matter, the petitioner is not entitled to the interim relief inasmuch as neither the outlet agreement nor the trade mark franchise agreement has been executed between the petitioner and the respondent No. 2, who is the owner of the trade mark pizza HUT . As per the development agreement, no outlet can be operated for trade prior to the execution of the trade mark license agreement between the developer (petitioner) and the respondent No. 2. It is further alleged that the development agreement 27. 10. 97 falls in the category of contracts specific performance of which is barred under Section 14 of the Specific Relief Act and so the petitioner is not entitled to the grant of interim injunction. It is further alleged that the development agreement 27. 10. 97 falls in the category of contracts specific performance of which is barred under Section 14 of the Specific Relief Act and so the petitioner is not entitled to the grant of interim injunction. ( 5 ) THE principles to grant an injunction as an interim measure was the subject of discussion in several judicial pronouncements but the consensus opinion is that the grant of an injunction is a matter of discretion of the court and while exercising the discretion the Court applies the following tests:- A) Whether the plaintiff has a prima facie case; B) Whether the balance of convenience is in favour of the plaintiff; C) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. ( 6 ) NEEDLESS to add that the Court grants such interim relief according to the legal principles ex dibito justitiae. In this context, I may profitably refer to the decision rendered in the case of M/s. Gujrat Bottling Co. Ltd. Vs. Coca Cola Company AIR 1995 SC 2372 wherein the Apex Court laid down the following principles:- "the decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the-risk of injustice to the plaintiff during the period before that uncertainly could be resolved. The object of the inlerlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such prolection has, however, to be weighed against the corresponding need to the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weight one need against another and determine where the balance of convenience lies. (See: Dander Ltd. Vs. Antox India P. Ltd. 1990 (Supp) SCC 727 at pp 731-32. ). The Court must weight one need against another and determine where the balance of convenience lies. (See: Dander Ltd. Vs. Antox India P. Ltd. 1990 (Supp) SCC 727 at pp 731-32. ). ( 7 ) BEARING in mind the said principles, I will now proceed to consider the question as to whether the petitioner has made out a prima facie case for the grant of temporary injunction. The learned Senior counsel Mr. Singhvi appearing for the petitioner contended that since the petitioner has not committed any breach of the contract, its termination by the respondent No. 1 was not valid and further the dispules between the parties with respect to the agreements dated 27. 10. 1997 have been referred to the arbitral tribunal, the termination of the agreement by the respondent cannot be treated as finality and, therefore, the petitioner is entitled to interim protection till the matter is decided by the arbitral Tribunal. According to him, the respondent No. l was not legally entitled to exercise the right of termination of the contract with respect to outlets developed by the petitioner at Hyder Park and Juhu as they were substantially completed and were to be ready to go into operation in January, 1999. Reliance was placed on Clauses 9. 1 and 6. 5 of the development agreement dated 27. 10. 97 in support of the said submission. On the other hand, it is contended by the learned Senior counsel Mr. Arun Jaitley that the petitioner having ilself acted in violation of the terms of the development agreement dated 27. 10. 97 and having breached the contract, cannot legally claim-any interim protection from the Court particularly as the petitioner itself is primarily responsible for having brought about the state of things complained by it. He also contended that the agreement falls in the category of contracts specific performance of which is barred by Section 14 of the Specific Relief Act. He further contended that the contract has been terminated by the respondent No. l and if the interim relief sought by the petitioner is granted it would have the effect of practically granting decree for specific performance of the contra, which is impermissible in law. He further contended that the contract has been terminated by the respondent No. l and if the interim relief sought by the petitioner is granted it would have the effect of practically granting decree for specific performance of the contra, which is impermissible in law. Lastly, he contended that the petitioner can be adequately compensated for the loss caused to it by award of damages in the event of it succeeding in the arbitral proceedings and so the petitioner is not entitled to the grant of temporary injunction. ( 8 ) ADMITTEDLY, the disputes between the parties with respect to the contract in question have been referred to the Arbitral Tribunal. Learned Senior Counsel for the petitioner has highlighted certain facts to show that termination of the contract was illegal whereas learned Senior Counsel for respondent No. l has attempted to justify repudiation of the contract by the respondent No. l. The question whether the petitioner was responsible for the breach of the contract or not is to be decided by the arbitral Tribunal. I, do not, propose to go into the same and leave it to the Arbitral Tribunal to deal with it. ( 9 ) IT is significant to mention that the agreements dated 27. 10. 