JUDGMENT: (per Hon'ble Sri Justice V.Eswaraiah) Heard the arguments of Sri C.V.Mohan Reddy, the learned Advocate General, appearing for the appellant/NIMS as well as Sri P.Venugopal, learned counsel, representing Sri D.Hanumantharao, learned counsel appearing for the respondent- contractor. 2. The Nizam's Institute of Medical Sciences (hereinafter referred to as 'NIMS') filed this appeal under Order 43 Rule-1 of Civil Procedure Code against the order dated 28.07.2008 passed by the II Additional Chief Judge, City Civil Court, Hyderabad in I.A.2772/2008 in O.S.No.390/2008. 3. The said I.A.2772/2008 has been filed by the respondent herein namely T.Rajendra (hereinafter referred to as "the Contractor") under Or.39 Rules-1 and 2 for grant of interim injunction, restraining the NIMS, its men or any officers, employees, nominees, claiming through or under it from interfering with the peaceful supply of labour, and the Court below by order dated 28.07.2008 directed the appellant-NIMS to maintain status quo. 4. This Civil Miscellaneous Appeal has been filed, contending that filing of the suit in O.S.390/2008 for the grant of perpetual injunction itself is a gross abuse of process of Court and the contractor has approached the Court with unclean hands, as such, the contractor is not entitled for any equitable relief. The conduct of the contractor amounts to playing fraud on the Court. When there is an arbitration clause between the parties and when in fact, the contractor moved an application for appointment of an arbitrator vide Arbitration Application No.8/2007, which is pending adjudication on the file of this Court, the suit itself is not maintainable. 5. The learned Advocate General appearing for the appellant/NIMS submits that similar relief as is now obtained by the impugned order in I.A.2772/2008 in O.S.390/2008 has been prayed for earlier in O.P.No.2427/2006 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad as an interim measure under Sec.9 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Arbitration Act") and the same was allowed, against which the appellant/NIMS preferred CMA.521/2007 which was allowed on 24.07.2008, granting time to settle all the accounts of the contractor before the end of August, 2008, and therefore, the Court below is not justified in passing the impugned order when a similar order was granted in OP.2427/2008 and the same was in force. 6. 6. The background of the case is that the contractor has entertained an agreement with NIMS on 23.10.2001 for a period of two years for the supply of contract labour, which was renewable for another period of three years. Thereafter, on the representation made by the contractor seeking renewal of the contract for further period of 3 years, the NIMS agreed to renew the contract with effect from 23.10.2003, and accordingly, entered into an agreement with the contractor on 18.09.2003 with certain terms and conditions. Clause-5 of the said agreement stipulates that the period of contract will be for a period of 3 years with effect from 23.10.2003, and as per Clause-6, the existing bank guarantee given by the contractor will be renewed for three more years from 23.10.2003. As per Clause-13, the contractor shall obtain licence under the Contract Labour (Regulation and Abolition) Act. As per Clause-14, the contractor shall supply the labour with the present strength of workers supplied (at present about 543 unskilled workers and 89 semiskilled workers are supplied). Additional workers are also required to be made available as and when necessary by the institute. As per Clause-15, the contractor shall engage minimum of 7 supervisors or such number as may be required by the NIMS at his cost to oversee the operations of the labour deployed, and comply with such instructions as may be issued by the Medical Superintendent of the NIMS. Clauses 16 and 18 are extracted hereunder for the sake of convenience: Clause-16: "It is agreed that the contract is renewable for a similar period after the expiry of the present period of contract." Clause-18: "Notwithstanding negotiations by and between the parties, the dispute or difference of opinion is not resolved, either party may refer the dispute or difference arising between the parties out of, or relating to the maintain, scope, operations or effect of this contract or the validity of the breach thereof, by arbitration, as per the provisions of the Arbitration and Conciliation Act, 1996 and in accordance with such Rules of Arbitration as may be agreed between both the parties. The award made by the sole arbitrator in pursuance thereof shall be binding on the parties. The place of arbitration shall be at Hyderabad and the language for the purpose of such proceedings shall be in English." Thus, the contract among the parties will expire by 22.10.2006. 