A. K. SIKRI, J. ( 1 ) PENDING resolution of disputes between the parties by means of arbitration, as the contract contains arbitration clause, the petitioner has filed this petition seeking interim relief under Section 9 of the Arbitration and conciliation Act, 1996. The facts, as culled out from the petition, on which the interim relief is founded, are as follows: ( 2 ) THE petitioner is a joint venture of Country inns and Suites by Carlson Inc. , (CIS), a company organised and existing according to the laws of United States of America and chanakya Hotels Private Limited. CIS is a subsidiary of Carlson Companies Inc. , a company organised and existing in accordance with the laws of United States of america. The groups owns, manages and/or has given franchises for about 1200 hotels worldwide. Over a period of time CIS has developed a business system for providing the public with hotel services of a distinctive character and is the owner of a hotel system operating under the names Country Inns and suites by Carlson, Country Suites by Carlson. CIS is the owner of certain trademarks, trade names, service marks, copyrights, interior and exterior building deigns and specifications (including motif, decor and colour combination), slogans, logos and commercial symbols. The said business system and marks are invaluable intellectual properties of CIS, which have acquired worldwide reputation and goodwill. The mere existence of a hotel with the Marks and the business system is enough to tempt tourists and travelers to patronise it as they are assured of certain minimum standards, quality and uniformity. All CIS hotels worldwide have a distinctive look and character. In or about 1998, the respondent and CIS agreed to develop a hotel on the lines of Country Inn and Suites at the respondent s land at 7-A, Viman Nagar, nagar Road, Pune. Memorandum of understanding (MOU) dated 27th June, 1998 was entered into between CIS and the respondent herein. This MOU was to come into force upon fulfillment of certain conditions precedent stipulated therein. It was extended in March, 2000 where after it lapsed. ( 3 ) BEFORE the said MOU was entered into on 27th June, 1998, the petitioner was incorporated as joint venture company of the CIS and the respondent in or about 18th may, 1998. This MOU was to come into force upon fulfillment of certain conditions precedent stipulated therein. It was extended in March, 2000 where after it lapsed. ( 3 ) BEFORE the said MOU was entered into on 27th June, 1998, the petitioner was incorporated as joint venture company of the CIS and the respondent in or about 18th may, 1998. After the lapse of MOU between cis and the respondent in March, 2000, it was eventually negotiated and re-entered (revalidated) in May, 2000 between the petitioner i. e. joint venture of CIS and the respondent and the respondent. ( 4 ) ON the basis of this MOD, continuing from where CIS left, the petitioner independently entered into negotiations with the respondent for setting up the said CIS hotel in Pune. The respondent approached the petitioner for grant of a licence in its favour for running/ operating a CIS brand hotel at the said land using the business system and the marks at the said land. The petitioner s representatives visited the location and found that it was best suited to the requirement of the petitioner and would immensely improve the brand image of CIS to have a hotel in that location. Though the respondent raised the finance/ loans from SIDBI for construction of the said hotel, the loans were raised on the name and strength of its association with the petitioner as is clear from the respondent s letter dated 1st October, 1999 and SIDBI s letters dated 17th March, 2000 and 28th November, 2000. In the MOU dated 26th May, 2000 understanding arrived at between the parties was for developing a 65 room Country Inn and suites by Carlson at Pune. Thereafter, on or about 2nd June, 2001 the parties entered into a Territorial Licence Agreement (for short tla ). Some of the articles of this agreement were amended by a modification dated 27th june, 2001. According to the petitioner, this was not an agreement of lending of name alone and the essential features of the agreement would clearly reveal that the petitioner disclosed to the respondent of all its confidential information of manuals, policies, marks and the business system only because the petitioner was certain that a CIS brand hotel would be another hotel on that location for 10 years. It is the case of the petitioner that at the time of execution of the TLA on 2nd June, 2001, owing to financial problems of the respondent and its inability to get sidbi to disburse the loan, the construction work had come to a standstill. Nevertheless having regard to the unique location of the land and the petitioner s desire to build a CIS hotel only on that land, the petitioner stood by the respondent. The petitioner not only signed the said TLA but also in terms of article 8. 1 of the TLA, provided the respondent as also their Architect Mr. Anil Sharma with a written copy of the then current construction standards and specifications of CIS, with a clear stipulation that the building plans, specifications prepared" on behalf of the respondent shall have to be approved by the petitioner. The respondent, on the other hand, on the strength of the petitioner s association with the project and the name and goodwill of the petitioner, was able to raise finances. Right from 1998, uptil 2005 cis, the predecessor of the petitioner and then the petitioner stood by the respondent. The hotel which was to be opened on 31st october, 2002, did not open till April, 2005. In fact it has not been opened till date. The delay occurred only due to the mismanagement, lack of finances with the respondent and its non-performance of its obligation under the TLA. On the other hand, the petitioner performed its obligations under the TLA and disclosed to the respondent all its CIS confidential information respect of marks, business system, standards and specifications, operating manuals, policies etc. the representatives of the petitioner made several visit to the site and held discussions on how the hotel should be managed, operated and