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2008 DIGILAW 210 (CAL)

Universal Petrochemicals Limited v. B P Plc

2008-02-18

ASHIM KUMAR BANERJEE, TAPAS KUMAR GIRI

body2008
Judgment : ASHIM KUMAR BANERJEE, J. (1.) LEARNED Single Judge in his judgment and order discussed in detail not only the facts of the case but also the evidence adduced before him. His Lordship also discussed the cases cited by the parties before him in detail. In appeal no new case was cited before us. The parties reiterated their contentions which they had urged before His lordship. Learned counsel also cited those cases which had already been cited before his Lordship. Hence, we do not like to discuss all those cases once again save and except a few where ever we feel it necessary. (2.) UNIVERSAL Petro-Chemicals Limited (hereinafter referred to as "universal"), the appellant above named at all material times dealt with Petro-Chemical products including lubricant mainly used in automobiles. (3.) ARAL Aktiengesellschaft (hereinafter referred to as "aral") the respondent no. 3 was also a company established under the appropriate laws of Germany dealing with similar type of products. B. P. plc being the respondent No. 1 was also a company dealing with similar products established under the appropriate laws of England also carrying on business in India. Castrol India Limited, the respondent no. 2 was an Indian company dealing with identical product. (4.) UNIVERSAL entered into an agreement with Aral in 1994 to the effect that Aral would provide technology for production of lubricants in India. They would also supply concentrate, they would allow Universal to manufacture and market the lubricant with the brand name Aral. This agreement was subject to the approval of the Central government through Reserve Bank of India as it would involve payment in foreign currency as and by way of consideration as Aral was to get royalty for providing technology as also allowing their brand name to be used in India by Universal. (5.) PARTIES approached the Reserve Bank of India who ultimately approved the agreement, however, with certain modifications which we would be discussing little later. (6.) IN 2002 the agreement was renewed. Reserve Bank of India also gave its permission with modified conditions stipulated therein. It was alleged in the plaint filed by universal that initially there was no problem on the working of both the parties being universal and Aral until Arals ultimate ownership was transferred to B.P. PLC. (6.) IN 2002 the agreement was renewed. Reserve Bank of India also gave its permission with modified conditions stipulated therein. It was alleged in the plaint filed by universal that initially there was no problem on the working of both the parties being universal and Aral until Arals ultimate ownership was transferred to B.P. PLC. The controlling block of shares in Aral was owned by another company called Veva Oil which was taken over by B.P. PLC and thus B.P. PLC plc got the control of Aral in 2004. Castrol was an Indian company dealing with the identical product and as such castrol was thus a competitor of Universal in India. (7.) B.P. PLC acquired major share in Burma Castrol Holding Limited the holding company of Castrol India Limited and thus became in effect the holding company of castrol India Limited. Aral was the wholly owned subsidiary of Veva Oil. Veva Oil was subsequently taken over by B.P. PLC. Hence, in the process B.P. PLC got virtual control over Castrol as well as Aral. (8.) BY the above process of transfer of controlling block of shares in Aral B.P. PLC got control over Aral who was providing technology to Universal to manufacture lubricant in India and market the same. (9.) UNIVERSAL alleged that Castrol through B.P. PLC put pressure on Aral to break the relationship. Hence, without any reason Aral severed relationship by terminating the contract. Universal sued B.P. PLC, Castrol and Aral. Universal alleged conspiracy as against B.P. PLC and Castrol coercing Aral and compelling them to terminate the agreement. Universal blamed Aral for wrongful termination. (10.) THERE had been initial fight at the interlocutory stage upto the Apex Court level. We, however, do not feel it relevant to discuss the same herein. (11.) THE suit was finally heard by the learned Single Judge. Before the learned Single judge mainly two issues were raised ? (i) Whether there had been any conspiracy hatched by B. P. plc and Castrol inducing and/or coercing Aral to break the contract and (ii) whether the termination of the contract was wrongful or not. (12.) AS regards relief Universal, inter alia, claimed perpetual injunction restraining Aral from dealing with their brand in India through anybody else except Universal or providing technology to any other party in India and a decree for specific performance compelling Aral to continue with the relationship till 2009. (12.) AS regards relief Universal, inter alia, claimed perpetual injunction restraining Aral from dealing with their brand in India through anybody else except Universal or providing technology to any other party in India and a decree for specific performance compelling Aral to continue with the relationship till 2009. (13.) ON behalf of Aral, one Mr. Hansbrunholt was examined. He principally