7. The award made by the sole arbitrator in pursuance thereof shall be binding on the parties. The place of arbitration shall be at Hyderabad and the language for the purpose of such proceedings shall be in English." Thus, the contract among the parties will expire by 22.10.2006. 7. It is stated that without making any representation seeking renewal of the contract before the expiry of the contract period, the contractor unilaterally extended the bank guarantee for another period of three years upto 23.10.2009 vide letter dated 05.06.2006. 8. It is stated that as there was no renewal of the contract, the appellant/NIMS issued a tender notification in Rc.No.Misc./2006/1/HRD/H1 dated 29.11.2006, inviting tenders from interested parties to supply required number of labour to the NIMS both unskilled and semiskilled labour for a period of two years from 01.01.2007 to 31.12.2009. Aggrieved by the said tender notification dated 29.11.2006, the contractor filed W.P.2611/2006 contending that calling for the aforesaid tenders without enabling the contractor to have adjudication of the dispute relating to renewal of the present contract resolved by the Arbitral Tribunal, as per Clause-18 of the agreement dated 18.09.2003, is arbitrary and illegal, and sought for a direction to the NIMS not to introduce third parties into the subject matter relating to supply of unskilled and semiskilled labour to the NIMS under the aforesaid agreement dated 18.09.2003. The said writ petition was dismissed on 26.12.2006 on the ground that admittedly, the contractor filed O.P.2427/2006 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad under Sec.9 of the Arbitration Act, seeking interim protection, and the Civil Court by order dated 16.12.2006 in I.A.4318/2006 in O.P.2427/2006 granted ad interim injunction against the NIMS restraining it from discontinuing the services of the contractor in terms of the agreement dated 18.09.2003 till the arbitration proceedings are adjudicated, and the said order is subsisting, and the question whether the contractor has acquired a right of compulsory renewal under Clause-16 of the agreement is the subject matter of the O.P.2427/2006 which is still pending. However, it cannot be held that the action of the NIMS in inviting the tenders is either arbitrary or illegal, much less interfering with the process of justice. However, it cannot be held that the action of the NIMS in inviting the tenders is either arbitrary or illegal, much less interfering with the process of justice. Even if the tenders are invited and finalized, as long as the order of injunction granted by the Civil Court is subsisting, the services of the contractor cannot be discontinued, hence no prejudice could be caused to the contractor in issuing the tender notification. Since the action of the NIMS cannot be said to be vitiated on account of any error much less can it be said to be abuse of process of law, the judicial review under Article-226 of Constitution of India is unwarranted. Accordingly, the Writ Petition was dismissed, making it clear that the Civil Court shall consider and decide OP.2427/2006 without having regard to the finalization of the tenders under the said tender notification and the award of contract, if any, by the NIMS. 9. Aggrieved by the said order of the learned single Judge in dismissing the W.P.2611/2006 by order dated 26.12.2006, the contractor filed Writ Appeal No.43/2007 before the Division Bench of this Court, but the said writ appeal was dismissed as withdrawn by order dated 26.02.2007. Thus, the order of the learned single Judge has become final. 10. The said O.P.2427/2006, filed by the Contractor under Or.9 of the Arbitration Act for grant of permanent injunction restraining the NIMS and its officers and men from discontinuing /interrupting the continuation of the contract of the contractor, in terms of the agreement dated 18.09.2003 relating to the supply of the requisite number of unskilled and semiskilled labour to the NIMS till the renewal claim of the contractor as per Clause-16 of the agreement is adjudicated upon by the arbitral proceedings, was allowed on 21.02.2007 by the III Additional Chief Judge, City Civil Court, Hyderabad with costs restraining the NIMS from discontinuing the contract of the Contractor as per agreement dated 18.09.2003 till the arbitration proceedings are concluded. Two weeks time was granted for the NIMS to intimate its intention to the contractor for acceptance of the appointment of the Arbitrator or mention the name of the arbitrator of its choice by registered post, failing which the contractor shall take steps for appointment of arbitrator within 45 days, otherwise after expiry of 45 days, the order of injunction shall cease to exist. In the afore said O.P. it was held that there is a legal and enforceable arbitration agreement exists between the parties and there is arbitral issue to be referred to the arbitrator, and therefore, as an interim measure for grant of injunction as sought for under Sec.9 of the Arbitration Act, can be granted. 