JUDGMENT : Soumen Sen, J. The apparent conflict between the shareholders of the plaintiff No. 1 has resulted in the institution of a suit by the plaintiffs seeking specific performance of several agreements between the petitioners and the respondent Nos. 1 to 38 and a declaration that the petitioner-Company is exclusively entitled to be the sole purchasing representative in perpetuity of the respondent Nos. 2 to 38 for procurement of the goods and services from India. The petitioners have also claimed perpetual injunction restraining the respondent Nos. 39 to 42 from acting in breach of negative covenant as pleaded in Paragraph 42 of the Plaint. 2. The reliefs in the suit as well as in this application are based on a plea of pre-incorporated contracts, oral agreements, collaboration agreement and a shareholder's agreement followed by conduct of the parties for almost 20 years giving a special right in favour of the plaintiff to exclusively supply materials to Arcelor-Mittal Companies (hereinafter referred to as "AM Companies") outside India after procuring the materials, inter alia, from the respondent Nos. 39 to 42. The plaintiff claims that apart from the agreements pleaded in the last 20 years, the parties have proceeded on the basis that the plaintiff No. 1 shall act exclusively as a sole purchasing representative of the respondent Nos. 2 to 38 for procurement of goods and services from India and the petitioner No. 1 in performance of the terms of the agreement have identified the respondent Nos. 39 to 42 as vendors for export of goods and services to the Arcelor-Mittal Group of Companies. Commercial relationship with each of the said defendants was established by the plaintiff Company in the first instance and after being assured that the said defendant companies would be qualified to service the things and requirement of the AM Companies. Such relationship between the plaintiff Company and the said defendants has been continuing for decades and the said defendants amongst others are four of the existing suppliers through whom the plaintiffs effect supply of re-factory materials and other allied goods to the Arcelor-Mittal Companies. Such relationship between the plaintiff Company and the said defendants has been continuing for decades and the said defendants amongst others are four of the existing suppliers through whom the plaintiffs effect supply of re-factory materials and other allied goods to the Arcelor-Mittal Companies. The plaintiff No. 1 owes its origin to an agreement entered into between the petitioner No. 2 and the first respondent whereby the respondent No. 2 appears to have agreed that for the purpose of sourcing supply of goods and services from India for various companies belonging to the first respondent, a joint-venture Company would be set up in India. The petitioner Company was, thereafter, incorporated and started carrying on business of supplying goods to the companies controlled worldwide by the first respondent on and from 1996. 3. Under the arrangement, it is alleged that the proposed company would have the exclusive right to purchase for and on behalf of the Arcelor-Mittal Group of Companies, all their requirements from India, and no other party would be permitted or authorized to perform any such function whatsoever. The proposed company would be permitted to earn and retain a net profit not to be in excess of 5% of the modalities for disbursement of any excess profit over and above 5 % would be decided by the first defendant at his absolute discretion. Following such arrangement, it is alleged that on 12th August, 1996, the plaintiff company was promoted, established and incorporated at Calcutta. Between the years 1996 and 2003, the total sales in terms of the aforesaid arrangement by the plaintiff company were Rs. 292 crores approximately. All the said sales were made to the Arcelor-Mittal Companies only. Following such arrangement, it is alleged that on 12th August, 1996, the plaintiff company was promoted, established and incorporated at Calcutta. Between the years 1996 and 2003, the total sales in terms of the aforesaid arrangement by the plaintiff company were Rs. 292 crores approximately. All the said sales were made to the Arcelor-Mittal Companies only. The process of procurement of the materials under the aforesaid arrangement as pleaded is:- (a) The Mittal Companies would exclusively forward all their enquiries (RFQs) for supply of goods or services to the plaintiff company at its said office at Kolkata upon receipt of which the plaintiff company would select the local vendor to supply the requirement product; (b) A quotation from the chosen supplier or vendor would be forwarded to the overseas buyer, and if approved it was followed by a supply agreement being executed between the purchaser and the plaintiff company; (c) The orders placed would be on a principal-to-principal basis between the plaintiff company and the prospective purchaser only, there being no contractual privity between the purchaser and the manufacturer, with whom the plaintiff company would enter into a separate and independent contract together; (d) All steps taken in India to make the export from different parts in India to the overseas customers would be responsibility of the plaintiff company who would then perform the export in conjunction with the concerned vendor; (e) All customs and excise benefits arising from any transaction of export done following the aforesaid procedures would be to the credit and entitlement of and be appropriated by the plaintiff company; 4. The defendant Nos. 39 to 42 are amongst the suppliers selected by the plaintiff company to make exports to the Arcelor-Mittal Group of Companies. 5. The learned Senior Counsel has referred to the collaboration agreements, the shareholders agreements and the amendment to the shareholders agreements to show that the Arcelor-Mittal Group of Companies have all throughout recognized that all their requirements are to be procured only through and from the petitioner No. 1 only. The respondent Nos. 1 to 38, however, in derogation of their obligation under the said agreement initiated discussions with respondent Nos. 39 to 42 for procuring the materials directly through them. The respondent Nos. 1 to 38, however, in derogation of their obligation under the said agreement initiated discussions with respondent Nos. 39 to 42 for procuring the materials directly through them. In few cases, the vendors remonstrated such direct approach and raised questions with regard to the modalities being suggested by the Arcelor-Mittal Group of Companies for direct procurement of the materials disregarding the existing arrangement and in this regard, the learned Senior Counsel has referred to the e-mails dated 5th May, 2015 from the respondent No. 40 to Arcelor Mittal, 14th July, 2016 and 13th November, 2016 from Vesuvius Group to Arcelor Mittal. 