expressed his helplessness. He expressed his satisfaction on the working of Universal with Aral. He also confessed that he was against termination. However, he had to do it at the instance of his parent company being B. P. PLC. (14.) RELYING on the evidence of Hansbrunholt, Universal contended before His Lordship that the termination was wrongful as was understood by Aral through Hansbrunholt. The conspiracy was proved from the said evidence as despite objection of Aral they had to terminate the contract at the instance of B.P. PLC being the owner of Castrol a competing brand in India. Hence, Universal was entitled to perpetual injunction. (15.) ON specific performance it was argued that technology had already been provided. There was nothing further to be done which would involve continuous monitoring of the contract through court. Hence, they were entitled to specific performance as the fetter under Section 14 of the Specific Relief Act would not apply in the instant case. (16.) ON behalf of the B.P. PLC and Castrol it was argued that since Castrol was virtually owned by B.P. PLC there could not be any conspiracy between B.P. PLC and Castrol. Similarly, B.P. PLC was having controlling block of shares in Aral at the relevant time. Hence, B.P. PLC plc was entitled to manage the affairs of Castrol as well as Aral including taking decision on behalf of Aral. Hence, alleged conspiracy was far from truth. (17.) ARAL contended before His Lordship that as per the agreement the parties to the agreement were entitled to terminate the contract with six months prior notice which was given in the instant case. Such condition was not altered by the Reserve Bank of india. Hence, the said condition was binding upon the parties. Aral invoked the said clause and terminated the agreement. Hence, the termination was valid and no relief could be given to Universal. (18.) LEARNED Single Judge accepted the contention of Universal to the extent that the termination was wrongful. Such condition was not altered by the Reserve Bank of india. Hence, the said condition was binding upon the parties. Aral invoked the said clause and terminated the agreement. Hence, the termination was valid and no relief could be given to Universal. (18.) LEARNED Single Judge accepted the contention of Universal to the extent that the termination was wrongful. His Lordship accepted the interpretation of the agreement advanced by Universal to the effect that option to the parties for six months termination as written in the original agreement stood modified by the supplementary agreement as Reserve Bank of India did not permit the parties to terminate agreement in the mid way and fixed the term of the contract as would appear from their approval. Learned Judge rejected the interpretation of Aral on the construction of agreement. (19.) AFTER holding that the termination was wrongful His Lordship passed a decree of perpetual injunction restraining Aral from providing technology to any other party in india. His Lordship rejected the contention of Aral that since compensation was an adequate remedy order of injunction should not have been passed. (20.) ON the specific performance His Lordship, however, rejected the interpretation given by Universal. According to His Lordship it came within the four corners of Section 14 and as such specific performance was not possible as it would involve day to day monitoring of the contract by the court which was impossible. (21.) BEING aggrieved by and dissatisfied with the judgment and decree of the Learned single Judge Universal preferred the instant appeal only to the extent where His (22.) LORDSHIP rejected their prayer for specific performance as also appropriate relief as against B. P. plc and Castrol on the conspiracy. (23.) ARAL filed a cross objection against the part of the decree where His Lordship granted perpetual injunction as against Aral. (24.) WE heard the parties at length in the appeal. Learned counsel appearing for the parties relied on the cases cited before His Lordship and discussed in the judgment and decree impugned. No new case was cited before us. (25.) MR. Tilok Bose, learned counsel appearing for Universal, contended as follows :-i) On an analysis of the chronological events it would appear that everything went normal until Aral was taken over by B.P. PLC Hence, it could safely be inferred that change of ownership of Aral was responsible for termination of contract. No new case was cited before us. (25.) MR. Tilok Bose, learned counsel appearing for Universal, contended as follows :-i) On an analysis of the chronological events it would appear that everything went normal until Aral was taken over by B.P. PLC Hence, it could safely be inferred that change of ownership of Aral was responsible for termination of contract. B.P. PLC was a competitor in India through their brand Castrol. Hence, they involved themselves in hatching a conspiracy as against Universal and induced and coerced aral to brake the contract. ii) On reading of the two agreements, the supplementary agreements as well as letters of approval of the Reserve Bank of India and on a combined reading of the same it would appear that the contract was for a fixed period and the parties were not entitled to terminate the same before the expiry of the same