marketed. Training manuals of staff and employees were disclosed to the respondent. On 21st March, 2005 Mr. Sanjeev pahwa and Mr. Ranjan Bhattacharya of the petitioner went to the site where they were met by Mr. Anil Sharma, the architect of the respondent and Mr. Atui Bedi. On taking a round of the hotel and inspection of the property as well as the systems, the petitioner s team observed that there were many deficiencies and defects in the structure, interiors, systems and the facilities. Furthermore, mandatory approvals, permissions, licences from concerned authorities had also not been obtained. Atui Bedi. On taking a round of the hotel and inspection of the property as well as the systems, the petitioner s team observed that there were many deficiencies and defects in the structure, interiors, systems and the facilities. Furthermore, mandatory approvals, permissions, licences from concerned authorities had also not been obtained. The respondent has also not obtained insurance policies in terms of article 15. The hotel even though it gives a appearance of a CIS hotel and is identifiable as one does not conform to the standards and specifications and the said hotel could not be opened for commercial use in the state it was then in. Thus, after return from Pune, the petitioner wrote a letter dated 23rd March, 2005 to Mr. Anil Sharma with a copy endorsed to Mr. S. M. Puri and mr. Atui Bedi informing them that the hotel was not ready for operations and attached a list of deficiencies and approvals, permission etc. that were required to be rectified before the hotel could be opened. ( 5 ) IT was followed by letter dated 24th March, 2005 by Mr. Anil Sharma voicing the aforesaid shortcomings. However, no reply was given by the respondent to the said two letters. The respondent did not ever dispute the deficiencies but did not rectify the same either. Suddenly letter dated 8th April, 2005 was sent by the respondent to the petitioner seeking permission from the petitioner to operate the hotel and threatened the petitioner that on failure of such a permission, the respondent would start operation of the hotel to the exclusion of the petitioner. The petitioner responded vide letter dated 8th april, 2005 again pointing out the deficiencies, impressing that it had invested six invaluable years in the project and its name and goodwill was attached to the property; because of inordinate delay in opening the hotel the management had to be handed over to the petitioner so that its construction is completed in a timely fashion and the hotel is run by the petitioner after its completion. The petitioner also wrote a letter dated 12th April, 2005 to mr. Anil Sharma, Architect asking him as to how much time it would take to complete the hotel in conformity with the petitioner s standards and specifications. Mr. Anil Sharma replied that it would take only two months to do the needful. The petitioner also wrote a letter dated 12th April, 2005 to mr. Anil Sharma, Architect asking him as to how much time it would take to complete the hotel in conformity with the petitioner s standards and specifications. Mr. Anil Sharma replied that it would take only two months to do the needful. However, the respondent is refusing to do so dishonestly and deliberately and wants to operate the hotel to the exclusion of the petitioner. The TLA contains an arbitration agreement in article 20 as per which arbitration has to be as per the rules of the Indian Council of Arbitration. The petitioner has filed its statement of claim, nominated its arbitrator and also deposited the fee. Pending adjudication of the disputes, present petition is filed with the following reliefs: (a) Pass an order of injunction restraining the respondent from in any manner whatsoever either directly or indirectly operating the hotel until it has complied with the standards and specification given by the petitioner and has obtained a letter of approval by it. (b) pass an order of injunction restraining the respondent from in any manner whatsoever either directly or indirectly operating the hotel to the exclusion of the petitioner. (c) pass an order of injunction directing the respondent to complete the construction including interior of the hotel in confirmity with the standards and specifications provided by the petitioner and only after obtaining its written approval. (d) pass ad-interim ex-patter orders in terms of prayers (a) and (b) above, and (e) pass such further order (s) as may deem fit and proper in the facts and circumstances of the case. ( 6 ) THE submission of the learned senior counsel for the petitioner is that the respondent cannot be permitted to operate the hotel in breach of the TLA and to the exclusion of the petitioner having regard to the fact that: (a) The TLA is in force and is binding on the parties. (b) The respondent is admittedly in breach of the TLA, none of the deficiencies pointed out by the petitioner have been denied by the respondent nor have they been rectified. (c) The petitioner and its predecessor cis, has been waiting for this hotel to open since 1998 i. e. for the past almost 7 years. They have remained committed to this project despite the inordinate delay caused by the respondent. (c) The petitioner and its predecessor cis, has been waiting for this hotel to open since 1998 i. e. for the past almost 7 years. They have remained committed to this project despite the inordinate delay caused by the respondent. For 7 years they waited only for this hotel to open and for that performed all their obligations under the TLA. To show their commitment under the TLA, they did not enter into any negotiations for developing any other hotel in Pune. (d) In performance of the TLA, the petitioner has irreversibly altered its position having disclosed confidential information, intellectual property, marks and business system of CIS to the respondent, which the respondent has irreversibly absorbed. (e) The respondent has absorbed the petitioner s intellectual property, confidential information, marks and business system and has built the hotel. The hotel now as it stands gives an appearance of a CIS hotel. However, the respondent has deliberately stopped short of strictly conforming tp the standards and specifications of the petitioner/cis. NOW when only two months work is required to finish the hotel and to start operations the respondent is refusing to do so, without any reason or justification. The respondent candidly admits that it is in breach of the TLA and refuses to perform it. (f) The deficiencies pointed out by. the petitioner will take only two months to be rectified which the respondent is dishonestly refusing to do even though under the TLA he is bound to do so. (g) The respondent has made structural, architectural, designs etc. changes, which under article 7. 