1997 set out details of procedural, functional and operational issues, which involve prolonged watching over and supervision for their due performance within the time stipulated therein. Learned senior counsel for the respondent No. I contended that a court cannot stop its normal functions for the purpose of giving effect to the terms of a contract which cannot conveniently be supervised or be enforced by the court itself. He also contended that the arrangement entered into between the parties is a commercial contract, a breach of which can always be compensated in money. He further contended that Clause 9 of the development agreement provided for termination of the contract by the respondent No. l on the happening of any of certain specified events. According to him, a contract which is in its nature determinable cannot be specifically enforced and if a contract cannot be specifically enforced because it is covered by Section 14 of the Specific Relief Act, no injunction can be granted to prevent breach of such contract. According to him, a contract which is in its nature determinable cannot be specifically enforced and if a contract cannot be specifically enforced because it is covered by Section 14 of the Specific Relief Act, no injunction can be granted to prevent breach of such contract. On thecontrary, learned senior counsel for the petitioner submitted that the agreements executed by the parties do not fall within the mischief of Section 14 of the Specific Relief Act inasmuch as Clause 13. 11. 1. of the development agreement empowers arbitrators to order specific performance of the contract. It is significant to mention that admittedly the contract was terminated by respondent No. 1 vide notice dated 14. 12. 1998. The dispute between the parties has been referred to the arbitral Tribunal in accordance with the arbitration agreement. The petitioner can be adequately compensated for the loss caused to by award of damages in the event of it succeeding in the arbitral proceedings. Moreover, if the interim reliefs sought by the petitioner are granted it would have the effect of practically granting decree for specific performance of the Contract. ( 10 ) NEXT it was contended by Mr. Singhvi that respondent No. l s letter dated 23. 3. 98 constitutes a contract conferring exclusive right on the petitioner to operate Pizza Hut outlets within the territory of Mumbai and Navi Mumbai and thus impliedly contains a negative covenant refraining the respondents from granting trade mark license namely Pizza Hut to a third party for the said designated territory. The question for consideration is whether there was a contract between the petitioner and respondent No. l containing a negative covenant? If so, whether the alleged negative covenant can be enforced by grant of an ad interim injunction disregarding the balance of convenience, irreparable loss or comparative hardship. ( 11 ) AT the outset, I must make it clear that Section 42 of Specific Relief Act does not say that every affirmative contract includes by necessary implication a negative agreement to refrain from doing certain things. It is, therefore, a question of interpretation in each case whether a particular contract can be said to have a negative covenant express or implied contained within it. The object of interfering a contract is to ascertain the intention of the contracting parties. It is, therefore, a question of interpretation in each case whether a particular contract can be said to have a negative covenant express or implied contained within it. The object of interfering a contract is to ascertain the intention of the contracting parties. Inevitably, the issue here has to run around the terms of the contract, and therefore, the relevant provisions of the agreements dated 27. 10. 97 may be read at the very outset. ( 12 ) THE technology license agreement dated 27. 10. 97 gives "background facts" as under:- "licensor and/or its Affiliated Companies have developed a unique and valuable System Pizza hut System for the preparation, marketing and sale of certain quality food products undervarious trade marks. Service marks and trade names owned by them. THE System is a comprehensive quick service restaurant system for the retailing of a limited menu of uniform and quality food products. Emphasising prompt and courteous service in a clean and wholesome atmosphere which is intended to be particularly attractive to families. The foundation and essence of the System is the adherence by licensees to standards and policies providing for the uniform operation of all restaurants within the System including but not limited to serving designated food and beverage products; the use of only prescribed. equipment and building layout and designs; and strict adherence to designated food and beverage specifications and to prescribed standards of quality, service and cleanliness in restaurant operations. Compliance by licensees with the foregoing standards and policies in conjunction with the trademarks, service marks and trade names provides the basis for the valuable goodwill and wide acceptance of the System. Moreover, the establishment and maintenance of a close personal working relationship with licensee in the conduct of its restaurant business, its accountability for performance of the obligations contained in this Agreement, and its adherence to the tenets of the System constitute the essence of the license provided for herein. . LICENSOR and Licensee have entered into a development agreement dated 27th October, 1997 ( the Development Agreement) pursuant to which and subject to the terms whereof, Licensor granted to Licensee certain non-exclusive rights to establish Outlets in the Territory. TO allow Licensee to use the Marks in the operation of the Outlets developed thereunder a Trademark License Agreement dated the date hereof has been entered into between Licensee and Pizza Jut Inc. TO allow Licensee to use the Marks in the operation of the Outlets developed thereunder a Trademark License Agreement dated the date hereof has been entered into between Licensee and Pizza Jut Inc. ( "phi") LICENSEE desires the use of the System to operate the outlets developed under the development agreement and licensor is entitled to grant to third parties the right to use the system on the terms and conditions of this agreement. " ( 13 ) CLAUSES 1. 