11. As against the said order in O.P.2427/2006 dated 21.02.2007, the NIMS filed CMA.521/2007 under Sec.37 and 39 of the Arbitration Act in the month of July, 2007. As the compromise talks were failed, the CMA was heard in part on 22.07.2008 and orders were reserved on 22.07.2007. It is stated that the CMA.521/2007 was allowed by the Division Bench of this Court on 24.07.2008, holding that as per the judgment of the Supreme Court in the case of Adhunik Steels Ltd. v. Orissa Manganese and Minerals Pvt.Ltd.1 even while granting interim relief under Sec.9 of the Arbitration Act, the relevant provisions of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") cannot be kept out of consideration. It is stated that under Sec.14(c) of the Act, the contract which in its nature is determinable and under Sec.41(e) to prevent the breach of a contract, the performance of which would not be specifically enforceable. If the NIMS commits a breach in not renewing the contract for further period of three years on expiry of the present period of the contract, the contractor can always invoke the arbitration clause and seek damages for such breach, if any, committed by the NIMS. It is not the case that the compensation in money for non-performance of the contract is not an adequate relief as mentioned under Sec.14(3)(c)(ii) of the Specific Relief Act, 1963 for enforcing the contract, therefore, it was held that the lower Court is not justified in granting interim injunction in negative form, which virtually amounts to renewal of lease until arbitration proceedings are concluded. Therefore, the order of the Court below in O.P.2427/2006 was, accordingly, set aside. It is further held that if the NIMS not agreeable for the renewal of the supply contract, the contractor cannot continue the contract work and he has to settle all his claims before the end of August, 2008. 12. Therefore, the order of the Court below in O.P.2427/2006 was, accordingly, set aside. It is further held that if the NIMS not agreeable for the renewal of the supply contract, the contractor cannot continue the contract work and he has to settle all his claims before the end of August, 2008. 12. It is stated that while CMA.521/2001 was pending on the file of this Court, and the interim injunction was continuing and subsisting, there was no occasion for the contractor to file a fresh suit being O.S.390/2008 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad. It is stated that the averments made in the plaint were verified and signed on 13.07.2008 and the said suit along with I.A.2772/2008 was filed on 21.07.2008. While posting the suit to 28.08.2008, urgent notice was ordered in the said I.A. to be posted on 25.07.2008. It is stated that the notice was served on the Medical Superintendent in the evening on 24.07.2008. On 25.07.2008 the Presiding Officer was on leave, and therefore I.A. was posted to 28.07.2008. On 28.07.2008 the II Additional Chief Judge, City Civil Court, who is the selfsame officer and who passed orders dated 21.02.2007 in O.P.2427/2006, passed the impugned order granting status quo, regarding the NIMS from interfering with the peaceful supply of labour in conducting the contract by the contractor. It is stated that the NIMS was called absent till 12 noon, and accordingly, set the NIMS ex parte and after hearing the counsel for the contractor and pursuant to the documents filed, and as the NIMS did not contest the petition though notice was served on 24.07.2008, the petition was allowed directing the NIMS to maintain status quo. 13. The leaned Advocate General submits that no cause of action arose for filing O.S.390/2008 on 21.07.2008 seeking relief of perpetual injunction restraining the NIMS from interfering with the peaceful supply of the labour in conducting the contract by the contractor till 23.10.2009 after allowing of the O.P.2427/2006 and during pendency of CMA.521/2007. 14. In the plaint, it is stated that the agreement was entered into on 18.09.2003 and the contract has came into force with effect from 23.10.2003 onwards and as per Clause-16 of the said agreement, it is agreed that the contract is renewable for a similar period after expiry of the present period of contract. 