6 of the TLA he could not have done. (h) The operation of the hotel in its present state, besides being a breach of the TLA is also illegal in as much as approvals, licenses and permissions from the concerned authorities have not been obtained. No insurance has also been taken. The operation of the hotel will not only impair the goodwill of the petitioner but also pose a risk to its customers. (i) Valuable intellectual properties of the petitioner have become irretrievably absorbed in the hotel project and the petitioner has stood committed to the said project. The respondent cannot breach the TLA and at the same time take benefit under it by using the intellectual properties and confidential information of the petitioner to the petitioner s exclusion. (i) Valuable intellectual properties of the petitioner have become irretrievably absorbed in the hotel project and the petitioner has stood committed to the said project. The respondent cannot breach the TLA and at the same time take benefit under it by using the intellectual properties and confidential information of the petitioner to the petitioner s exclusion. (j) The respondent has illegally and mala fide used the name, reputation and goodwill of the petitioner and has exploited the petitioner s patience to set up a CIS look alike hotel and after having done so, now seeks to illegally and wrongfully exclude the petitioner from the profits and the business opportunity which the petitioner is entitled to enjoy for a period of at least 10 years from the date of opening. (k) Petitioner/cis has also widely advertised and popularised the hotel and informed its customers and its business associates and travel agents etc. that a CIS hotel is opening in Pune shortly. The petitioner has also published this information in the Caisons promotional magazines and other sales material including brochures, calendars etc. (I) Under no circumstances would the petitioner have parted with, inter alia, its intellectual properties including marks and business systems, and confidential information, data, policies, manuals and strategies, expended its time, effort and money and waited for an unduly long period since 26th May, 2000, had it the slightest idea that the petitioner will not be associated with the hotel for a period of atleast ten years as stipulated in the TLA. The petitioner has a legitimate expectation to be associated with the hotel for atleast 10 years. (m) The location of the land on which the hotel has been built is incomparable. There is no other land of equivalent location within the vicinity of the said land. It will cause loss of unique business opportunity already suffered by the petitioner. (n) Responsibility that the petitioner owes to its shareholders and to CIS. (o) Standing of the petitioner vis-a-vis the Carlson group and the loss of face, reputation and goodwill it will suffer visa-vis them and the public at large. (p) business compulsion of the petitioner and the CIS group to urgently open a cis hotel in Pune. The petitioner will either have to abandon its plans to enter Pune or will have to start from a scratch; and (q) In terms of Article 12. (p) business compulsion of the petitioner and the CIS group to urgently open a cis hotel in Pune. The petitioner will either have to abandon its plans to enter Pune or will have to start from a scratch; and (q) In terms of Article 12. 4 of the TLA, respondent cannot commence operation of the hotel without obtaining prior written approval of the petitioner which the respondent has illegally sought to do by threatening the petitioner and that it is going to commence operation of the hotel in its present site. The operation of the hotel in its present state will be illegal, breach of the TLA, impair the goodwill of the petitioner and being disrepute to the hotel. The petitioner has not till date, given written approval to the respondent to commence operations of the hotel. ( 7 ) FOR the proposition that it has legitimate expectation to be associated with the operation of the hotel, reliance is placed on the judgment of this court in the case of softline Media Ltd. Vs. Delhi Transport corporation reported as 2002 II AD (Delhi) 849. ( 8 ) IT is further submitted that the TLA contains negative covenants in article 12. 4, article 7. 6, article 3. 2, article 7. 10, article 8. 4, article 10. 5, article 11. 1 and article 11. 2 as well as article 21. 5 and, therefore, the petitioner has right to enforce those negative covenants and would thus be entitled to the nature of injunction prayed for. In support, reliance is placed on the judgment of the supreme Court in the case Gujrat Bottling company Ltd. Vs. Coca Cola Co. Ltd. reported as (1995) 5 SCC 545 and particularly the following observations: approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 of Rule 2 of the Code of Civil procedure, but also in respect of the party approaching the court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings. 49. It is contended by Shri Nariman and, in our opinion, rightly, that the gbc, having itself acted in vjolation of the terms of agreement and having breached the contract, cannot legally claim that the order of injunction be vacated particularly as the GBC itself is primarily responsible for having brought about the state of things complained of by it. Since GBC has acted in an unfair and inequitable manner in its dealing with Coca Cola, there was hardly any occasion to vacate the injunction order and the order passed by the bombay High Court cannot be interfered with not even on the ground of closure of factory, as the party responsible, prima facie, for breach of contract cannot be permitted to raise this grievance. " ( 9 ) IT is submitted that having regard to the provisions of Section 42 of the Specific Relief act, grant of such an injunction is permissible. ( 10 ) IN reply, case set up by the respondent is that the petitioner is not entitled to any interim relief in view of the following considerations: (a) Under clause 1. 