subject to their right of termination as provided in common law. Hence, the learned Judge was right in holding that termination was wrongful. iii) Even if there was adequate scope to get pecuniary damage the court was entitled to grant perpetual injunction and the learned Judge did so, rightly. iv) After holding in favour of Universal that the termination was wrongful and universal was entitled to perpetual injunction His Lordship erred in not granting specific performance as nothing further was to be done by Aral which might involve any monitoring as in fact Universal was already provided with technology by Aral. There was enough concentrate in the custody of Universal. Hence, even if Aral did not cooperate it would not be difficult for Universal to continue to sell Arals product upto 2009 as per the agreement. (26.) MR. Pratap Chatterjee, learned senior counsel also appearing for Universal, however, gave a different construction as to the agreement. According to him, it was an evergreen contract which had automatic renewal on every interval of two years. He, however, in reply amended his argument and contended that such indefinite contract was made definite by the Reserve Bank of India as curtailment of period prescribed in the original agreement was not permitted by them as clearly observed in their letter of approval. He, however, in reply amended his argument and contended that such indefinite contract was made definite by the Reserve Bank of India as curtailment of period prescribed in the original agreement was not permitted by them as clearly observed in their letter of approval. He also contended that the action on the part of B.P. PLC and Castrol amounted to an interference with economic relation between Aral and Universal and such action was wrongful and Universal was entitled to sue for the same. On the issue of specific performance Mr. Chatterjee contended that it was difficult to assess the damage and/or compensation as neither the anticipated loss of business nor estimated value of the goodwill could be prospectively assessed. Hence, in addition to perpetual injunction Universal was entitled to decree for specific performance and neither of the conditions stipulated in Section 14 of the Specific Relief Act did have any application. (27.) MR. B. K. Bachawat, learned senior counsel appearing for the B.P. PLC and Castrol contended that assuming B.P. PLC controlled Aral at the relevant time and helped Aral to take a decision for termination of contract that would not amount to any conspiracy or tort. Similarly, Castrol was virtually owned by B.P. PLC and was to be managed by the said company. Any decision of Aral or Castrol either by themselves or through B. P. plc was a commercial decision taken in usual course of business. That might affect a third party being Universal as the case may be. But such interference by implication would not amount to any injury which might be available as cause of action to sue them for damages. In any event such injury had to pleaded with particulars which were conspicuously absent in the plaint. (28.) ON behalf of Aral Mr. Padam Khaitan, learned advocate, contended that as per the contract either parties to the contract was entitled to terminate the same with six months notice. Such condition was not contrary to the Reserve Bank of Indias approval. Reserve Bank approval was for a different purpose being payment of royalty. The parties also understood the same as would appear from the letter of universal appearing at page 495 of the Paper Book. The agreement was evergreen with an automatic renewal in every two years interval. Such clause was not at all affected by the Reserve Bank approval. Reserve Bank approval was for a different purpose being payment of royalty. The parties also understood the same as would appear from the letter of universal appearing at page 495 of the Paper Book. The agreement was evergreen with an automatic renewal in every two years interval. Such clause was not at all affected by the Reserve Bank approval. The clause in the agreement did not have any ambiguity. Hence, it was to be given appropriate grammatical meaning. Assuming such agreement was to be read along with Reserve Bank approval the court was interpret the agreement by taking aid from the conduct of the parties as to how the parties understood the agreement. Hence, Universal was not entitled to invite the court to give any other interpretation of the agreement other than the interpretation they expressed in their letter at page 495 of the Paper Book. On the issue of specific performance Mr. Khaitan contended that damage was the appropriate remedy as the specific performance of the contract would involve constant interaction and continuous monitoring through court which was not possible. Hence, the learned judge was right in rejecting such prayer. (29.) MR. Sudipto Sarkar, learned senior counsel also appearing for Aral contended that right of termination was an inbuilt right in the agreement. The parties understood as such. The Reserve Bank approval was only with regard to fixation of royalty and in any event Reserve Bank of India was not entitled to touch upon the fundamental rights of the parties to the contract including the right of termination. On the specific performance Mr. Sarkar contended that