Judgment :- 1. Original Application No. 873 of 2000 has been filed by the applicant to grant interim injunction restraining and prohibiting the respondents and their men from carrying on in the B schedule property or any other place within the said SPENCER PLAZA constructed on the A schedule property any activity in the nature of hotel, lodge, restaurants, eat out or eating place or other catering activities pending disposal of the suit. Application No. 4056 of 2000 has been filed by the second respondent to vacate the order of ad-interim injunction granted on 19.9.2000. 2. The case in brief for disposal of both the applications is as follows: The first applicant was the owner of A schedule property described in the plaint and entrusted to the first respondent, the task of developing A schedule property for commercial purposes, by an Agreement dated 16.4.1987. Clause 4 (a) (ii) specifically provided that except the first applicant or its nominees, no other person could carry on any hotel or catering activity. The second respondent is an allottee of shop No. G-3C in the ground floor, which is described as B schedule property in the plaint and Judges summons, was allotted such rights by the first respondent pursuant to the Agreement dated 16.4.1987 with the first applicant. The second respondent became entitled to the said shop together with the undivided proportionate interest in the A schedule property. 3. The first applicant proceeded to execute Sale Deed dated 12.8.1994 in favour of the second respondent granting undivided interest in the A schedule land so as to enable them to own their shop being part of the Commercial Complex called SPENCER PLAZA. Clause (n) of Schedule C also specifically provided that the purchaser shall not at any time carry out or suffer to be carried on in the property any activity in the nature of Hotel, Lodge, Restaurant, Eat out or eating place or other catering activity and the right to run any Restaurant, Hotel, Lodge or eat Out or eating place or other catering activity or the like in Spencer Plaza, shall always remain with the vendor or their nominees. The applicants have come to understand recently that the second respondent by an arrangement, which is undisclosed to the applicants is making feverish arrangements to commence a catering outlet/ice cream parlour and open to the members of the public who visit Spencer Plaza. The applicants have come to understand recently that the second respondent by an arrangement, which is undisclosed to the applicants is making feverish arrangements to commence a catering outlet/ice cream parlour and open to the members of the public who visit Spencer Plaza. It has come to the knowledge of the applicants on 15.9.2000 and there is imminent danger of the second respondent proceeding to start a restaurant. Carpenters and other workers are at work towards such an attempt. This attempted action of the respondents is contrary to the negative covenant specifically prohibiting running of any hotel/restaurant, etc. in the B schedule premises. 4. The first applicant has a long record in the hotel/catering business having HOTEL CONNEMARA and FIESTA at Madras, SAVOY at Ootacamund and WEST END at Bangalore. It was based upon this special awareness and expertise in this particular field that a negative covenant was imposed on development activity within Spencer Plaza. No other allottee-cum-purchase who owns a shop in Spencer Plaza could carry on business of this type. After reconstruction of Spencer Plaza, it was carrying on the business of bakery/catering business/cafeteria/eat out/eating house/meat etc., ever since 1991 continuously in the ground floor. Subsequently, necessary licences were obtained and necessary infrastructure was also set up. It has been extremely popular with all customers/public requenting Spencer Plaza. In 1996, the catering/bakery was run as part of Food World division of the first applicant. The activity of catering/bakery/eating house by the second applicant is also the manner in which the first applicant has chosen to exercise its exclusive right and further by holding 51% shares in the second applicant. It is without prejudice to the rights of the first applicant to carry on such activity either by itself or through other nominees also. 5. The first respondent is duty bound to ensure under the Agreement dated 16.4.1987 that the ultimate occupants shall not be permitted to carry on hotel/catering activity. The second respondent derive its rights only through the Development Agreement in favour of the first respondent and therefore bound by it. The sale deed in favour of the second respondent was directly executed by the first applicant. The said sale deed clearly prohibited the use of the premises for any hotel/catering/restaurant/catering activity. Having purchased subject to the negative covenant, the respondents cannot seek to violate the same. The sale deed in favour of the second respondent was directly executed by the first applicant. The said sale deed clearly prohibited the use of the premises for any hotel/catering/restaurant/catering activity. Having purchased subject to the negative covenant, the respondents cannot seek to violate the same. The second respondent cannot claim any right superior to the rights of the first respondent. The first respondent has, by its conduct, in allowing the second respondent to commence preparations has violated the negative covenant. Thus, all the respondents are liable to be injuncted by this Court and prevented from carrying on restaurant/catering activity in the B schedule property. 6. The negative covenant prohibiting use of a schedule property is for the purpose of securing beneficial enjoyment of the portion of A schedule property retained by the first applicant so that it could better enjoy it, either by itself, or through its nominees. The respondents right to carry on restaurant/hotel activity any where else in the world is not in any manner curbed. The other allottees of shops in Spencer Plaza are entitled to assume in view of the agreement dated 16.4.1987 that except the first applicant or its nominees, no other person would be entitled to carry on any restaurant or catering activity. The first applicant cannot remain silient allowing its right to be whittled down or to be eroded by others. The applicants have got prima facie case. Even before 1954, the first applicant has been exclusively carrying on restaurant activity on the premises existing in a schedule property prior to the construction of Spencer Plaza. The balance of convenience is also entirely in favour of the applicants since the second respondent is not sought to be prevented in any of their legitimate activities of other businesses. If the respondents are allowed to make attempts to set up and carry on the catering unit, the other allottees would equally start violating the negative covenant and claim that their rights are no less than the rights of respondents. This would result in a total negation and erosion of the legal right of the applicants. This legal right is actually annexed to the ownership of property which is a right reserved for the first applicant to better enjoy and utilise its part of the immovable property. This would result in a total negation and erosion of the legal right of the applicants. This legal right is actually annexed to the ownership of property which is a right reserved for the first applicant to better enjoy and utilise its part of the immovable property. It is an obligation annexed to the ownership of property binding on all the respondents and requires to be enforced. Unless an order of interim injunction is granted, the applicants would be put to irreparable injury and loss. The first applicant issued a notice on 15.9.2000 to the respondents pointing out the illegality. They have neither cared to reply nor stopped their activity. Hence, the petition. 