5 of the agreement, the respondent had to open the hotel by 31st October, 2002. However, under clause 1. 5 itself, in case the hotel does not start on the said date, then the petitioner is not obliged to comply with the agreement and the respondent has no right to enforce the agreement. The petitioner, however, can grant a waiver/extension of the opening date in writing upon the respondent agreeing to comply with the additional conditions as stipulated in the said written waiver. Clause 1. 5 of the agreement is as follows:-"1. 5 The licensee confirms that the opening date, as defined in article 23 of the Agreement is October 31,2002. The petitioner, however, can grant a waiver/extension of the opening date in writing upon the respondent agreeing to comply with the additional conditions as stipulated in the said written waiver. Clause 1. 5 of the agreement is as follows:-"1. 5 The licensee confirms that the opening date, as defined in article 23 of the Agreement is October 31,2002. Based on the election of the opening date by the licensee, the parties have agreed that (a) if the hotel does not open by the opening date elected by the licensee aforesaid, then, the licensor shall not be obliged to comply with this agreement, and the licensee shall have no right to enforce this agreement for the first nine months beyond the opening date elected by the licensee that the hotel remains unopened, unless the licensee pays the licensor, a deferred fee equal to US $1500 per month, within seven days of the end of each month of delay, and (b) if the hotel does not open within nine months of the opening date elected by the licensee, the licensee shall have no right to enforce this agreement even on the payment of the monthly deferred fees agreed to herein unless waiver is granted in writing by the licensor and the licensee agreeing to comply with such additional conditions that the licensor in its absolute discretion may impose. " (b) The hotel was constructed by the respondent from its own resources and on its own land. There is no contribution of the petitioner in the construction of the hotel either financial or otherwise. The loans were taken by the respondent from SIDBI on the basis of the net worth of Mr. S. M. Puri who is an American citizen who has also furnished his personal guarantee. The contention that the loan was granted in view of the use of the petitioner s name is wholly devoid of any merit, because a financial institution always looks at the financial strength of the party taking the loan and not as to under what name the business would be run. The whole construction cost of the project was approximately Rs. 11 crores and the cost of the land itself is about Rs. 1. 2 crores. Admittedly, the petitioner has not invested even a single rupee towards the construction of the project or even otherwise. The whole construction cost of the project was approximately Rs. 11 crores and the cost of the land itself is about Rs. 1. 2 crores. Admittedly, the petitioner has not invested even a single rupee towards the construction of the project or even otherwise. (c) In view of the delay in the disbursement of the loan by SIDBI the progress of the project regarding construction of the hotel was slow. In this regard, the respondent filed a suit before the Pune Civil Court against SIDBI for the delay caused. In any case the respondent has repaid the entire loan of SIDBI along with all interests and penalties imposed from its own funds. ( 11 ) THOUGH the MOU was extended from time to time as per clause 1. 5 of the agreement, last extension was given on 23rd april, 2004 which was upto June, 2004 and there is no extension of agreement after June, 2004. Therefore, after the said date the petitioner is not obliged to comply with the terms and conditions. The respondent did not apply for further extension after June, 2004 nor the petitioner granted any extension. The agreement, therefore, stood terminated by efflux of time attracting clause 11. 1 of the agreement. The respondent disputed the fact that any specifications or designs were ever given to the respondent by the petitioner. Further, in any case, admittedly, the petitioner has tried to impose ah onerous and an expropriatory term in exercise of clause 1. 5 of the agreement to grant extension of the agreement to a further date by asking for the handing over of the entire management of the hotel. By exercising this option under clause 1. 5, the petitioner itseif admitted that the agreement stood expired prior to 12th April, 2005 and had not been extended and any extension was only subject to the condition of handing over the management. Since under clause 1. 5 of the agreement any further conditions imposed by the petitioner has to be first agreed upon by the respondent and only then the extension would apply, the respondent not agreeing to such an extraneous, expropriatory, illegal and onerous term, the agreement stood expired, and there being no obligation on the petitioner to comply with agreement, the respondent is free to start the hotel without using the petitioner s name. It is submitted that the petitioner is only trying to misuse the terms of the agreement to somehow grab and hijack the entire hotel without spending even a single rupee. It is pertinent to mention that when the hotel has become ready for operations, suddenly the petitioner has started raising illegal objections. The malafides of the petitioner are ex facie and therefore, the petitioner is not entitled to any equitable relief in the present petition under Section 9 of the arbitration and Conciliation Act, 1996. The respondent has all the permissions and approvals to start the hotel operation but for the injunction by this court. The respondent is incurring huge losses towards salaries of employees and maintenance of the hotel without any revenue. The respondent being the owner of the property has the