14. In the plaint, it is stated that the agreement was entered into on 18.09.2003 and the contract has came into force with effect from 23.10.2003 onwards and as per Clause-16 of the said agreement, it is agreed that the contract is renewable for a similar period after expiry of the present period of contract. It is stated that pursuant to the said Clause-16 of the agreement, the Contractor extended the bank guarantee vide his letter dated 05.09.2006 renewing the bank guarantee upto 23.10.2009 and thus, the contract is renewed and has been acted upon. It is stated that on noticing foul play on the part of the NIMS and finding that the NIMS is wriggling out of the contract, contrary to the spirit of Covenant No.16 of the agreement, the contractor filed O.P.2427/2006 along with I.A.4318/2006, and obtained interim injunction by order dated 21.02.2007. Aggrieved by the same, the NIMS preferred CMA.521/2007 before this Court and the sma is pending for adjudication, and as on the date of filing of the suit and the I.A, the injunction order granted in O.P.2427/2006 dated 21.02.2007 is subsisting. 15. It is stated that there was some dispute with regard to the payment of variable dearness allowance and the labour said to have raised the dispute before the Joint Commissioner of Labour who is said to have directed the NIMS to issue sarees and blouses and ensure that the allowances are paid to the union. We are of the opinion that the said dispute has nothing to do with the issue in question. 16. It is further stated that on 10.07.2008 the appellant/NIMS called the Contractor and informed that the NIMS is terminating the contract due to the workers/union unrest, though the contractor has nothing to do with the dispute raised by the labour. It is stated that the NIMS started interfering with the work of the contractor, and therefore, in view of threat of termination, the contractor seeks to interference of this Court. It is further stated that in view of the renewal of the contract pursuant to Clause-16 of the agreement, the NIMS cannot wriggle out of the contract, which is in force till 23.10.2009. It is further stated that in view of the renewal of the contract pursuant to Clause-16 of the agreement, the NIMS cannot wriggle out of the contract, which is in force till 23.10.2009. Accordingly, the cause of action for the suit arose on 18.09.2003 when the agreement was entered into and acted upon on 23.10.2003 and renewed on 22.10.2006 which is said to have been admitted by the NIMS vide its letters dated 28.04.2007 and 21.06.2008, and when the bank guarantee was extended vide letter dated 05.09.2006 upto 23.10.2009 and when the meeting was held before the Joint Commissioner of Labour on 10.07.2008 and when the NIMS informed that it has terminated the contract. 17. The learned Advocate General submits that the contractor played fraud on the Court by suppressing the fact of filing the writ petition questioning the tender notification for the supply of unskilled and semiskilled labour and withdrawal of the writ appeal filed against the same and when the injunction granted by the III Additional Chief Judge, City Civil Court, Hyderbad in O.P.2427/2006 under Sec.9 of the Arbitration Act was still subsisting during pendency of the CMA.521/2007 upto 24.07.2008, and there was no cause of action or reason for filing the present suit for the selfsame relief by notionally valuing the suit at Rs.11 lakhs so as to enable the contractor to get it before the II Additional Chief Judge, City Civil Court, Hyderabad who is the selfsame officer and who passed the earlier injunction order in O.P.2427/2006 being III Additional Chief Judge and that the said selfsame officer readily accepted the request of the contractor for grant of an interim injunction hurriedly and even without giving reasonable time, by setting the NIMS ex parte. It is further stated that in all fairness the learned II Additional Chief Judge, City Civil Court, Hyderabad should have enquired into as to what happened in CMA.521/2007 and as to why the injunction is asked for when order of injunction is subsisting in O.P.2427/2006. It is stated that the learned II Additional Chief Judge, without making any enquiry whatsoever and without verifying as regards to the contentions of the contractor and the status of the proceedings of CMA.521/2007, passed the impugned order. It is stated that the learned II Additional Chief Judge, without making any enquiry whatsoever and without verifying as regards to the contentions of the contractor and the status of the proceedings of CMA.521/2007, passed the impugned order. The learned Advocate General submitted that in his 30 years of experience, as a counsel, he never came across such an order granting an injunction readily on the mere asking of the contractor even though the learned Judge who himself had an occasion to examine the matter in detail in O.P.2427/2006 and granted injunction in O.P.2427/2006 dated 21.02.2007. 