7. The second respondent filed a counter affidavit and denied the various averments. The application for injunction is frivolous and vexatious. The applicants have not come to court with clean hands. The first applicant is also trying to focus an inconsequential negative covenant against a co-owner of the property. There cannot be an injunction against a co-owner. The Developers Agreement cannot bind this respondent since they were not party to the same. These clauses are not restrictive negative covenants, but total prohibitory covenants and are neither valid nor enforceable in law. Perusal of section 41 (e) of the Specific Relief Act will disclose that there cannot be an injunction granted to prevent breach of any contract which cannot be specifically enforced. This discrimination violates Article 19 of the Constitution of India. The applicants are trying to ensure that a particular activity is not at all carried out in a particular area so that they can have a complete monopoly which is not a reasonable restriction. These type of covenants are not only restrictive but a total prohibition which is hit by the MRTP Act. There is no registered trade mark for the product manufactured by them or copy right vested with them. No person can claim exclusive right to carry on hotel business to the exclusion of another. Although there is negative covenant but in reality, there are number of owners of shops who are running hotels or eat outs for several years. When the applicants have allowed them to carry on business, by their conduct they have acquiesed in such activities and have waived their right in toto since they are fully aware that the clauses cannot be enforced. When the applicants have allowed them to carry on business, by their conduct they have acquiesed in such activities and have waived their right in toto since they are fully aware that the clauses cannot be enforced. Perusal of the list of persons who are carrying on business in restaurants, eat outs or other catering activities within the commercial complex ranging from one year to five years are also furnished separately in para 5. In connivance with the applicants, a third party is running a full fetched kitchen under name and style B & R kitchen on the second floor. Besides this, there are more than 30 to 40 shops which are selling eatables among other things within the said commercial complex. 8. An article under the head “The Mall That Has It All” dated 22.2.2000 in The Hindu will belie the contention of the applicants and will show that the applicants have never enforced this covenant and let out/sold the premises for many businesses of this nature. Page D of the supplement shows that in the said complex, houses of eating establishment called “Kookie Man” which bakes biscuits and also serves coffee and tea in the common area. “Nut N Spices”, where nuts, spices, sugar free products, chocolates and juices are sold. “Nathumulls Tea Cosy” an extension of Nut and Spices, sells 20 varieties of tea and serves tea with or without milk. There is also an ice cream parlour called Baskin and Robbins, Gayathri Sweets and Chats and pleasant Food/Sealand food. When they are carrying on business for a number of years and the applicants have acquised themselves with the advertisement, it does entitle the applicants to contend that they alone can run an eating house. The applicants have filed this suit with ulterior motive to ventilate personal grievances. 9. This respondent is not running an eating house, but was selling take away packs, softy ice creams and such for persons to purchase and take away and the shop does not have seating facilities to sit and eat. The ice cream shop was inaugurated on 15.9.2000 after certain religious ceremonies and the applicants are aware of the same. The negative covenant does not prohibit selling, but only prohibits running a hotel, lodge, restaurant or an eating place. The ice cream shop was inaugurated on 15.9.2000 after certain religious ceremonies and the applicants are aware of the same. The negative covenant does not prohibit selling, but only prohibits running a hotel, lodge, restaurant or an eating place. A hotel is a place where the proprietor makes his business to furnish food or lodging or both to travellers or other persons. A coffee Hotel and Restaurant is a place where visitors are admitted for consumption of food and drink consisting of sweets, savouries, coffee, tea, etc. and syrup preparations and where elaborate setting accommodation and sanitary facilities for cooking, serving and washing exist. This respondent is not carrying on any of the traders as contemplated in the definition. Clauses (a) to (m) and (o) contemplates as to how an owner of a shop or office should keep the premises which are reasonable restrictions for the benefit of the entire complex whereas clause (n) has no nexus whatsoever. It is the fundamental rule of interpretation that all the clauses have to be read together for a harmonious construction. 9. Where a specific performance of a contract is not possible, no injunction can be granted to prevent a breach of contract. Section 42 gives power or discretion to Courts to enforce a Negative Covenant by way of an injunction. So far as the Builders Agreement is concerned, the same will subsist only till such time the building is complete and possession handed over. Possession has been handed over as early as in 1994 and thereafter the Builders agreement with this respondent has no legal enforceability. The restriction on trade cannot be enforced by way of a sale deed which is only in respect of immovable property. The first applicant had mismanaged Hotel Connemara, Fiesta, Savoy at Ooty and West End at Bangalore. It is only after the takeover by the Taj, that the Connemara has come out of the rut and has earned a better name. Savoy and West End also met with the same fate and were also taken over by Taj. When this is the factual position, the averments of the first applicant that they successfully managed hotels and have vast experience in hotel and catering are incorrect and per se false. The second applicant is running a restaurant in the commercial complex and successfully engaging the common area also. When this is the factual position, the averments of the first applicant that they successfully managed hotels and have vast experience in hotel and catering are incorrect and per se false. The second applicant is running a restaurant in the commercial complex and successfully engaging the common area also. It is the applicants who have contravened each and every covenant. The restriction clauses have been included only to keep the commercial complex clean and neat. This respondent has not given any room in any such complaint. He has not taken steps to run a restaurant in the ground floor. This respondent had started the business on 15.9.2000 much prior to the order of injunction. After receiving the latter from the Advocate, this respondent has temporarily suspended from selling ice creams. Clause 28 of the Builders Agreement is concerned, it will subsist only till such time the building is complete and possession handed over to the purchasers. The negative covenants should bind all the shop owners since the documents are common to all the owners and there cannot be any discrimination against the respondents only. It is with mala fide motive, the present suit and application are filed and as such, the application is liable to be dismissed and the order of interim injunction has to be vacated. 