JUDGMENT Bhaskar Bhattacharya, J.: The only question that arises for determination in these applications is whether a credit rating agency has the unfettered right of rating the performance of a Company and publishing the same even though the company has expressly terminated the contract for credit rating and makes it known to the concerned credit rating agency that it will no longer accept or use its rating. 2. The plaintiff is a non-banking finance company engaged in the business of asset financing including leasing and hire- purchase, real estate leasing and bills discounting. The plaintiff is duly registered with the Reserve Bank of India. 3. The respondent carries on business as credit rating agency, inter alia, rating debt commercial programmes of companies including fixed deposit programmes and debenture programmes. 4. Till a few years back, rating of services, programmes or instruments was almost unknown in the business circle of India. Over the past few years, Indian businesses have however started getting their services, programmes and instruments rated with the object of presenting a true image of its services, programmes and performances to the general public. 5. Rating services are provided by credit rating agencies at the invitation of companies or businesses against realisation of fees for rating and surveillance. The contract for rating service is as such entered into at the invitation of the concerned company. The rating of financial programmes and instruments was optional for non-banking finance companies till December 1997. However, since January 1998 the Reserve Bank of India has made it compulsory for non-banking finance company to have the same rated. Although the Reserve Bank of India has made it compulsory for non-banking companies to engage a rating agency, such non-banking finance company is not obliged to engage the services of any particular agency and is not prevented from engaging the services of more than one agency at the same time. 6. The plaintiff entered into two different agreements with the respondent for rating its debenture programme as well as fixed deposit programme against payment of agreed rating charges and surveillance fees. 7. At this stage it will be appropriate to quote the request of the plaintiff for rating :- "We request you to determine the rating of our above debenture programme and should we decide to use the rating in any manner, to keep the rating under surveillance during the life of the debentures. 7. At this stage it will be appropriate to quote the request of the plaintiff for rating :- "We request you to determine the rating of our above debenture programme and should we decide to use the rating in any manner, to keep the rating under surveillance during the life of the debentures. We are pleased to provide you the audited annual accounts for the past five years as also the financial projections for the next five years with the relevant assumptions. We also undertake to provide you such other information that you may require on the understanding that it will be treated strictly confidential. We understand that in determining the rating, CRISL, relies on the information before it and not on any subsequent information. We also understand that CRISL, does not guarantee the completeness or accuracy of the information on which the rating is based. We note that the right to use the rating will rest with us; however, should we decide to use the rating in any manner, CRISL" will also have the right to publish the rating. We are pleased to enclose our cheque for Rs. 1,50,000/- being non- refundable fees payable for obtaining the initial rating. Should we decide to use the rating, we also undertake to pay an annual surveillance fee, from the second year onwards, at rates as applicable from time to time, for the continuous monitoring of the rating of the debentures over their life. We also agree to reimburse CRISIL, all travel and out-of-pocket expenses that it may incur in connection with the initial rating as well as surveillance. We note that the current annual surveillance fee is 0.03% of the outstanding amount of debentures subject to a minimum of Rs. 25,000/- per annum and that the fee may be revised by CRISIL prospectively to a maximum of 0.05% of the outstanding amount of debentures. We also agree that all materials given to CRISIL for the rating shall become the property of CRISIL, on the express understanding that the information contained therein shall be used only for the purpose of rating/ surveillance. Should we decide to use the rating in any manner, we shall communicate our decision to you in writing within one month of your assigning the rating, and we agree to provide on a continuing and timely basis all such information that we. Should we decide to use the rating in any manner, we shall communicate our decision to you in writing within one month of your assigning the rating, and we agree to provide on a continuing and timely basis all such information that we. consider material, or that CRISIL may require, for the proper monitoring of the rating assigned to the debentures. We understand that CRISIL has the right to revise the rating, based on any event which in CRISIL's opinion warrants a revision of the rating assigned. We also understand that failure to provide such information or to properly answer your enquiries in a timely manner or pay the surveillance fees could result in your suspending or withdrawing or revising the rating assigned to the debentures. It shall also be within your rights to publicise/disseminate in any manner you choose such suspension/withdrawn/revision in the ratings without reference to us and you may also assign such reasons for the suspension/withdrawal/revision of the rating as you may consider appropriate." 8. Similar offer was also given to the defendant for rating the fixed deposit programme of the plaintiff. 