fundamental right to use its own property for its benefit and income. ( 12 ) IT is also submitted that seeking to get stay order, the petitioner is forcing the respondent to remain idle by claiming certain illegal and onerous, so called negative covenants under the TLA which cannot be allowed in view of the judgment of the supreme Court in the case of Gujarat bottling Company Ltd. and others Vs. Coca Cola Co. Ltd. and others reported as air 1995 SC 2372. The petitioner has failed to show any specifications having been provided to the respondent. In any case, none of the so-called designs of the petitioner are registered and, therefore, there is no protectable interest created in them and no injunction can be granted on this also in view of the following judgments of this court: (i) Rotela Auto Components (P) Ltd. and another Vs. Jaspal Singh and others , 2002 III AD (Delhi) 504. (ii) M/s Niky Tasha India Pvt. Ltd. Vs. M/s Faridabad Gas Gadgets pvt. Ltd. AIR 1985 Delhi 136 ( 13 ) IT is also explained by the respondent that under clauses 19. 3 and 19. 4 of the agreement, the petitioner had the right to inspect the construction of the hotel at any point of time and could make objections to the respondent regarding the construction standards and specifications not having being complied with. In fact, the petitioner has been inspecting the hotel through its licensed architect as well as itself throughout the construction of the hotel. The mock up room was in fact approved in August, 2003. In fact, the petitioner has been inspecting the hotel through its licensed architect as well as itself throughout the construction of the hotel. The mock up room was in fact approved in August, 2003. However, the petitioner for the first time only in March, 2005 made objections which are absolutely perfunctory in nature, only with a malafide objective of stalling of the opening of the hotel. The hotel is complete in all respects and all approvals have been obtained by the respondents to open the hotel. The petitioner has suggested changes in the furniture, and other structural changes by making these objections. These objections which have been made only on 23rd March, 2005 are addressed to the architect and only a copy has been sent to the respondent. It is surprising that on 24th March, 2005 itself the architect also for the first time confirms the objections raised by the petitioner. The architect has most malafidely and in collusion with the petitioner has made extraneous comments. The architect is acting hand in glove with the petitioner only to somehow stall the opening of this hotel and so that the petitioner could make an illegal claim on the hotel. Under clause 1. 5 of the TLA, the respondent cannot enforce any of the conditions under the agreement against the petitioner because the agreement has admittedly not been extended after June, 2004. ( 14 ) IN nutshell, the submissions of the learned senior counsel for the respondent are: (a) An agreement which is terminable in nature cannot be enforced under section 14 (1) (c) of the Specific Relief act and further under Section 41 (e) of the said Act, an injunction cannot be granted to prevent breach of the contract, the performance of which would not be specifically enforced, (b) Clause 9. 4 of the TLA provides for damages in case of breach through the respondent denies any breach. Submission is that even if it is presumed to be so, the petitioner has an adequate remedy and can be compensated in terms of money and, therefore, not entitled to injunction. For this proposition, he relied upon the following judgments: (i) Indian Oil Corporation Vs. Amritsar Gas Service and others, (1991) 1 SCC 533 . (ii) Usha Intercontinental Vs. Omicron Electronics Gmbh 2004 vii AD (DELHI) 613 = 114 (2004) DLT 740. (iii) Rajasthan Breweries Ltd. Vs. For this proposition, he relied upon the following judgments: (i) Indian Oil Corporation Vs. Amritsar Gas Service and others, (1991) 1 SCC 533 . (ii) Usha Intercontinental Vs. Omicron Electronics Gmbh 2004 vii AD (DELHI) 613 = 114 (2004) DLT 740. (iii) Rajasthan Breweries Ltd. Vs. The stroh Brewery Company 2000 VI AD (Delhi) 741. (c) The petitioner could not invoke the provisions of Section 42 of the Specific relief Act for enforcement of the negative covenants in the agreement in the basis of affirmative covenant therein. According to the respondent, the petitioner has failed to show any affirmative covenant in the agreement in issue. In any case, under clause 1. 5 of the agreement once the opening date is not extended by the petitioner itself, there is no obligation on the petitioner to comply with the agreement. Once the obligation to comply with the agreement disappears in the case of the petitioner, the so-called negative covenants would also become unenforceable against the respondent and if any injunction is granted in respect thereof then it would reduce the respondent to idleness and would amount to corporate slavery. The respondent has emphasised that it is not seeking to use the names, marks, business systems, business plans of the petitioner and would be running the hotel on their own. In this regard, reliance is placed upon the following observations of the Supreme Court in the case of Gujarat Bottling company Ltd. (supra) :"45: In the matter of grant of injunction, the pra ctice in England is that where a contract is negative in nature, or contains an express negative stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is equitable and thus in principle a discretionary one and a defendant cannot resist an injunction simply on the ground that observance of the contract is burdensome to him and its breach would cause little or no prejudice to the plaintiff and that breach of an express negative stipulation can be restrained even though the plaintiff cannot show that the breach will cause him any loss. (See: Chitty on Contracts 27th Edn. Vol. I, General Principles, para 27-040 at p. 1310; Halsbury s Laws of england, 4th Edn. Vol. 24, para 992 ). (See: Chitty on Contracts 27th Edn. Vol. I, General Principles, para 27-040 at p. 1310; Halsbury s Laws of england, 4th Edn. Vol. 24, para 992 ). In india Section 42 of the Specific Relief act, 1963 prescribes that notwithstanding anything contained in clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express of implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. This is subject to the proviso that the plaintiff has not failed to perform the contract so far as it is binding on him. The court is, however, not bound to grant an injunction in every case and an injunction to enforce a negative covenant would be refused if it would indirectly compel the employee either to idleness or to serve the employer. 