10. The first respondent filed a counter admitting that they are developers of the property. They on their part ensured that the builders agreement entered into with the second respondent contains a clause that they shall not utilise the premises to be allotted to them for carrying on restaurant activity. The first respondent had also written to the first applicant several times that the transfer of property to the first respondent is governed by the sale deed executed between the first applicant and the second respondent and in view of the restrictive clauses in the sale deed, they should take necessary action against the second respondent. They have done all that they can do under the circumstances by incorporating the relevant clauses in the builders agreement and also writing to the second respondent not to conduct the activity. The injunction primarily relates to carrying on the business in B schedule property which is owned and controlled by the second respondent. There is no need for any interim order against the first respondent. 11. The injunction primarily relates to carrying on the business in B schedule property which is owned and controlled by the second respondent. There is no need for any interim order against the first respondent. 11. The plaintiff filed a reply denying the various averments made in the counter filed by the second respondent. The second respondent is not a co-owner as contended by them. A negative covenant can be fully enforced in view of sections 11 and 40 of the Transfer of Property Act. Having secured the benefit under the Development Agreement, the second respondent cannot seek to escape the obligations attached. It would be a situation of approbate and reprobate which it is not permissible for the second respondent to adopt. Clauses 28 of Builders Agreement dated 22.5.1992 between respondents 1 and 2 only explains and defines the nature of the general negative covenant contained in the earlier agreement dated 16.4.1987. The second respondent having secured the shop subject to these rights alone and with open eyes cannot wriggle out of the obligations by imposing contrary interpretations to the straight forward agreement and sale deed. The sale deed dated 12.8.1994 is a clear conveyance which is complete in every sense and it does not discharge or come to an end after the shop is handed over as claimed by them. The negative covenant is annexed to the ownership of property and runs with the land. 12. There is no vested right to the second respondent to carry on any business anywhere forgetting for a moment that even under Building Regulations, certain reservations are made by the statutory authorities for certain activities. There is no question of estoppel. The applicants filed several suits against 9 parties in C.S. No. 81 to 86 of 2000 and also C.S. No. 948 of 1999 apart from the present suit. The restrictions can be imposed not only for the benefit of the building but also the benefit of transferor who had retained a portion of the property. The first applicant is entitled and is in possession of 1,50,000 sq.ft. of constructed area. It is not a restraint on trade at all but a validity enforceable negative covenant imposed by the transferor, which he is entitled to under Sections 11 and 40 of Transfer of Property Act. The first applicant has a long record of running several hotels and restaurants. of constructed area. It is not a restraint on trade at all but a validity enforceable negative covenant imposed by the transferor, which he is entitled to under Sections 11 and 40 of Transfer of Property Act. The first applicant has a long record of running several hotels and restaurants. This Court also can take note of the undertaking by the second respondent that it has not taken any steps to run any restaurant. However, any attempt to serve ice cream or any other eatables would also come within the negative covenant particularly when the public is allowed to consume the food stuff there itself with necessary facilities and infrastructures provided by the second respondent. The motive of the second respondent is made clear by the admission which is only to destroy or corrode the market of the applicants. 13. The plaintiff filed a reply denying the various averments made in the counter filed by the second respondent. The second respondent is not a co-owner as contended by them. A negative covenant can be fully enforced in view of sections 11 and 40 of the Transfer of Property Act. Having secured the benefit under the Development Agreement, the second respondent cannot seek to escape the obligations attached. It would be a situation of approbate and reprobate which it is not permissible for the second respondent to adopt. Clauses 28 of Builders Agreement dated 22.5.1992 between respondents 1 and 2 only explains and defines the nature of the general negative covenant contained in the earlier agreement dated 16.4.1987. The second respondent having secured the shop subject to these rights alone and with open eyes cannot wriggle out of the obligations by imposing contrary interpretations to the straight forward agreement and sale deed. The sale deed dated 12.8.1994 is a clear conveyance which is complete in every sense and it does not discharge or come to an end after the shop is handed over as claimed by them. The negative covenant is annexed to the ownership of property and runs with the land. 14. There is no vested right to the second respondent to carry on any business anywhere forgetting for a moment that even under Building Regulations, certain reservations are made by the statutory authorities for certain activities. There is no question of estoppel. The negative covenant is annexed to the ownership of property and runs with the land. 14. There is no vested right to the second respondent to carry on any business anywhere forgetting for a moment that even under Building Regulations, certain reservations are made by the statutory authorities for certain activities. There is no question of estoppel. The applicants filed several suits against 9 parties in C.S. No. 81 to 86 of 2000 and also C.S. No. 948 of 1999 apart from the present suit. The restrictions can be imposed not only for the benefit of the building but also the benefit of transferor who had retained a portion of the property. The first applicant is entitled and is in possession of 1,50,000 sq.ft. of constructed area. It is not a restraint on trade at all but a validity enforceable negative covenant imposed by the transferor, which he is entitled to under Sections 11 and 40 of Transfer of Property Act. The first applicant has a long record of running several hotels and restaurants. This Court also can take note of the undertaking by the second respondent that it has not taken any steps to run any restaurant. However, any attempt to serve ice cream or any other eatables would also come within the negative covenant particularly when the public is allowed to consume the food stuff there itself with necessary facilities and infrastructures provided by the second respondent. The motive of the second respondent is made clear by the admission which is only to destroy or corrode the market of the applicants. 