9. The defendant accepted the said request of the plaintiff by answering in the following terms ;- "We refer to your request for rating the fixed deposit programme of your company. Our rating committee, after due consideration, has assigned a 'FAA' (pronounced 'F Double A') rating to the fixed deposit programme of your company. This rating indicates high safety regarding timely payment of interest and principal. The details of CRISIL rating symbols for fixed deposits are enclosed. We would appreciate it if you could send us a written confirmation regarding your use of the above rating within a month. Please note that intimation to your bankers of the rating assigned would also constitute use of the rating. CRISIL reserves the right to suspend, withdraw or revise the rating assigned to the fixed deposit programme at any time on the basis of new information, or unavailability of information or other circumstances which CRISIL believes may have an impact on the rating. Should you require any clarifications, please feel free to contact us.' 10. Similar acceptance was made in respect of the debenture programme. Pursuant to such agreement, the defendant started rating the programmes of the plaintiff and the plaintiff also used such rating. Should you require any clarifications, please feel free to contact us.' 10. Similar acceptance was made in respect of the debenture programme. Pursuant to such agreement, the defendant started rating the programmes of the plaintiff and the plaintiff also used such rating. Dispute however started in the year 1996 when the plaintiff became dissatisfied with the revision of rating by the defendant. According to the plaintiff such revision was without any justifiable basis and appeared to have been influenced more by the defendant's perceptions of the future of non-banking financial companies than the plaintiffs performance. 11. In October 1996, the plaintiff entered into a contract with a different rating agency being Credit and Analysis Research Limited for rating its programme. Ultimately, the plaintiff informed the defendant that it had decided not to either accept or use the respondent's credit rating and asked the defendant not to continue the purported rating of the plaintiff or to publish the result thereof. 12. Inspite of repeated letters asking the defendant to desist from rating the performance of the plaintiff, the defendant paid no heed to such request and continued to revise their alleged assessment. 13. Under the aforesaid circumstances, the plaintiff filed the instant suit for a decree for perpetual injunction restraining the defendant from rating or purporting to rate the plaintiffs fixed deposit and non-convertible debentures programmes, from making any representation with regard thereto or publishing any purported rating result of those programmes of the plaintiff either by itself or through its men, servants or agents. In the suit the plaintiff also prayed for a decree of Rs. 5 crores against the defendant. 14. In connection with the aforesaid suit, the plaintiff has filed the instant application for temporary injunction restraining the defendant from rating or purporting to rate the plaintiffs fixed deposit and non-convertible debentures programmes or making any representation with regard thereto or from publishing any purported rating result of the said programmes of the petitioner or any observations with regard thereto. 15. On such application a learned Judge of this Court passed an order of ad interim injunction in terms of the prayer made in the application. 16. The aforesaid application has been contested by defendant by filing affidavit-in-opposition thereby opposing the prayer of the plaintiff. The sum and substance of the objection raised by the defendant is that the agreement of this nature was not terminable. 16. The aforesaid application has been contested by defendant by filing affidavit-in-opposition thereby opposing the prayer of the plaintiff. The sum and substance of the objection raised by the defendant is that the agreement of this nature was not terminable. According to the defendant the duration was specified viz. during the lifetime of the debenture programme or fixed deposit or the period of fixed deposit. Once the initial rating is made by the defendant and has been accepted by the plaintiff, the defendant contends, it automatically acquired right to continues its rating till the end of debenture or deposit programmes. According to the defendant, even if the plaintiff failed to provide document or information that might have been called for by defendant, it was given right to revise the rating. It is further contended that the defendant had the right to revise rating even without reference to the plaintiff. The defendant contends that the situation is comparable to agency coupled with an interest and as such a situation, the agency is non-terminable while the interest of the agency lasts. 17. The defendant therefore prays for vacating the ad interim order of injunction granted earlier. 18. Mr. Mitra, the learned counsel appearing on behalf of the defendant has first contended that in the pleading no breach on the part of the defendant has been alleged and as such there was no justification on the part of the plaintiff to terminate the contract. According to Mr. Mitra, if there is no valid termination of the contract, in such a case, the contract survives and thus no injunction should be granted restraining the defendant from performing its part of the contract. 19. Mr. Mitra next contends that the situation in the present case is comparable to agency coupled with an interest and in such a case the agency is not terminable while the interest of the agent lasts. 20. Thus, Mr. Mitra proceeds, no injunction should be granted restraining the defendant from performing its part of the contract. 21. Mr. Mitra further submits that injunction being a discretionary remedy, this court should not exercise discretion in favour of the plaintiff who has not come with clean hand. 20. Thus, Mr. Mitra proceeds, no injunction should be granted restraining the defendant from performing its part of the contract. 21. Mr. Mitra further submits that injunction being a discretionary remedy, this court should not exercise discretion in favour of the plaintiff who has not come with clean hand. Mr .Mitra further contends that notice by which the agreements were terminated was issued on February 4, 1999, while the suit was filed on the very next date which amounts to no notice and as such the court should ignore such notice of termination. In support of such contention Mr. Mitra relies upon a decision in the case of Hill vs. C. A. Parsons & Co. Ltd., reported in ( 1971) 3 All ER page 1345. 22. Mr .Mitra also relies upon the decisions of this court in the cases of Joy Ram Valji vs. Indian Iron and Steel Company Limited, reported in AIR 1940 Calcutta page 466 and Vijaya Mineral vs. Bikash Chandra Deb, reported in AIR 1996 Cal. 97. Mr .Mitra further relies upon another English decision in the case of Decm-Wall International SA vs. Practitioners Marketing Limited, reported in (1971) 2 All ER page 216. 