46. The grant of such an interlocutory injunction during the pendency of legal proceedings is a matter requiring the existence of discretion of the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case (ii) whether the balance of convenience is in favour of the plaintiff, and (iii) whether the plaintiff would suffer irreparable injury if this prayer for interlocutory injunction is disallowed. 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 or injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory 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 protection 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 need for such protection 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 most weight one need against another and determine where the balance of convenience lies. (See: Wander Ltd. Vs. Antox India p. Ltd. 1990 (Supp) SCC 727 at Pp. 731-32 ). In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial. " it is argued that in these circumstance, any order of injunction against the respondent from carrying on its business of running the hotel without even using the petitioner s marks would be highly unjustified would result in irreparable injury to the respondent and would curtail the fundamental right of the respondent of allowing them to use their own property for their own use. It is also submitted that in these circumstances, the petition deserves to be dismissed along with costs. In support, reliance is placed upon the judgment of this court in the case of usha Drager Private Ltd. Vs. Draegerwerk Aktiengesellschaft reported as 2005 II AD (Delhi) 518. It is also pleaded that the petitioner does not any equity in its favour for grant of an equitable relief under Section 9 of the Arbitration and Conciliation Act, 1996 as entire investment to the tune of Rs. 13 crores is made by the respondent alone and the claim of the petitioner that it has provided specifications is totally ill founded. " ( 15 ) I may state at the outset that the fundamental aspect which is to be borne in mind is that we are dealing with petition under section 9 of the Arbitration and Conciliation act, 1996 and, therefore, entire matter has to be looked into from the angle as to what should be the interim arrangement between the parties. The parties entered into agreement dated 2nd June, 2001, namely, tla and now the disputes have arisen between the parties arising out of the said tla. The matter will have to be gone into, in depth, in those arbitration proceedings. The parties entered into agreement dated 2nd June, 2001, namely, tla and now the disputes have arisen between the parties arising out of the said tla. The matter will have to be gone into, in depth, in those arbitration proceedings. The admitted position which emerges is that the land in question on which the hotel is built, belongs to the respondent. It is also not disputed that the entire financial arrangement for construction of the said hotel is borne by the respondent either from its own resources or by taking loan from financial institution. Though the petitioner s case is that financial institution has sanctioned the loan because of the petitioner s association with the respondent, fact remains that loan is sanctioned in the name of the respondent and it is the sole responsibility of the respondent to repay the said loan. The construction cost of the project is, according to the respondent, rs. 11 crores. Therefore, entire hotel property, namely, land as well as construction thereon exclusively belongs to the respondent. As per the petitioner s averments, it has provided the technical knowhow in the form of drawings, designs/ consultancy etc. on the basis of which hotel is built and the hotel which stands now, gives an appearance of of a CIS hotel. This is disputed by the respondent. It, however, cannot be denied that some technical support is obviously provided by the petitioner pursuant to the TLA. However, only because of this reason can it be said that the respondent should not be allowed to run the hotel if the parties have otherwise fallen apart. Case of the petitioner is that the respondent has made structural, architectural and design changes and, therefore, even according to the petitioner the hotel is not made strictly in conformity with the standard on which CIS hotels are constructed. The respondent wants to run the hotel itself. Even if there was no dispute and the hotel was strictly built according to CIS standards and hotel had run under the petitioner s banner, the respondent could always terminate the agreement at any time under the TLA and start operating the hotel of its own. This is because the agreement is determinable in nature. Even if there was no dispute and the hotel was strictly built according to CIS standards and hotel had run under the petitioner s banner, the respondent could always terminate the agreement at any time under the TLA and start operating the hotel of its own. This is because the agreement is determinable in nature. If that could be the position even after the start of hotel as Carlson hotel, I am of the view that if the respondent wants to start the hotel, from the beginning itself, without the association of the petitioner, it can do so. The petitioner, for the alleged services rendered and for the alleged breach of contract on the part of the respondent, can always sue for damages. ( 16 ) IN view of Sections 14 and 34 of the specific Relief Act, injunction cannot be granted. These provisions have come up for consideration before the courts number of times. Some of these judgments are taken note of hereinafter: (i) Rajasthan Breweries Ltd. The Stroh brewery Co. , 2000 VI AD (DLEHI) 741"para 13: As the application by the appellant was filed under Section 9 of the Act prior