15. Heard the learned counsel of both sides. 16. The points that arises for consideration are 1) Whether the applicants/plaintiffs have got prima facie case and the balance of convenience is in their favour? 2) Whether the order of ad-interim injunction granted by this Court dated 19.9.2000 is liable to be vacated? 17. The applicants/plaintiffs filed the suit against the defendants for permanent injunction restraining them and their men from in any manner carrying on any restaurant/catering activity/eatery or eating house or any allied activity in the B schedule property or in any other place within the said complex Spencer Plaza constructed on A schedule property. They also filed O.A. No. 873 of 2000 claiming interim relief and Application No. 4056 of 2000 has been filed by the second respondent to vacate the order of interim injunction. They also filed O.A. No. 873 of 2000 claiming interim relief and Application No. 4056 of 2000 has been filed by the second respondent to vacate the order of interim injunction. There is no dispute that the first applicant is the owner of A schedule property which was given for development to the first respondent on certain terms and conditions. The Developers Agreement dated 16.4.1987 was also entered into between the first applicant and the first respondent. Learned Senior Counsel for the applicants/plaintiffs relied on clause 4 (a) (ii) which reads as follows: “The Commercial development undertaken by the Developer shall not include any hotel or catering activity or activity competitive to hotel or catering business and the Developer shall also ensure that the ultimate occupants except the Owner do not employ the premises allotted to them for such activity in SPENCER PLAZA”. 18. The first respondent developer of the property called SPENCER PLAZA allotted the shops to the parties. It is not in dispute that the second respondent was allotted shop No. G. 30 in the ground floor described as B schedule in the plaint. Both respondents 1 and 2 have also entered into Builders Agreement on 22.5.1992 and Clause No. 28, which is relevant to decide the dispute between the parties is extracted as follows: “The proposed Owners shall not at any time carry on or suffer to be carried on in the property any activity in the nature of Hotel, Lodge, Restaurant, Eat Out or Eating Place or other catering activity and the right to run any Hotel, Lodge, Restaurant or eat out or eating place or other catering activity or the like in SPENCER PLAZA shall always remain with SPENCER & Co., Ltd. and its nominees.” 19. It is admitted that the first applicant executed and registered sale deed for the undivided interest in the land to the second respondent under a registered Sale Deed dated 12.8.1994 which enabled the second respondent to become the owner of the shop. It is pertinent to state that the said sale deed contains various terms and conditions subject to which alone the purchase was made by the second respondent. It is pertinent to state that the said sale deed contains various terms and conditions subject to which alone the purchase was made by the second respondent. Schedule C clause (n) in the sale deed dated 12.8.1994 is necessary to appreciate the rival contentions of the parties and, as such, it is extracted as follows: “The Purchaser shall not at any time carry on or suffer to be carried on in the property any activity in the nature of Hotel, Lodge. Restaurant, Eat Out or eating place or other catering activity and the right to run any Restaurant Hotel, Lodge or Eat Out or eating place or other catering activity or the like in SPENCER PLAZA shall always remain with the Vendor or their nominees”. 20. Now, the learned Senior Counsel for the plaintiffs contended that the second respondent, in contrary to the negative covenants which finds a place in the documents, to which the second respondent was also a party, was attempting to run a catering unit/ice cream parlour in the B schedule property and made preparations on 15.9.2000 and immediately they sent a fax message also and only to prevent the act of the second respondent and to enforce to negative covenant, the suit as well as the application are filed. It is further stated that the first applicant had a long history of running hotels, catering units, restaurants, etc., eversince the construction of Spencer Plaza and is carrying on an eatery in the ground floor earlier through Food World which was a division of the first applicant. The second applicant is the subsidary of the first applicant. Even prior to that, in the erstwhile Spencer Building of A schedule land, prior to demolition and construction of these shops, the first applicant was well over 50 years carrying on Hotel, Restaurant eatery. It is only under this background the applicants made a condition for development that no allottee except the first applicant or his nominees shall be allowed to carry on hotel, restaurant or catering activities, etc. in the other places. This has been necessitated to ensure that the quality and hygiene of the complex should not be ruined by indiscriminate catering activity which will ultimately lead to the diminution in the value of the property as well as it would be in the haphazard to the public interest, health and safety. 21. in the other places. This has been necessitated to ensure that the quality and hygiene of the complex should not be ruined by indiscriminate catering activity which will ultimately lead to the diminution in the value of the property as well as it would be in the haphazard to the public interest, health and safety. 21. Learned Senior Counsel further stated that the first applicant as a transferor, is entitled to provide such a negative covenant for the more beneficial enjoyment of its own property which it has not parted with under the Developers Agreement. Admittedly, the first applicant has retained about 1.5 lakhs sq ft. in the Spencer plaza constructed and they have not transferred the undivided interest in this land. By virtue of the proviso to Sections 11 and 40 of Transfer of Property Act, they are entitled to provide such a negative stipulation more for the beneficial enjoyment of their own property and unless the order of interim injunction is granted against the second respondent, they would be put to much loss and hardship. It is further stated that the applicants have got a prima facie case in view of the various clauses referred to above and the balance of convenience is also in their favour. 