23. In the case of Joy Ram Valji (supra), the plaintiff prayed for an injunction restraining the defendants, their servants and agents from purchasing dolomite and lime stone from any party or parties other than the plaintiff and from using dolomite or lime stone so purchased in their furnace. In such a case, the court found that there was breach of an implied negative covenant on the part of defendant as the court was of the view that there was a binding and permanent agreement whereby the defendant undertook to purchase the lime stone and dolomite they needed for their works from the plaintiff alone at the rate specified. Under such circumstances, court granted an injunction as prayed for by the plaintiff. 24. In the case of Vijay a Minerals (supra), in an agreement for sale of manganese and iron ore contained a negative covenant that ore from mines would not be sold to anyone except the plaintiff. In such a case, the court granted injunction enforcing the negative covenant. 25. In my view, the principle laid down in those decisions cannot have any application to an agreement of the present nature. In such a case, the court granted injunction enforcing the negative covenant. 25. In my view, the principle laid down in those decisions cannot have any application to an agreement of the present nature. There is no dispute that the agreements do not prohibit the plaintiff from using rating of any other agencies than the defendant. It is needless to mention that in this type of job, personal skill of defendant is involved. We must not forget at this juncture that the defendant even did not claim that its rating will be accurate. In such a situation, if the plaintiff, a business concern, is dissatisfied with the rating of the defendant and apprehends injury for faulty rating, it can always terminate the contract. But if the contract is terminated without just cause, the defendant shall be entitled to damages. Even if I accept the extreme contention of Mr. Mitra that the agreement was subsisting during the, entire life period of the programme, even in such a case, the defendant cannot insist that it will go on publishing its rating about the performances of the programmes notwithstanding the fact that the plaintiff is dissatisfied with the skill and ability of the defendant. The defendant in such a case can claim damages for termination of the agreement during the lifetime of the programme without any just cause. 26. In the case of Decro- Wall International SA (supra), all that was held was that repudiation by one party did not of itself discharge a contract; before a contract could be treated as discharged that repudiation had to be accepted by the other party .There is no dispute with the aforesaid proposition of law. But that does not mean that in this type of a case, the party who alleges breach can insist that he will go on performing his part of the contract. Remedy of damages, in my view, is the appropriate remedy of that party in such a case. 27. In the case of Hill vs. C A Parsons & Co. Ltd. (supra), it was held that when a master had unlawfully repudiated a contract of service by giving notice of dismissal which was too short to comply with the terms of the contract, the notice was not effective to terminate the contract unless the servant accepted it. 27. In the case of Hill vs. C A Parsons & Co. Ltd. (supra), it was held that when a master had unlawfully repudiated a contract of service by giving notice of dismissal which was too short to comply with the terms of the contract, the notice was not effective to terminate the contract unless the servant accepted it. It was pointed out in the said decision that ordinarily if a master insisted on the employment terminating on the day named in the notice despite the fact that notice was unlawful, the relationship of master and servant thereupon comes to an end for it was inconsistent with the confidential nature of relationship that it should continue contrary to the will of one of the parties. The rule is, however, according to the said decision, not inflexible and where a special circumstance existed, the court had power to grant declaration that the relationship still subsisted and the injunction to stop the master treating it as at an end. In the aforesaid case the plaintiff issued a writ against defendant, the master for wrongful dismissal and asked for an interim injunction restraining the defendant from treating the notice as having determined his employment. The court ultimately granted an injunction restraining the company from treating the notice as having determined the plaintiffs employment. 28. In my view, the said decision cannot have any application to the fact of the present case. Even in the fact of such case if the plaintiff prayed for injunction restraining the company from preventing him from joining service or performing his duty, the court could not grant such injunction against the company. Therefore, even if the termination of agreement in the case before us is held to be illegal and the agreement is presumed to be subsisting, the remedy of the defendant lies by filing appropriate suit for damages. But the said agreement cannot be enforced at the instance of the defendant by permitting it to publish its rating. 29. As indicated earlier, the defendant itself has admitted that it was not claiming that its rating is accurate. Under such circumstances, the plaintiff cannot be forced to accept the rating of the defendant even though it has made allegation of bias of the defendant towards non-banking financial companies. 30. 29. As indicated earlier, the defendant itself has admitted that it was not claiming that its rating is accurate. Under such circumstances, the plaintiff cannot be forced to accept the rating of the defendant even though it has made allegation of bias of the defendant towards non-banking financial companies. 30. I have already pointed out that there is no statutory bar of termination of a rating agency during the subsistence of an agreement; all that is necessary under law is that such programme must be rated by any recognized rating agency. Therefore, if the plaintiff decides to take assistance of another recognized rating agency in place of defendant, the defendant cannot stand in the way of the plaintiff. It can however claim damages for the loss it has suffered due to illegal termination of the agreement, if proved. 31. I thus find no substance in the contentions of Mr. Mitra. 32. On consideration of all the facts and circumstances of the instant case I am of the view that there should be an injunction in favour of the plaintiff in terms of prayer (a) of the application till the disposal of the suit. The application for vacating interim order filed by the defendant is dismissed. 33. In the facts and circumstances there will be however no order as to costs. Application dismissed.