to commencement of the arbitration proceedings, it is not disputed that the Court is empowered to deal with the same and exercise such power for making orders as it has for the purposes of and in relation to any proceedings before it. The closing words of Section 9 of the Act empowering the Court to deal with such applications for interim measures have on the face of it to be dealt with in accordance with the law applicable to any proceedings taken out before such a court. On the ratio of the decision of the Supreme Court in sumitomo Heavy Industries Ltd. Vs. ONGC Ltd. AIR 1998 S. C. 825 the application will be governed by the law of India and not by the governing law. However, the principles of equity governing specific performance are almost same in Indian law and English law. The discretion of the Courts of england while enforcing the specific performance of a contract is subject to the same constraints as are applicable in the Courts in India. However, the principles of equity governing specific performance are almost same in Indian law and English law. The discretion of the Courts of england while enforcing the specific performance of a contract is subject to the same constraints as are applicable in the Courts in India. Under the English law of specific performance of contractual obligation is available only in equity and is subject to various restrictions, which have been explained by G. H. Treitel in his work "the Law of contracts" 6th Edition pages 764 to 775 as follows:" (i) Specific performance will not be ordered where damages are adequate remedy. (ii) If the party applying for relief is guilty of a breach of the contract or is guilty of wrongful conduct. (iii) If the Contract involves personal service. (iv) If the contract requires constant supervision. (v) If the party against whom specific performance is sought is entitled to terminate the contract. " at page 775, it is stated in the aforementioned work :- "if the party against whom specific performance is sought is entitled to terminate the contract, the order will be refused as the defendant could render it nugatory by exercising his powers to terminate. This principle applies whether the contract is terminable under its express terms or on account of the conduct of the party seeking specific performance. "para 14: The effect of breach of a contract by a party seeking to specifically enforce the contract under the Indian law is enshrined in Section (c)read with section 41 (e) of the Specific Relief act, 1963. Clause (e) of Section 41 of the Specific Relief Act provides that injunction cannot be granted to prevent the breach of contract, the performance of which would not be specifically enforced. Clause (c) of Section 41 enumerates the nature of contracts, which could not be specifically enforced. Clause (c)to sub-section (1) of Section 14 says that a contract which is in its nature determinable cannot be specifically enforced. Learned Single judge thus was justified in saying that if it is found that a contract which by its very nature is determinable, the same not only cannot be be enforced but in respect of such a contract no injunction could also be granted and this is mandate of law. Learned Single judge thus was justified in saying that if it is found that a contract which by its very nature is determinable, the same not only cannot be be enforced but in respect of such a contract no injunction could also be granted and this is mandate of law. This, however, is subject to an exception, as provided in Section 42 that where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstances that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. Para 18. In Indian Oil Corporation ltd. Vs. Amritsar Gas Service and others, 1991 (1) S. C. C. 533, the supreme Court had an occasion to consider the terms of agreement of distributorship. The agreement could be terminated in accordance with the terms of the agreement as per clauses 27 and 28 thereof. The Arbitrator had also held the distributorship to be revocable in accordance with clauses 27 and 28 of the agreement. The distributorship agreement was held for indefinite period, namely, till the time it was terminated in accordance with the terms contained therein. It was the case of the respondent therein that since the contract had not been terminated in accordance with clause 27 thereof, under which termination had been made, the firm was entitled to continuance of distributorship in the special circumstances of the case, which contention was upheld by the Arbitrator. Supreme Court set aside the award of the arbitrator on the ground that there is error of law apparent on the face of the record and grant of relief in the award cannot be sustained. It was held:-"the arbitrator recorded finding on issue no. 1 that termination of distributorship by the appellant Corporation was not validly made under clause 27. Thereafter, he proceeded to record the finding on issue No. 2 relating to grant of relief and held that the plaintiff-respondent 1 was entitled to compensation flowing from the breach of contract till the breach was remedied by restoration of distributorship. Restoration of distributorship was granted in view of the peculiar facts of the case on the basis of which it was treated to be an exceptional case for the reasons given. Restoration of distributorship was granted in view of the peculiar facts of the case on the basis of which it was treated to be an exceptional case for the reasons given. The reasons given state that the Distributorship agreement was for an indefinite period till terminated in accordance with the terms of the agreement and, therefore, the plaintiff-respondent No. l was entitled to continuance of the distributorship till it was terminated in accordance with the agreed terms. The award further says as under:-"this award will, however, not fetter the right of the defendant Corporation to terminate the distributorship of the plaintiff in accordance with the terms of the agreement dated April 1, 1976, if and when an occasion arises. " this finding read along with the reasons given in the award clearly accepts that the distributorship could be terminated in accordance with the terms of the agreement dated April 