there had to be constant flow of technology as technology was being advanced every day. Technology so provided to Universal prior to 2004 would not be appropriate to be used in 2008 which would not only injure the reputation of Aral but also would act detrimental to their interest. Hence, there had to be a constant monitoring by Aral. Since Aral was not agreeable to do the same specific performance could not be decreed and the learned Judge was right in rejecting such prayer. On the perpetual injunction Mr. Hence, there had to be a constant monitoring by Aral. Since Aral was not agreeable to do the same specific performance could not be decreed and the learned Judge was right in rejecting such prayer. On the perpetual injunction Mr. Sarkar contended that assuming the court held that there had been a wrongful termination it could not be an automatic process by which the plaintiff would get a perpetual injunction as it was the duty of the court not only to consider the balance of convenience but also the equity and the ultimate effect of such injunction. Learned Single Judge did not consider these aspects before granting perpetual injunction. Distinguishing the cases relied on by the learned Single Judge in the case of Chunchun Jha - Vs-Ebadat Ali reported in All India Reporter, 1954, Supreme Court, Page 345 and in the case of gujarat Bottling Company Limited and Ors. Vs. Coca Cola reported in 1995, Volume ? V, Supreme Court Cases, Page 545 Mr. Sarkar contended that the document involved in the case of Chunchun Jha (Supra) related to immovable property. In the said case the issue was as to whether the subject Deed was an absolute Deed of sale coupled with reservation of right of re-purchase or a mortgage. The facts herein were absolutely dissimilar and the ratio decided therein could not have been applied in the instant case. Paragraphs 42 and 43 of Gujarat Bottling (Supra) were drawn our attention to. Mr. Sarkar contended that the Apex Court considered the fact that in the matter of injunction the Court would have to exercise its discretion whether the plaintiff had a prima facie case as to the balance of convenience and whether the plaintiff would suffer irreparable injury if the prayer was disallowed. (30.) WE have considered the rival contentions of the parties. Let us deal with the issues involved herein topicwise. (31.) THE first agreement was entered into on November 1, 1994 appearing at pages 371374 of the Paper Book. Clause 5 of the agreement being relevant herein is quoted below :- "term and termination : After the initial three years term, the Agreement may be terminated by UPCL or Aral by registered letter (six months notice) if the objectives mutually agreed upon are not reached for what reason ever. Clause 5 of the agreement being relevant herein is quoted below :- "term and termination : After the initial three years term, the Agreement may be terminated by UPCL or Aral by registered letter (six months notice) if the objectives mutually agreed upon are not reached for what reason ever. After the initial term the Agreement shall be prolonged for a term of additional five years and shall be extended automatically for periods of two years if notice of termination is not given by registered letter six months before the date of termination by either party. At any time during the term, either Aral or UPCL may terminate the Agreement in the event of either party fails to fulfill this Agreement, after written notice and given an opportunity to cure the failure, within a time given. Aral may terminate this Agreement if major changes in the majority of shareholders of UPCL occur. This is in order to safeguard Arals interest and Aral should give good reason for any objection." (32.) ON a plain reading of the clause quoted (Supra) to our understanding, the agreement was for a initial period of three years coupled with an extension of additional 5 years and thereafter automatic extension of every 2 years. On the issue of termination the agreement did not give any right for termination for initial 3 years period. Six months notice of termination could be given beyond 3 years meaning thereby if the agreement was prolonged for 5 years after 3 years parties were entitled to give six months notice of termination and if no such notice was given within additional 5 years it would automatically get renewed every 2 years so long no notice of termination was given. (33.) TO make it clear, from the 4th to 8th year either party could give six months notice of termination. If no such notice was given within the said period it would get extended automatically for the 9th and 10th year. Similarly if no such notice was given for termination it would automatically be extended for the 11th and 12th year and would automatically get extended every 2 years so long such notice was not given. (34.) LET us now read the approval of the Reserve Bank of India appearing at pages 377378 of the Paper Book. Clause II of the approval modified the terms of payment of royalty. (34.) LET us now read the approval of the Reserve Bank of India appearing at pages 377378 of the Paper Book. Clause II of the approval modified the terms of payment of royalty. It was prescribed that for initial three years royalty would be 5% on domestic sales. However, the total payment