22. Learned Senior Counsel for the plaintiffs further contended that the second respondent has no vested right to carry on any such activity and knowing full well with open eyes, they have entered into a Builders Agreement with the first respondent and later purchased the property under a registered sale deed from the first applicant. There is no force in the contention of the second respondent that the negative covenant cannot be enforced. Moreover, the principles of the Contract Act cannot be looked into and the provisions of the Transfer of Property Act alone can be made applicable. Section 27 of the Contract, or principles of restraining of trade have no application to the present case. 23. Per contra, learned counsel for the second respondent mainly contended that the negative covenants in all the documents cannot be enforced by the applicants. So far as the Developers Agreement of the year 1987, the second respondent was not a party and, as such, it is not binding on them. 23. Per contra, learned counsel for the second respondent mainly contended that the negative covenants in all the documents cannot be enforced by the applicants. So far as the Developers Agreement of the year 1987, the second respondent was not a party and, as such, it is not binding on them. No doubt, such negative covenants find a place in the documents of the year 1992 as well as in 1944 and they cannot be enforced since the negative covenants will not run with the land and not intended for the beneficial enjoyment of any other property. Apart from that, the second respondent also is a purchaser of an undivided interest in the land property and he becomes a co-owner along with the owners of A schedule property and this being so, the first applicant is not entitled to claim the relief of interim injunction against the co-owner. Learned counsel further stated that apart from the second respondent, in other areas also, the catering activities are carried on by the other shop owners and nothing has been done by the first applicant to present the same and, as such, the applicants/plaintiffs are guilty of laches and acquiescence. 24. Learned Senior Counsel for the plaintiffs filed type set of documents to show that they were already in the profession of running hotels and restaurants to disprove the contention of the second respondent that the applicants have no experience. Learned counsel for the second respondent contended that the claim of specific performance cannot be granted to the plaintiffs in view of Sections 41 and 42 of Specific Relief Act and this being so, they are not entitled to claim temporary injunction. It is further stated that the negative covenant is one opposed to public policy and, as such, it cannot be enforced. The plaintiffs have to succeed only on the strength of their case and not on the weakness in the case of the defendants. The plaintiffs must establish that the negative covenant runs with the land for the beneficial enjoyment of another piece of land and they should also show that there are two lands involved, one the benefitted land and other burdened land. The benefitted land is a dominant tenement and the burdened land is servient tenement. The total extent of the constructed area in the A schedule property is 10 lakhs sq.ft. The benefitted land is a dominant tenement and the burdened land is servient tenement. The total extent of the constructed area in the A schedule property is 10 lakhs sq.ft. and this being so, the first applicant claims only right in 1.5 lakhs sq.ft. constructed area which works out to 15% of the total extent. Schedule C, no doubt, relates to restriction on the right of the purchaser. The document as a whole has to be read to arrive at the intention of the parties. 25. Learned Counsel for the second respondent also relied on number of decisions to support his contention. First, he relied on London and South Western Railway Company v. GOMM (20 Chancery Division 562), wherein the Railway Company sold some superfluous land with a covenant to reconvey the same. The person, who purchased the property, sold it to another party later. The Chancery Division held that the transaction of 1865 was not ultra vires, the Company is within their powers and executory interest in property to arise on a future event which may not happen within the limits of the rule against perpetuities and, as such, void. The Chancery Division also held that the doctrine of Tulk v. Moxhay only applies to restrictive covenants and not to do acts relating to the land. 26. They also relied on Austerberry v. Corporation of Oldham (29 Chancery Division 750) and in the doctrine, there is a covenant with A. His heirs and assigns, that they the trustees, their heirs and assigns, would make the road and at all times keep it in repair, and allow the use of it by the public subject to tolls. The piece of land so conveyed was bounded on both sides by other lands belonging to A. The Chancery Division on affirming the decision that the plaintiff could not enforce the covenant against the defendants. 27. Learned Counsel for the second respondent also relied on the decision reported in Ganesh Sonar v. Purnendu Narayan Singh (AIR 1962 Patna 201) that granting lease with covenants to renew or otherwise will not attract the Rules or Perpetuities. It was a lease and the lease deed which is bipartite containing several clauses sought to be enforced. 28. 27. Learned Counsel for the second respondent also relied on the decision reported in Ganesh Sonar v. Purnendu Narayan Singh (AIR 1962 Patna 201) that granting lease with covenants to renew or otherwise will not attract the Rules or Perpetuities. It was a lease and the lease deed which is bipartite containing several clauses sought to be enforced. 28. They also relied on the decision in R. Kempraj v. V. Burton Son and Company ( AIR 1970 SC 1872 = 83 L.W. 30 S.N.), where the learned Judges of the Supreme Court held that a clause in lease for renewal is a covenant running with the land and can be enforced and it is not hit by rules of perpetuities. They also relied on Bhagawat Prasad v. Damodar Dass (1976 Allahabad 411) and it has been held that the benefit of exemption of the second part of Section 11 of Transfer of Property Act is only available to the transferor and is not available to another transferees. If this position is clear, then the covenants in the sale deed executed by the first plaintiff cannot be enforced by any other co-owner. They relied upon George John Spicer v. George Martin (XIV Appeal Cases 12), wherein it was stated “a particular person purchased from commissioners by several conveyances, the fee simple of several houses forming one block of buildings upon a site laid out in accordance with a building scheme, each conveyance containing a covenant by S not to carry on or permit to be carried on upon the premises conveyed any trade or business, but to keep the house as a private dwelling house only, and not to do or suffer to be done upon the premises conveyed anything which might grow to the annoyance of any person.. confirming the decisions of the Court of Appeal, on a different ground, the House of Lords held that this is in the nature of a covenant running with the land for the beneficial enjoyment of all the owners.” 