1,1976, which contains the aforesaid clauses 27 and 28. Having aid so in the award itself, it is obvious that the arbitrator held the distributorship to be revokable in accordance with clauses 27 and 28 of the agreement. It is in this sense that the award describes the Distributorship agreement as one for an indefinite period, that is, till terminated in accordance with clauses 27 and 28. The finding in the award being that the distributorship Agreement was revokable and the same being admittedly for rendering personal service, the relevant provisions of the specific Relief Act were automatically attracted. Sub-section (1) of Section 14 of the Specific Relief Act specifies the contracts which cannot be specifically enforced, one of which is a contract which is in its nature determinable. In the present case, it is not necessary to refer to the other clauses of sub-section (1) of Section 14, which also may be attracted in the present case since clause (c) clearly applies on the finding read with reasons given in the award itself that the contract by its nature is determinable. This being so granting the relief of restoration of the distributorship even on the finding that the breach was committed by the appellant-Corporation is contrary to the mandate in Section 14 (1) of the Specific Relief Act and there is no error of law apparent on the face of the award which is stated to be made according to the law governing such cases. The grant of this relief in the award cannot, therefore, be sustained. The facts of the present case are identical to those in aforementioned decision of the Supreme Court in as much as the agreements in the instant case are also terminable by the respondent on happening of certain events. In Indian Oil Corporation s case (supra) also agreement was terminable on happening of certain events. Question that whether terminatio. , is wrongful or not; the events have happened or not; the respondent is or is not justified in terminating the agreements are yet to be decided. There is no manner of doubt that the contracts by their nature determinable. In M/s Classic Motors Ltd. Vs. M/s maruti Udyog Ltd. , 19971 AD (DELHI) 190 = (1997) 65 D. LT. 166 relying upon number of decisions, learned Single judge of this court rightly observed:-"in view of long catena of decisions and consistent view of the Supreme Court, i hold that in private commercial transaction the parties could terminate a contract even without assigning any reasons with a reasonable period of notice in terms of such a Clause in the agreement. The submission that there could be no termination of an agreement even in the realm of private law without there being a cause or the said cause has to be valid strong cause going to the root of the matter, therefore, is apparently fallacious and is accordingly, rejected. " (ii) Crompton Greaves Ltd. Vs. Hyundai Electronics Industries co. Limited and others 76 (1998) DLT 733 (iii) National Auto Impex Vs. M/s autocop (India) Pvt. Ltd. and Ors. , 2001 VI AD (DELHI) 490 (iv) Indian Oil Corporation Ltd. Vs. Amritsar Gas Service and others (1991) 1 SCC 533 (v) Alfa Laval (India) Ltd. Vs. J. K. Corp. Ltd. and Anr. 20001 AD (DELHI) 974. ( 17 ) THE effect of the stay order would be that the hotel is not allowed to start its operation. If ultimately the respondent succeeds then the respondent would be put to unnecessary loss and the time gone by would be wasted without putting the clock back. On the other hand, it is ultimately held that the petitioner had right to run the management of hotel for specified period such an award can be passed in favour of the petitioner or the petitioner can be compensated for depriving it from doing so. On the other hand, it is ultimately held that the petitioner had right to run the management of hotel for specified period such an award can be passed in favour of the petitioner or the petitioner can be compensated for depriving it from doing so. ( 18 ) LEARNED senior counsel for the respondent, in these circumstances, is right in his submission that the petitioner cannot invoke the provisions of Section 42 of the specific Relief Act. There is a dispute as to whether the contract is still in existence or it has come to an end by efflux of time. The respondents, submission that once the opening date is not extended by the petitioner under clause 1. 5 of the agreement there is no obligation on the part of the petitioner to comply with the agreement. The circumstance of the case, therefore, do not warrant exercise of any discretionary jurisdiction in favour of the petitioner. The principle laid down by the Supreme Court in gujrat Bottling Company Ltd. (supra) is that relief by way of interlocutory injunction, is granted to mitigate the risk or injustice to the petitioner during the period before that uncertainty could be resolved. The object of the interlocutory 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 protection 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. ( 19 ) VIEWED from this angle, the scale tilts in favour of the respondent. The position is almost akin to the situation that was in the case of Usha Drager Private Ltd. (supra) and following the judgment of the Supreme court in the case of Gujrat Bottling Company ltd. (supra), this court refused the interim injunction. The circumstances suggested by the petitioner in its favour, even put together, would not outweigh the balance of convenience which is in favour of the respondent. 20. The injunction order dated 21st April, 2005 is accordingly vacated and the petition is dismissed. (supra), this court refused the interim injunction. The circumstances suggested by the petitioner in its favour, even put together, would not outweigh the balance of convenience which is in favour of the respondent. 20. The injunction order dated 21st April, 2005 is accordingly vacated and the petition is dismissed. However, it is made clear that the observations in this judgment are tentative and will not be binding on the arbtiral tribunal and the abitral tribunal shall be within its power to consider and go into the entire gamut of the disputes to enable it to effectively adjudicate upon the disputes between the parties. There shall, however, be no orders as to costs.