should not exceed 8% of sales over a period of 10 years from the date of agreement or 7 years from the date of commencement of the commercial production. It also says, duration of the agreement would be 10 years from the date of agreement or 7 years from the date of commencement. Clause II is quoted below :- "2. You have our approval to enter into technical collaboration with M/s Aral aktiengesellschaft, Germany, for the manufacture of Lubricating Oil subject to the conditions enumerated in the annexure. The terms of the collaboration will be as follows :-a) Lumpsum fess : NIL b) Royalty : 5% on domestic sales, for 3 years, net of taxes. c) The total payment should not exceed 8% of sales over a period of 10 years from the date of agreement or 7 years from the date of commencement of commercial production. d) Duration of the agreement will be ten years from the date of agreement or seven years from the date of commencement of commercial production." (35.) APPROVAL also compelled the parties to execute a supplementary agreement by making the approval as integral part of the agreement. Accordingly parties entered into an agreement as such. Hence, the conditions imposed in the approval which were contrary to the earlier conditions would prevail upon the earlier conditions. We have no hesitation to hold that it was the intention of the Reserve Bank of India to fix the period of contract for a definite period instead of indefinite clause 5 which according to Mr. Chatterjee and Mr. Sarkar was an "evergreen contract". The parties did not dispute that the commercial production started on January 1, 1996 as such the first agreement was to expire on 31st December, 2002. Pertinent to note, the original agreement was entered into on November 1, 1994. Chatterjee and Mr. Sarkar was an "evergreen contract". The parties did not dispute that the commercial production started on January 1, 1996 as such the first agreement was to expire on 31st December, 2002. Pertinent to note, the original agreement was entered into on November 1, 1994. Assuming clause 5 was still alive after the Reserve Bank of India approval and after execution of the supplementary agreement such agreement was to expire and/or was to be renewed on the expiry of 31st October in an English calendar year whereas the first contract expired on december 31, 2002. Similarly, the second contract was entered into and Reserve bank of Indias approval was granted on identical terms. This time, however, the reserve Bank of India was specific. The Reserve Bank of Indias second approval appearing at pages 394-396 of the Paper Book specified the period. Clause 5 of the second approval is quoted below : "5. Duration of the agreement: Duration of the Technology collaboration Agreement shall be 7 (Seven) years from the date of expiry of the earlier Agreement, i. e. w. e. f. 01.01.2003 To 31.12.2009." (36.) FROM the above quoted (supra) it would appear that the Reserve Bank of India also described the earlier agreement as expired on December 31, 2002 and not October 31, 2002. Hence, on the construction of the agreement we are not in a position to accept the interpretation given either by Mr. Khaitan or Mr. Sarkar and according to us the learned Judge correctly interpreted the same and we do not have any scope of interference on that score. (37.) MR. Bose strenuously argued for days on the subject issue. We, however, could not convince ourselves with his argument on this score. A company incorporated under the Company Law is a juristic person. It acts through the Board of Directors who are elected by the shareholders. Hence, in effect a company is run by the controlling block of shareholders. Both Aral and Castrol were subsidiaries of B. P. plc at the relevant time. What would be the business strategy of Aral or Castrol must be decided by B. P. plc and B. P. plc was the only person who could take a decision on that score. Such decision being a commercial and/or economical one, could not be termed as conspiracy unless such decision was contrary to any law of the land and/or public policy. Such decision being a commercial and/or economical one, could not be termed as conspiracy unless such decision was contrary to any law of the land and/or public policy. Such decision might be erroneous. Such decision might be wrongful. Such decision might be available for challenge in a court of law on cogent ground. However, B. P. plc, Aral and Castrol could not be, in my view, charged for conspiracy. It is true that such economical decision might have caused prejudice to their competitor being Universal. Universal was thus entitled to challenge the decision as soon as it was acted upon by Aral. However, neither B. P. plc nor Castrol could be sued on that score. We feel that the learned Judge approached the problem accurately and we do not find any reason for disagreement. (38.) AS observed earlier, learned Judge was right in holding that the termination was wrongful as Aral was not competent to terminate the agreement before its expiry applying Clause 5 of the original agreement question remains as to what would be the adequate relief the plaintiff being Universal would be entitled to. Learned Judge granted perpetual injunction against Aral from parting with their technology in India to any other party except