18. The learned Advocate General further submits that in fact the petitioner filed Arbitration Application No.8/2007 on 23.01.2007 for appointment of sole Arbitrator for adjudication of the dispute between the appellant/NIMS and the respondent/contractor relating to supply of contract labour in terms of the Agreement dated 18.09.2003. It is stated that the subject matter of the said arbitration application is with regard to the dispute relating to renewal of the contract in terms of the Clause-18 of the Agreement dated 18.09.2003 for the supply of contract labour upto 22.10.2009. The said arbitration application was admitted on 06.02.2007 and dismissed for default on 29.10.2007 and the same was restored on 17.12.2007, and again it was dismissed for default on 17.01.2008. On an application filed by the contractor, the dismissal order was again set aside and the arbitration application was restored to file by order dated 11.02.2008 on payment of costs of Rs.2,000/-. Thus, it is stated that the arbitration application is still pending on the file of this Court. 19. It is further stated that even before invoking the arbitration clause for the settlement of the dispute relating to renewal of the contract upto 22.10.2009 pursuant to the extension of the bank guarantee, the contractor approached the Civil Court for grant of interim order under Sec.9 of the Arbitration Act in O.P.2427/2006 for interim protection and obtained interim injunction restraining the NIMS from discontinuing/interrupting the continuation of the contract of the contractor in terms of the agreement dated 18.09.2003. It is stated that aggrieved by the order in O.P.2427/2006 dated 21.02.2007, the appellant/NIMS filed CMA.521/2007 and the same was allowed by order dated 24.07.2008 setting aside the order in O.P.2427/2006. It is stated that aggrieved by the order in O.P.2427/2006 dated 21.02.2007, the appellant/NIMS filed CMA.521/2007 and the same was allowed by order dated 24.07.2008 setting aside the order in O.P.2427/2006. Thus, it is stated that the present suit i.e. O.S.390/2008 itself is not maintainable and therefore, the Court below without considering the earlier proceedings and the result of the CMA.521/2007, granted ex parte interim injunction though the balance of conveyance is not in favour of the contractor and more so, when the Division Bench of this Court felt that there cannot be any injunction for the breach of the contract, which may not be specifically enforceable in view of the provisions of Sec.14(c) and 41(e) of the Specific Relief Act, 1963. It is stated that for any breach of the contract, it is always open for the contractor to claim damages, but it cannot be said that the irreparable loss and the breach cannot be compensated in terms of money. 20. It is further stated that the contractor has ingeniously got drafted the plaint and interim injunction application and obtained an ex parte injunction order on 28.07.2008 i.e. after disposal of CMA.521/2007 which is allowed by order dated 24.07.2008. It is further stated that the injunction order was not at all communicated to the appellant/NIMS till 27.08.2008. It is stated that the injunction order was communicated only and at the convenience of the contractor after a month of obtaining the injunction order in the suit, along with a letter of the learned counsel appearing for the contractor dated 27.08.2008. 21. On the other hand, Sri P.Venugopal, learned counsel appearing for the contractor submits that admittedly, the impugned order is an ex parte order and therefore, it is open for the NIMS to file an application to vacate the said order. It is further stated that though the ex parte interim injunction order is appealable under Or.43 Rule-1 CPC and is maintainable, but as per the judgment of this Court in the case of Innovative Pharma Surgicals v. Pigeon Medical Devices Pvt.Ltd.2 though an appeal is maintainable against the ex parte interim injunction, but such an appeal should be filed only in an extraordinary situation under which the party is able to explain as to why he prefers an appeal in the High Court instead of choosing to file an application to vacate the ad interim injunction. Even in case of appeal against the ad interim injunction, the appellate Court will not be bound to apply its mind to all the contentions, where the original Court is bound to consider the facts shown by the party affected by ad interim order. 22. On the other hand, Sri C.V.Mohana Reddy, learned Advocate General submits that the facts in the instant case are not disputed, in view of the orders passed by the selfsame Judge in O.P.2427/2006 dated 21.02.2007 which was the subject matter of CMA.521/2007 before the Division Bench of this Court, and when the Division Bench of this Court by order dated 24.07.2008 authoritatively held that contractor is not entitled for interim injunction under Sec.9 of the Arbitration Act to prevent the breach of the contract, the performance of which would not be specifically enforceable under Sec.41(e) of the Specific Relief Act as envisaged under Sec.14(c) of the said Act, therefore, the grant of injunction amounts to gross abuse of process of law by overruling the judgment of the Division Bench of this Court once again by the selfsame learned Presiding Officer who presided as III Additional Chief Judge earlier and presently as II Additional Chief Judge, City Civil Court, Hyderabad while passing the impugned order. 