29. Learned Counsel for the second respondent also relied on Foley v. Classic Coaches Ltd. (1934 (2) K.B. 1), wherein contract was entered into for the sale of land and simultaneously a supplemental agreement was entered into by the purchasers that the purchasers should purchase petrol exclusively from the vendor. Learned Counsel for the second respondent also relied on Foley v. Classic Coaches Ltd. (1934 (2) K.B. 1), wherein contract was entered into for the sale of land and simultaneously a supplemental agreement was entered into by the purchasers that the purchasers should purchase petrol exclusively from the vendor. It was held that the land is the subject of the first agreement and was duly conveyed and the defendant obtained the petrol from the plaintiff. This is not a covenant running with the land for the beneficial enjoyment of the neighbouring plot and so long the respondent was willing to supply reasonable quantity for reasonable price from the Pump belonging to him on that land. 30. The second respondent also relied on Ramble v. Micheal K. Lal (AIR 1951 Ajmer 74) that restrictive covenants for the benefit of better enjoyment of the property cannot be enforced against the covenantee by a stranger. They also relied on the decision in Arjan Singh & others v. Deputy Mal Jain & others ((1982) ILR 1 Delhi page 11) that only if the covenant runs with the land, it is enforceable. They also relied on Rogers v. Hosegood (1900 (2) Chancery Division 388) that a covenant running with the land and a benefit which can be enforced in equity. The covenant was that the land should be used only for a private residence and no trade or business should be carried on in the said land. 31. It is therefore clear from the aforesaid decisions that only if a transferor can enforce the covenant and moreover the negative covenant should run for the benefit of the other land, they must be with the covenantee who has an interest in the land to which they refer and they must concern or tough the land. Now, so far as this case is concerned, the first applicant is the transferor and the second respondent is only a transferee. It cannot be said that the first applicant is a stranger attempting to en force the negative covenant. Sanjeevi Rao on Transfer of Property Act (6th Edition) while dealing with Second para of Section 11 at page 246 also states that the transferor cannot impose restrictions, unconnected with the beneficial enjoyment of his remaining piece. It cannot be said that the first applicant is a stranger attempting to en force the negative covenant. Sanjeevi Rao on Transfer of Property Act (6th Edition) while dealing with Second para of Section 11 at page 246 also states that the transferor cannot impose restrictions, unconnected with the beneficial enjoyment of his remaining piece. Blacks Law Dictionary has defined “covenant running with the land as a covenant which goes with the land as being annexed to the estate and which cannot be separated from the land and transferred without it. The covenant is said to run with the land when not only the original parties or their representative but each successive owners will be entitled to the benefit and when the covenant cannot be separated from the land. 32. Section 11 of Transfer of Property Act reads as follows: Restriction repugnant to interest created.- Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof. 33. Learned Senior Counsel for the plaintiffs relied on mainly the second paragraph of Section 11 in support of his contention. There is no dispute that the Second Part of Section 11 can be enforced only by the transferor not by a transferee of another portion of the property. This is so even though all the transfers have similar conditions imposed, and all were concluded on the same day and the conditions are imposed for the beneficial enjoyment of the portions transferred to such other transferees. A contract binds only the parties thereto. Section 40 also does not apply as it is confined to land burdened with restrictive covenants. The second paragraph permits a direction in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property. A contract binds only the parties thereto. Section 40 also does not apply as it is confined to land burdened with restrictive covenants. The second paragraph permits a direction in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property. To attract the application of this paragraph the transfer must be a piece out of the whole, out of which the transferor retains a part. If a breach is made of such a direction, the transferor has the right to enforce such direction, or to have recourse to any remedy he may have in respect of the breach. The second paragraph means that the transferor may impose conditions restraining the enjoyment, in a particular manner, of the transferred land, if such restrictions are for the benefit, that is improvement or better enjoyment of the transferors part of the land or other immovable property. The transferor cannot impose restrictions, unconnected with the beneficial enjoyment of his remaining piece. 34. It is therefore clear that so far as this case is concerned, about 1.5 lakhs sq. ft. of constructed area is kept in the exclusive possession and enjoyment of the applicants. Only B schedule property was conveyed to the second respondent, wherein the negative covenant has been incorporated under schedule C clause (n) of the Sale Deed. It is also not in dispute that the B schedule property has been purchased by the second respondent subject to the Developer Agreement which he had entered into with the first respondent in the year 1992. As adverted to clause 28 of the Builders Agreement also incorporates the negative covenant. Moreover, the first defendant had also entered into the Developer Agreement with the first plaintiff in 1987 and clause 4 (a) (ii) referred to above also deals with the negative covenant. The very fact that the second respondent had purchased the property with open eyes subject to the negative covenants and considering the second paragraph of Section 11 of Transfer of Property Act, it is prima facie clear that such a covenant can be enforced by the applicants in the light of the aforesaid submissions. The very fact that the second respondent had purchased the property with open eyes subject to the negative covenants and considering the second paragraph of Section 11 of Transfer of Property Act, it is prima facie clear that such a covenant can be enforced by the applicants in the light of the aforesaid submissions. Although the second respondent took a stand that number of persons have been carrying on the catering activity in the other place in the Spencer Plaza, it has been categorically stated by the applicants in the reply statement that they have filed number of suits namely, C.S. No. 81 to 86 of 2000 in respect of those persons also. Under the circumstances, now the plaintiffs cannot be blamed on the theory of guilty of laches or acquiescence since they have taken action at the appropriate time and they are also pending before this Court. The preparations have been made by the second respondent as early as 15.9.2000 and immediately the plaintiffs have sent a notice to the both the respondents. 