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2010 DIGILAW 397 (DEL)

Fast Trax Food Pvt. Ltd. v. Elena Norman & Ors.

2010-03-09

V.K.SHALI

body2010
V.K. Shali, J.:- (oral) 1. This order shall dispose of an application filed by the plaintiff under Order 39 Rules 1 and 2 CPC seeking an ex parte ad interim stay against the defendant Nos.1 to 3 from permitting sale or service of any food or beverages by the defendant no.5 or any other third party in the entire stadium including VIP lounge and media centre during the FIH Hockey World Cup, 2010 being held at New Delhi from 28.2.2010 to 13.3.2010. 2. Briefly stated the facts as alleged by the plaintiff in the suit are that the plaintiff had entered into an agreement dated 09.2.2010 with the defendant no.1 by virtue of which the plaintiff was granted exclusive rights to serve food and beverages in the entire stadium including general public, VIPs, VVIP's fixed staff from the various locations in the Major Dhyan Chand Hockey Stadium (National Stadium), New Delhi where the World Cup Hockey Tournament was to be held from 28.2.2010 to 13.3.2010. It is alleged that defendant no.3 had signed the agreement for and on behalf of defendant nos.1 and 2 and the relief clause of the agreement laid down as under:- “Serving Food and Beverages exclusive to the entire stadium including General Public, VIPs, Media, VVIPs, Fixed Staff from various locations, with a variety of menu, at variable rates as per terms of signed ag. Broadcast crew exception as already have supplies in place. Café Coffee day shall strictly sell only Tea and Coffee from their duly assigned area. Any further items if sold by Café Coffee Day will be considered as a Breach of Agreement. Allotment of 3 Food counters in the stadium, 4 outside the stadium and an additional storage outside the stadium. Assurance to restrict sale of any kind of Outside Food and beverage irrespective of any condition throughout the tournament. Exclusive right to operate food stalls in and around the stadium.” 3. It is alleged that after having entered into an agreement and making the plaintiff to pay a hefty amount of Rs.25 lacs in favour of defendant no.3, the defendants have unilaterally without any rhyme or reason permitted coca cola company to set up the stalls for the purpose of serving and selling coca cola at different venues in the stadium itself. It is contended that this was in total breach of the agreement which was entered into by the defendants with the plaintiff and accordingly has prayed for a prohibitory ad interim injunction order restraining the defendants from giving permission to anybody else or Coca Cola to put up a stall and to sell the beverages in the stadium. It has also been averred that though the tournament started on 28.2.2010 but as the tournament will last for another 4 to 5 days then at least for this period, the defendants be restrained from permitting Coca Cola to set up the stalls and sell the beverages/cold drinks manufactured by them. 4. Notices were issued to the defendants out of which defendant Nos.1 ,3 and 5 have put in appearance through counsel. On account of paucity of time, no reply has been filed by them but a set of documents were handed over to the Court as well as to the learned counsel for the plaintiff by the said defendants. 5. I have heard the learned Senior Counsel for the plaintiff and for the defendant Nos.1 to 3 and have perused the record. 6. The main contention of the learned Senior Counsel for the plaintiff is that the defendants having entered into an agreement dated 09.2.2010 with the plaintiff giving therein the exclusive right to sell the food and beverages to the plaintiff in the entire stadium which consists of general public, VVIP's and VIP's lounge, media etc., they had foreclosed their right to appoint another manufacturer or party from selling the coca cola in the stadium. It was contended that the defendants had taken a hefty amount of Rs.25 lacs from the plaintiff for signing this agreement and since the time this fact came to the notice of the plaintiff that the defendants were permitting Coca Cola to set up a stall for sale, he firstly approached the defendants and requested them to take corrective steps and as they failed to do so, the plaintiff was constrained to file the present petition in Court only on 05.3.2010. 7. 7. It is contended by the learned Senior Counsel that since this tournament is to last further for another 4-5 days only, at least for this period, a prohibitory injunction be issued in favour of the plaintiff and against the defendants preventing any other organization or person from selling the beverages in stadium to the detriment and in violation of the agreement signed between the plaintiff and the defendants. 