1 and 1. 4 of the said agreement are as under:- 1. 1 Licensor grants to Licensee the non-exclusive right to use the System for the Term solely in connection with the conduct of the Business at the Outlets developed by Licensee in accordance with the Development Agreement and subject to the terms and conditions of this Agreement. 1. 4 No exclusive territory, protection or other right in the contiguous space, area or market of the Outlets is expressly or impliedly granted to Licensee. Licensor has the right to use, and to grant to other parties the right to use, the Marks and the System or- any other marks, names or systems in connection with the any product or service, including the Approved Products, at any location other than the Outlets through any outlets, food service concept or distribution channel. Licenseeacknowledges that the Licensor and its affiliated companies operate systems for the Sales of food products and services which are competitive with the System and may compete directly with the Business. " ( 14 ) SIMILARLY Clause 1. 2 of the Development agreement provides that rights granted to the petitioner are not exclusive. The said clause is as under:- filiated Companies (for development and operation by itself, its Affiliated companies or through other developer) all other development rights in the Territory. " ( 15 ) THUS both the aforesaid agreements make it clear that the petitioner was not granted exclusive rights to operate Pizza Hut Restaurants for the territory of Mumbai and Navi Mumbai. At this juncture, learned Senior Counsel Mr. Singhvi has invited my attention to the letter dated 23. 3. 1998 written by the respondent No. 1 in support of his contention that exclusive license was granted to the petitioner to operate restaurant outlets for the aforesaid territory. The letter dated 23. 3. At this juncture, learned Senior Counsel Mr. Singhvi has invited my attention to the letter dated 23. 3. 1998 written by the respondent No. 1 in support of his contention that exclusive license was granted to the petitioner to operate restaurant outlets for the aforesaid territory. The letter dated 23. 3. 1998 is as under:- "march 23,1998 shubhmangal Merchantile (P) Ltd. 401, Kshmalaya, 37 New Marine Lines, mumbai - 400 020. Dear Sir, This is to certify that Pepsico. Restaurants International (1) Pvt. Ltd. was a 100% subsidiary of Pepsico Restaurants Inc, USA. Subsequent to a global business restructuring, the restaurant business of Pepsico Inc, was hived off into a separate company called Tricon Global Restaurants Inc. Effective October 6, 1997, the name of Pepsico Restaurants International (1) Pvt. Ltd. has been changed to Tricon Restaurants (1) Pvt. Ltd. , which is an ultimate subsidiary of Tricon Global Restaurants Inc. Tricon Restaurants (1) Pvt. Ltd had granted Shubhmangal Merchantile (P) Ltd. all rights and obligations under the development, trademark and franchise agreement for Pizza Hut, exclusively for the territory of Mumbai and Navi Mumbai. ACCORDINGLY, Shubhmangal Merchantile (P) Ltd. is authorised to open a chain of stores selling products under the brand name "pizza Hut" in Mumbai and Navi Mumbai. Thanking you, yours faithfully,- jayasheel Bhansali director - Finance and Planning. " ( 16 ) ACCORDING to Mr. Singhvi, the said letter has to be construed as a written contract between the parties superseding Clauses 1. 1 and 1. 4 of the technology license agreement and Clause 1. 2 of the development agreement and since it contains exclusivity provision conferring exclusive right on the petitioner to operate restaurant outlets within the territory of Mumbai and Navi Mumbai, it impliedly contains a negative covenant refraining the respondents from granting sub-license to a third party for operating these outlets within the said designated territory. LEARNED Senior counsel for the respondent No. 1 contended that the letter dated 23. 3. 1998 cannot be construed as a concluded contract inasmuch as execution of a further formal agreement to change or vary any term of the agreements dated 27. 10. 1997 was made a condition or term of the bargain and the said letter does not fulfil the said condition. 3. 1998 cannot be construed as a concluded contract inasmuch as execution of a further formal agreement to change or vary any term of the agreements dated 27. 10. 1997 was made a condition or term of the bargain and the said letter does not fulfil the said condition. He further contended that even assuming for a moment that the said letter could be construed as a contract, it does not override terms of the main contract or otherwise creates obligation or liability independently of the main contract or in other words it does not grant exclusive license to the petitioner to operate Pizza Hut outlets within the territory of Mumbai and Navi Mumbai and, therefore, the present petition for interim relief is not maintainable. ( 17 ) IT is significant to mention that Clause 13. 6. 2 of the Development Agreement and Clause 21. 6. 