35. Learned counsel for the second respondent relied on Halsburys Law of England IV Edition, Vol. 16 relating to Covenants in restraint of trade. A covenant in restraint of trade between an employer and an employee is unenforceable unless it is reasonable as between the parties and it is reasonable with reference to the public interest”. This has no application to the case on hand because there is no relationship of employer and employee between the parties to the suit is concerned. The second respondent also relied on Halsburys Laws of England IV Edition, Vol. 42 that “Upon the sale of land the purchaser is frequently required to enter into covenants, either positive or negative, affecting the enjoyment of the land, or of neighbouring premises”. In order that the benefit of a covenant may run with the land at law it must be of such a nature as to touch and concern the land, that is, it must either affect the land as regards mode of occupation, or it must be such as in itself, and not merely from colla teral circumstances, affects the value of the land. If it fulfils that condition, the benefit of the covenant can run at law with land retained by the vendor and subsequently disposed of by him to successors in title holding the same or a derivative legal estate. If it fulfils that condition, the benefit of the covenant can run at law with land retained by the vendor and subsequently disposed of by him to successors in title holding the same or a derivative legal estate. If it does not fulfil these conditions, it is a personal covenant, and is binding only between the parties and their personal representatives. 36. The second respondent also relied on the decision reported in Brahmaputra Tea Co. Ltd v. E. Scarth (ILR XI Calcutta 545) that a contract under which a person is partially restrained from competing, after the term of his engagement is over, with his former employer, is bad under Section 27 of the Contract Act and this decision is also not applicable because the case relates to one employer and one employee. They also relied on Ramkishorelal v. Kamalnarayan ( AIR 1963 SC 890 ) for the principle that “Court must consider document as a whole and also take into account circumstances under which particular words were used importance of status and training of parties-Rule of harmonious construction to be followed. There is no dispute about this principle. 37. Reliance is also placed on the decision Niranjan Shankar Golikari v. Century Spinning and Mfg. Co. Ltd. ( 1967 (1) L.L.J. 740 ) relating to a case of Master and Servant and based upon the service conditions. Clauses 9 provided that during the continuance of his employment as well as thereafter the employee shall keep confidential and prevent divulgence of any and all information, instruments, documents, etc., of the company that might come to his knowledge. Contrary to the terms of the agreement, he resigned and took service with another company. The employee took a stand that the agreement constituted a restraint on trade and was therefore opposed to the public policy and in order to be valid and enforceable, the covenant in question should be reasonable in space and time and to the extent necessary to protect the employers right of property and the injunction to enforce a negative stipulation can only be granted for the legitimate purpose of safeguarding the trade secrets of the employer. It was held that negative covenants operative during the period of contract of employment when the employee is bound to serve his employer exclusively are generally not regarded as restraint of trade and therefore do not fall under Section 27 of the Contract Act. A negative covenant that the employee would not engage himself in a trade or business or would not get himself employed by any other master for whom he would perform similar or substantially similar duties is not therefore a restraint of trade unless the contract as aforesaid is unconscionable or excessively harsh or unreasonable or one-sided. The injunction issued is restricted as to time, the nature of employment and as to area and cannot therefore be said to be too wide or unreasonable or unnecessary for the protection of the interests of the respondent company. This decision cannot be made applicable to the case on hand since it relates to the service conditions of an employee and between the master and servant. 38. Learned Senior Counsel for the applicants/plaintiffs contended that the contention of the second respondent based upon Sections 41 and 42 of the Specific Relief Act have no application to the case on hand. In support of his contention, learned Senior Counsel relied on the decision in Bai Dosabai v. Mathurdas ( AIR 1980 SC 1334 = 93 L.W. 72 S.N.) that contracts with negative covenants are specifically enforceable. Section 42 of the Specific Relief Act also would apply to such negative covenants in the matter of injunction. Admittedly, the second respondent had no prior right in the property and he had purchased the property subject to the terms and conditions. For this, learned senior counsel for the plaintiffs relied on Tiruvengada Moopanar v. Subbiah Moopanar ( 1967 (I) MLJ 117 = 79 L.W. 676) that an agreement not to carry on one particular trade within a town, has been held by the Court to be not affected by the restraint of trade principle, but have been sustained as a reasonable one by the Courts. The restriction now sought for by the applicants is only for business in a building, namely Spencer Plaza and not even to the whole of the city of Chennai. The restriction now sought for by the applicants is only for business in a building, namely Spencer Plaza and not even to the whole of the city of Chennai. It has been clearly laid down in the decision that if the Court is satisfied that the restraint is reasonably necessary to protect the interest of the contracting parties and was not inimical to the interests of the public, it will treat it as valid. The reasonableness of the restriction must be judged by the character and the nature of the business or its customers. For example, an agreement by a person not to sell a particular kind of his goods to any one else except the plaintiff, generally or within a specified territory, e.g., exclusive agency of certain goods, or an agreement to sell certain goods only to a specified party for a stipulated period, have all been held to be valid. 