8. The learned Senior counsel for the defendant Nos. 1 to 3 raised question regarding maintainability of the suit and consequently urged that if the suit itself is not maintainable, ex parte ad interim injunction cannot be issued. It was also contended by the learned Senior counsel for the defendant Nos. 1 to 3 that the plaintiff has not presented the correct facts and has concealed certain documents which have a vital bearing on the case. While elaborating the submissions further, it was contended by Mr.Jayant Bhushan, learned Senior counsel for the defendant that in the first instance the plaintiff has made wrong averments to the effect that the agreement was signed on 09.2.2010. The learned counsel has drawn the attention of the Court to the correspondence/e-mail between the plaintiff and the organizing Committee of Hockey Federation through which they had entered into the agreement with the plaintiff on 13.2.2010. It was contended that the agreement has been entered into between the plaintiff and the said Organizing Committee through its treasurer, Sh.N.Batra and this has been misrepresented to this Court as if the agreement is signed between the plaintiff and the defendants which is not a correct fact. It was contended that this fact was in the knowledge of the plaintiff yet the plaintiff has not chosen to make the Organizing Committee or Mr.N.Batra as a party and therefore, the suit itself is liable to be rejected 9. It was contended that this fact was in the knowledge of the plaintiff yet the plaintiff has not chosen to make the Organizing Committee or Mr.N.Batra as a party and therefore, the suit itself is liable to be rejected 9. The second submission of the learned Senior counsel Mr.Jayant Bhushan, learned Senior counsel is that an ex parte ad interim injunction prohibiting the sale of Coca Cola manufactured by Coca Cola Company cannot be granted in favour of the plaintiff and against the defendants for the reason that the agreement between the Federation i.e. defendant nos.1 to 3 and Coca Cola was actually entered much prior to the agreement entered between the plaintiff and the defendants and secondly, the agreement on the basis of which the plaintiff is claiming a prohibitory injunction is a kind of agreement of which a specific performance cannot be granted by the Court because in terms of Section 14(a) of the Specific Relief Act even if the breach of the said agreement dated 09.2.2010 takes place, the plaintiff can be sufficiently compensated in terms of money. It is urged that it is a settled legal position that the Court will not issue injunction to prevent a breach of a contract of which specific performance cannot be granted by the Court. The attention of the Court has been drawn to Section 41 (e) of the Specific Relief Act. 10. I have carefully considered the submissions made by the respective sides. I feel that the submissions which have been made by the learned counsel for the plaintiff have no merit and no ex parte ad interim injunction order can be passed in favour of the plaintiff and against the defendants for the following reasons :- (a) the plaintiff has made a misstatement of fact that the agreement is signed between the plaintiff and the defendants on 09.2.2010, while as the agreement is signed between the Organizing Committee through its Treasurer Sh.N.Batra and the plaintiff. Admittedly, the Organizing Committee has not been made as a party. Even Sh.N.Batra who has signed the agreement has not been made a party. The agreement is prima facie showing that it has been signed on 13.02.2010. Admittedly, the Organizing Committee has not been made as a party. Even Sh.N.Batra who has signed the agreement has not been made a party. The agreement is prima facie showing that it has been signed on 13.02.2010. Therefore, the entire basis of the case of the plaintiff is actually not based on correct facts and further the plaintiff has chosen not to make Organizing Committee as a party to the suit and therefore, the suit is liable to be rejected for non-joinder of the necessary party. In any case, there is no privity of contract between the plaintiff and the present defendants on the basis of the agreement relied upon by the plaintiff which would warrant grant of interim relief. (b) The second reason is that the plaintiff has been guilty of concealment of fact. It has chosen not to place on record all the documents. The defendant has placed before this Court a letter/e-mail exchanged between the plaintiff and the defendant which clearly shows that the officials of the plaintiff had almost reconciled to the fact that the manufacturer of Coca Cola were roped in for the purpose of setting up of stalls for the purpose of selling beverages in VVIP's lounge, VIP's lounge or the media. This fact was known to the plaintiff as early as on 10.2.2010 yet the plaintiff has chosen to approach the Court at a belated stage and thus try to put a spoke into the smooth functioning of the games held at the International Level. (C) Thirdly, the basic fundamental of Specific Relief Act, if we read Section 10 to 14 and 36 as well as Section 41 (e), and (f), clearly shows that if the breach of a contract which can be adequately compensated in terms of money cannot be specifically enforced, then injunction cannot be granted. In the instant case, even if the entire facts are taken to be in favour of the plaintiff this is at best is a breach of contract which can be adequately compensated in terms of money. Section 41 (e) of the Specific Relief Act also specifically enjoins that no injunction can be granted in case the suit for specific performance is not maintainable. 11. The plaintiff does not have a prima facie case. Section 41 (e) of the Specific Relief Act also specifically enjoins that no injunction can be granted in case the suit for specific performance is not maintainable. 11. The plaintiff does not have a prima facie case. For the reasons mentioned above, I am of the view that the plaintiff is not entitled to any ex parte ad interim injunction order restraining the defendants or their representative/assigns/agents from carrying out their business in the stadium. 12. Accordingly, the application of the plaintiff for grant of ad interim injunction stay is dismissed.