Universal. Mr. Sarkar heavily relied on Gujarat Bottling (Supra) in which case Apex Court was considering grant of injunction at the interlocutory stage whereas we are considering a case which was disposed of at the final hearing. Once the termination was held to be wrongful offending party must not be allowed to take advantage of his own wrong. It is not correct to allow the wrong doer to contend that even if the termination was wrong order of injunction should be refused as plaintiff would be entitled to monitory compensation. Such, in our view, would be premium to dishonesty. Monitory compensation might help the court to mitigate the pecuniary loss suffered by the plaintiff because of such wrong. That, in our view, was not adequate as it would not be a complete relief in a case where termination of a contract before its expiry was held to be illegal and wrongful. Learned Single Judge held that the agreement was for a fixed period. We accepted such observation of His Lordship. That, in our view, was not adequate as it would not be a complete relief in a case where termination of a contract before its expiry was held to be illegal and wrongful. Learned Single Judge held that the agreement was for a fixed period. We accepted such observation of His Lordship. Hence, the agreement was to expire on December 31, 2009 and the learned Judge was right in granting perpetual injunction restraining aral from doing any business in India upto that date except with Universal. We do not find any reason of disagreement on that score. (39.) THE learned Single Judge held that specific performance was not possible as it would involve continuous monitoring by the Court. His Lordship held that such prayer was hit by Section 14 of the Specific Relief Act. Section 14 of the Specific Relief Act is quoted below:- "section 14. Contracts not specifically enforceable.-(1) The following contracts cannot be specifically enforced, namely:- (a) a contract for non-performance of which compensation in money is an adequate relief; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) a contract which is in its nature determinable; (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. (2) Save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit. (3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d)of sub-section (1), the court may enforce specific performance in the following cases :- (a) where the suit is for the enforcement of a contract ? (3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d)of sub-section (1), the court may enforce specific performance in the following cases :- (a) where the suit is for the enforcement of a contract ? (i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once: provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or (ii) To take up and pay for any debentures of a company; (b) where the suit is for (i) The execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or; (ii) The purchase of a share of a partner in a firm; (c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land; provided that the following conditions are fulfilled, namely;-(i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work; (ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and (iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed." (40.) LET us read the agreement to adjudicate on the subject issue. On perusal of the agreement it appears that once Aral furnished technology and concentrate their job was not over. They were not only to monitor from time to time the manufacturing and sale of Arals product in India but also to provide the modified technology from time to time. Clause VII of the contract stipulates that Aral would provide technology, sale and promotional information and would assist in providing initial marketing and sales support. They would also hold training sessions at their cost. There would be a constant support by Aral and would conform with "expected development". Clause VII of the contract stipulates that Aral would provide technology, sale and promotional information and would assist in providing initial marketing and sales support. They would also hold training sessions at their cost. There would be a constant support by Aral and would conform with "expected development". On a combined reading of all the clauses of the agreement it would appear that a constant supportive role of Aral was absolutely necessary. We are impressed by Mr. Sarkars argument to the extent that a technology of 2004 might not be appropriate in 2008 or 2009 as the case may be as it was being developed day by day. Learned Single Judge observed that it would require constant monitoring. Court has no such infrastructure. Hence, despite the fact that the termination was held to be wrongful we are constrained to hold that specific performance was not possible in absence of appropriate infrastructure of the Court to have constant monitoring on the performance of the contract. Hence, learned Judge was right in rejecting such prayer. (41.) WE thus hold that the learned Judge rightly approached the problem and solved the same accurately and we do not find any scope of disagreement on any issue. Appeal, thus, fails and is hereby dismissed. The cross objection filed by the respondent no. 3 is also dismissed. There would be, however, no order as to costs.