39. Learned Senior Counsel for the plaintiffs also relied on Bhagwat Prasad v. Damodar Das (AIR 1976 Allahabad 411) for the proposition of benefit of exception in the second part of Section 11 available only to the transferror and the benefit not available to another transferee even though all the transfers were made on the same day and contain similar restrictive conditions. It has also been held in V.M. & S. Brewing Co. v. V. Breweries Ltd. (AIR 1934 P.C.101 = 39 L.W. 618), wherein it was observed as follows: “When a covenant in restraint of trade is called in a question the burden of justifying it is laid on the party seeking to uphold it. The tests of justification are: that a contract which is in restraint of trade cannot be enforced unless (a) it is reasonable as between the parties; (b) it is consistent with the interest of the public”. 40. Learned Counsel for the second respondent contended that there is recital in the sale deed as if absolute right was conferred to the purchaser and this being so, the subsequent clause in schedule C clause (n) relating to the negative covenant cannot be valid one. I am unable to agree with the contention of the learned counsel for the second respondent. Number of schedules have been incorporated in the sale deed and it also refers to the earlier Builders Agreement also. I am unable to agree with the contention of the learned counsel for the second respondent. Number of schedules have been incorporated in the sale deed and it also refers to the earlier Builders Agreement also. If the negative covenant is absolutely necessary for the beneficial enjoyment of the other property then necessarily it can be enforced. 41. Learned Senior Counsel for the plaintiffs also relied on the decision reported in ESSO Petroleum v. Harpers Garage (1967 (1) All England Reporter 699) to find out whether the agreement entered into between the parties is a reasonable or unreasonable restraint of trade. Although the principle can be made directly applicable, yet, taking into consideration of the circumstances and details of the case, the analogy can be made applicable for a limited purpose. Number of decisions cited on behalf of the second respondent relate to question whether one transferee can enforce the right against another transferee and they are not applicable to the case on hand. If no land has been retained by the vendor, then the situation would have been different, but, so far as this case is concerned, a substantial portion of the land has been retained by the vendor and only under such circumstances, such a clause has been introduced in the sale deed as well as in the other documents. 42. One other contention raised by the second respondent is that the respondents right to trade or business is affected and as such Article 19 (1) (g) of Constitution of India can be made applicable. Even under Article 19 (i) (g), there can be restrictions as seen from sub-clause (6). One such restriction which is reasonable is to provision to Section 11 of the Transfer of Property Act, which is binding upon all citizens. Furthermore, fundamental rights cannot be sought to be enforced to provide party like the applicants. Similarly if harmonious interpretation is applied, then clause (n) of Schedule C must be given its natural meaning. It is also stated that the second respondent is selling only ice creams and no seating arrangement has been made. However, learned Senior Counsel for the plaintiffs contended that the second respondent is actually permitting customers to eat and consume ice creams and other products and hence, it would be an eatery. 43. It is also stated that the second respondent is selling only ice creams and no seating arrangement has been made. However, learned Senior Counsel for the plaintiffs contended that the second respondent is actually permitting customers to eat and consume ice creams and other products and hence, it would be an eatery. 43. It is therefore clear from clause (n) of Schedule C of the Sale Deed, wherein it is categorically stated that the purchaser shall not at any time carry on or suffer to be carried on in the property any activity in the nature of Hotel. Lodge, Restaurant, Eat Out or Eating Place or other catering activity. Similar recital is also introduced in clause 28 of the Builders Agreement dated 22.5.1992 between respondents 1 and 2. Likewise, in the Developers Agreement entered into between the first applicant and the first respondent dated 16.4.1987, clause 4 (a) (ii) also reiterates the same covenant. In view of the decisions cited by either party, it is manifestly clear that if the negative covenant runs with the land and for the beneficial enjoyment of the other land, it can be enforced. Now, the plaintiffs have filed number of documents to show that they are already in the field of running Hotel or Restaurant and the same has not been seriously disputed by the respondents. They simply stated that although the plaintiffs were in the said business, it was running at a loss and the same was entrusted to other persons. Now, the question whether the plaintiffs were running the said business on loss or profit is not a matter to be considered to decide the present controversy. Whether the negative covenant can be enforced is the only question to be considered. 44. It is, therefore, prima facie clear that the negative covenant prevents the second respondent from running the Hotel, Lodge or Restaurant or Eating Out and I am of the view that the Second respondent should not run either hotel/restaurant/catering activity in the said place. The second respondent; however, in the counter stated that he has not taken any steps to run restaurant; but, however, he has been selling only eatables. The second respondent has also filed photographs taken at the time of the inauguration. It clearly discloses that people have been consuming the eatables. The second respondent; however, in the counter stated that he has not taken any steps to run restaurant; but, however, he has been selling only eatables. The second respondent has also filed photographs taken at the time of the inauguration. It clearly discloses that people have been consuming the eatables. When once the plaintiffs have positively established that the negative covenant is enforceable, I am of the view that the second respondent should be restrained from running any hotel/restaurant or any catering activity in the said place till the disposal of the suit. However, at the same time, the sale of any eatables or consumer products can be sold in the shop and the place should not be converted as a hotel/restaurant or a lodge. There should not be any seating accommodation in the said place to enable the people to consume the eatables purchased in the same place with a view to circumvent the negative covenant and this should not be done on any account. The applicants have got prima facie case and the balance of convenience is in their favour. Hence, these points are answered accordingly. 45. For the reasons stated above, the second respondent is restrained from running any hotel/lodge/restaurant or other catering activity in B schedule property pending disposal of the suit. However, it is open to the second respondent to sell any eatables in the shop, but there should not be any seat or accommodation either inside or outside the shop to enable the customers to use the place as a hotel/restaurant. Hence, these application are ordered accordingly.