2 of the Technology license agreement clearly provide that the terms of the agreements may be changed only in writing signed by both the parties. It follows that execution of a written agreement by the contracting parties was a prerequisite to the coming into effect of any agreement regarding variation of any of the terms of the main contract. Needless to add that where the signing of a further formal agreement is made a condition or term of the bargain, and if the formal agreement is not in writing and signed by the parties, there is no concluded contract. Reference may, in this connection, be made to the following observations of Lord Grains in Rossiter Vs. Miller (IS78) 3 AC 1124: "if you find out an unqualified acceptance subject to the condition that an agreement is to be prepared and agreed upon between the parlies, and until that condition is fulfilled no contract is to arise then you cannot find a concluded contract. " ( 18 ) AS noticed earlier, the agreements dated 27. 10. 1997 provide for grant of non-exclusive license to the petitioner to operate 25 pizza Hut Outlets within the territory of Mumbai and Navi Mumbai. As per agreements, the aforesaid terms of the agreements can be changed only in writing signed by both the parties. Undisputedly, the letter dated 23. 3. 1997, was not signed by the respondents. Consequently, the letter dated 23. 3. As per agreements, the aforesaid terms of the agreements can be changed only in writing signed by both the parties. Undisputedly, the letter dated 23. 3. 1997, was not signed by the respondents. Consequently, the letter dated 23. 3. 98 does not satisfy the requirements of aforesaid clauses of the main contract and, therefore, cannot override the main contract or otherwise create obligation or liability independently of the main contract pertaining to grant of non-exclusive right to the petitioner to operate Pizza Hut outlets within the territory of Mumbai and Navi Mumbai. ( 19 ) EVEN assuming for a moment that the letter dated 23. 3. 1998 can be construed as a concluded contract, the question that arises for consideration is whether it contains a negative covenant restraining the respondents from granting license to a third party for operating Pizza Hut Outlets within the terrilory of Mumbai and Navi Mumbai. Mr. Singhvi learned Senior Counsel, has laid much emphasis on the expression " exclusively for the territorv of Mumbai and Navi Mumbai" used in the said letter, in support of his submission that it clearly suggests that the petitioner will have a monopoly on the franchised rights in the designated territory. Learned Senior Counsel. territory, with some ingenuity has also attempted to seek the aid of dictionary meaning of the word "exclusively" as defined in Black s Law Dictionary (6th Edition ) in support of his submission that the word"exclusively" is synonymous in legal import with word the "monopoly". Black s Law Dictionary defines the word "exclusively" as under: "one granted exclusive right and license to use,. manufacture, and sell patented article. . . . one having exclusive right to use patented method and apparatus in designated territory. " ( 20 ) ACCORDING to the learned Senior Counsel, the term "exclusively" was used in the letter dated 23. 3. 1998 to mean that the petitioner was the only licensed franchisee within the territory of Mumbai and Navi Mumbai and the absolute exclusivity in the said designated area constitutes a negaitive covenant restraining the respondents from granting right to a third parly for operating Pizza Hut outlets. Learned Senior Counsel Mr. Arun Jaitly, on the other hand, contended that meaning of the word exclusively is to be determined with reference to the context and the relevant clauses of the main contract. Learned Senior Counsel Mr. Arun Jaitly, on the other hand, contended that meaning of the word exclusively is to be determined with reference to the context and the relevant clauses of the main contract. In this connection, W. Michael Garner on franchise and Distribution Law and Practice" (Vol. 1)1996 cumulative supplement has stated at page 9 as under:- THE notion of exclusive franchise rights has great allure, presumably because it suggests that the franchisee will have a monopoly on the franchised rights in a particular territory. However, the term is a potential source of confusion, and great care should be taken in determining what "exclusive" means in a particular agreement, if the term or concept is used at all. " ( 21 ) IN Rubestein Co. Vs. Francis AIR 1930 Lah 597, it was held that the mere use of the word exclusively does not imply a negative covenant to refrain from doing certain things. I am in respectful agreement with the view taken by the Lahore High Court. When guidance is available from the said decision, reference to the dictionary meaning of the word exclusively becomes unnecessary. Consequently, the letter dated 23. 3. 1998 does not entitle the petitioner to claim the relief of interim injunction against the respondents. That apart, assuming that there was a negative covenant in the agreement, the same will be confined in its application to the period of subsistence of the contract and the restriction imposed therein is operative only during subsistence of the main contract. In the instant case, the agreements are no longer in operation since they have been terminated and so the question of enforcing the alleged negative covenant by granting the interim injunction does not arise. ( 22 ) FOR the reasons discussed above, I find and hold that the petitioner has failed to make out a prima fade case for grant of interim injunction. Balance of convenience also does not lie in favour of grant of the interim injunction as it would do more injury to the respondents than its refusal would occasion to the petitioner. Consequently, the petition is dismissed. Before I part with this order, I would like to make it clear that nothing stated herein shall affect the rights of the parties that are being agitated before the arbitral Tribunal.