23. Under Sec.14(c) of the Specific Relief Act, a contract, which is in its nature of determinable, cannot specifically be enforced. Under Sec.41(e) of the said Act, injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforceable. Admittedly, under the contract whether there was any breach of contract or not and even in respect of breach of contract or specific performance is not enforceable and in such contracts, no injunction can be granted. The Division Bench of this Court in CMA.521/2007 relying on the judgment of the Supreme Court in Adhunik Steels Ltd. v. Orissa Manganese and Minerals Pvt.Ltd. (1 supra) held that the Civil Courts, while exercising the power in considering the application for grant of interim injunction under Sec.9 of the Arbitration Act, they cannot be kept out of consideration the relevant provisions of Specific Relief Act, and therefore, as per Sec.14(c) read with Sec.41(e) of the Specific Relief Act no injunction can be granted to prevent the breach of a contract, the performance of which would not be specifically enforceable. It is, thus, stated that when the Division Bench of this Court found fault with the order of the selfsame Presiding Officer in granting injunction under Sec.9 of the Arbitration Act, it is not open for the very selfsame Presiding Officer to grant interim relief, while exercising the discretionary power for the grant of injunction under Or.39 Rule-1 in the suit filed by the Contractor. It is further stated that the suit O.S.390/2008 itself is not maintainable. 24. We are not inclined to express any opinion as to whether the suit in O.S.390/2008 is maintainable or not as it is for the Court below to consider the said issue. We are only concerned with the legality and validity of the impugned order alone. No doubt the Court below is empowered to adjudicate as to whether a case is made out for invocation of Sec.9 of the Arbitration Act or not, and having invoked the remedy by obtaining the interim order of injunction in O.P.2427/2006 under Sec.9 of the Arbitration Act, which was rightly set aside by this Court, holding that in the instant case the Contractor is not entitled for an order of injunction in view of Sec.14(c) and 41(e) of the Specific Relief Act. 25. The impugned ex parte order was passed by the same Presiding Officer who had an occasion to deal with the matter thoroughly while granting ad interim injunction by order dated 21.07.2008 in O.P.2427/2006. The same Presiding Officer, who passed the orders in O.P.2427/2006 as III Additional Chief Judge, City Civil Court, Hyderabad, presently passed the impugned order as II Additional Chief Judge, City Civil Court, Hyderabad. The interim order ordinarily would further finding of a prima facie case. When existence of a prima facie case is established, the Court shall consider the other relevant factors, namely, balance of convenience and irreparable loss. Admittedly, the contractor raised a dispute with regard to claim of his entitlement for extension of contract upto 22.10.2009 which is pending in Arbitration Application No.8/2007 on the file of this Court. The learned Presiding Officer neither considered the prima facie case, the balance of convenience or irreparable loss nor enquired about the result of the CMA.521/2007, which was filed against his own order passed in O.P.2427/2006. 26. We are of the opinion that the conduct of the parties is also a relevant factor while considering the application for grant of injunction. The learned Presiding Officer neither considered the prima facie case, the balance of convenience or irreparable loss nor enquired about the result of the CMA.521/2007, which was filed against his own order passed in O.P.2427/2006. 26. We are of the opinion that the conduct of the parties is also a relevant factor while considering the application for grant of injunction. The conduct of the contractor, which has been dealt with in detail in the foregoing paragraphs, the way in which he has been approaching the Civil Court and this Court, and having availed the provisions of Sec.9 of the Arbitration Act in O.P.2427/2006 during pendency of CMA.521/2007, more so, when the arbitration application is pending on the file of this Court, discloses that he is not entitled for an ex parte interim injunction. Therefore, we are of the opinion that though the appellate Court would be slow in interfering with the discretionary jurisdiction of the trial Court, but we are of the opinion that the discretion exercised by the Court below is arbitrary, capricious and perverse as the Court below ignored the settled principles of law regulating the grant or refusal of the interlocutory injunction. 27. Accordingly, we set aside the order under appeal, and the Civil Miscellaneous Appeal is allowed with costs.