6. The e-mail dated 24th May, 2016 in which the respondent No. 40 raised question marks with regard the e-mail received by them from Arcelor Mittal requesting to discuss and negotiate the price for the Ukraine project directly with them and to send a direct code from TRL to DAV Kryvyi Rih. 7. The learned senior Counsel has referred to various charts disclosed in this proceeding to show that, in fact, substantial purchases have been made by the Mittal Group of Companies through the petitioner No. 1 and the vendors being the defendant Nos. 39 to 42 have all along recognized that all purchases of the Mittal Group of Companies are to be routed through the plaintiff No. 1. The recent communications between the respondent No. 4 and Arcelor Mittal was completely flabbergasted the petitioner as the said respondent Nos. 1 to 38 are now acting in derogation in their obligation with a view to completely ruin the petitioner No. 1. The petitioner No. 1 was formed solely to cater to the needs of the Mittal Group of Companies and the shareholders agreements clearly recognize the role of the petitioner as the only procurement agent for the respondent Nos. 1 to 38. In fact, the respondent No. 3 is a shareholder of the petitioner No. 1 and is duty bound to ensure that the existing arrangements are not being disturbed. It is submitted that although the collaboration agreement and the shareholders agreement contemplate termination on the happening of certain events, but, in effect, the agreement is in perpetuity inasmuch as the respondent No. 3 or for that matter none of the other respondents have served any notice of termination of the existing arrangement. 8. It is submitted that although the collaboration agreement and the shareholders agreement contemplate termination on the happening of certain events, but, in effect, the agreement is in perpetuity inasmuch as the respondent No. 3 or for that matter none of the other respondents have served any notice of termination of the existing arrangement. 8. The agreement contemplates a separate agreement to be entered into between the petitioner No. 1 and the suppliers. After the said supplier is identified and its terms and conditions are accepted and the said agreement has nothing to do with the principal agreement existing between the petitioner No. 1 and the Mittal Group of Companies. 9. The learned Senior Counsel has submitted that there are two distinct obligations, one is with regard to the agreement between the petitioner and the Mittal Group of Companies and the other is supply agreements between the vendors and the petitioner No. 1. The arrangement is such that the suppliers cannot directly make supplies to the respondent Nos. 1 to 38 and at the same time, the respondent Nos. 1 to 38 are not entitled to obtain supplies directly from the respondent Nos. 39 to 42. 10. The learned Senior Counsel has referred to the observations made by this Court in AP No. 1034 of 2016 (Arcelor Mittal Design & Engineering Centre Pvt. Ltd. v. Lindsay International (P) Ltd. & Ors.) in which it was observed that Arcelor Mittal do not allege that the petitioner herein has failed to ensure supply of materials to the Mittal Companies on the basis of the orders placed by them from time to time. 11. The main thrust of the argument of the petitioner is that all the agreements are required to be read as a whole and a fair reading of all the agreements together would unmistakably show that for all intents and purposes, the petitioner No. 1 Company was and is to act as the sole selling agent for the Mittal Group of Companies. 12. It is submitted that on a true and proper construction of the various agreements between the parties coupled with the manner in which the parties have conducted themselves in relation to the transactions, there would not be any doubt that the contract is a permanent one. The very fact that the Mittal Group of Companies are directly negotiating with the respondent Nos. The very fact that the Mittal Group of Companies are directly negotiating with the respondent Nos. 39 to 42 for the purpose of procuring the materials disregarding the existing arrangement is a clear breach of the implied negative covenant and a breach of implied covenant can be restrained by injunction although it may contain in a contract for the sale of goods. In the event such things happened, it would completely ruin the business of the plaintiffs and an action for damages would afford no protection and certainly no adequate protection. 13. The learned Senior Counsel would persuade this Court to look into the substance of the agreements between the parties rather than to the form in order to hold in favour of the plaintiffs that there is a breach of negative covenant and, accordingly, to pass an order of injunction in its favour. The learned Senior Counsel has referred to Thomas Marshall (Exporters) Ltd. v. Guinle reported at (1978) 3 All ER 193 and LLANELLY Railway and Dock Company v. London & North-Western Railway Company reported at 1873 L.R. 942 at 949 and submits that prima facie every contract is permanent and irrevocable, and that it lies upon a person who says that it is revocable or determinable to show either some expression in the contract itself, or something in the nature of the contract from which it is reasonably to be implied that it was not intended to be permanent and perpetual, but was to be in some way or other subject to determination. An unilateral repudiation of contract by the respondent No. 3 or any other respondents keeps the contract in force including the restrictions as to supply of materials. 14. The learned Senior Counsel anticipating that the defendant may rely upon the termination clause in the Shareholders Agreement might contend that the contract is terminable by giving notice has referred to Decro-Wall International S.A. v. Practitioners in Marketing Ltd. reported at (1971) 2 All ER 216 in support of the argument that the fact that the contract was a permanent one did not prevent the Court from granting an injunction although the contract may be terminable with reasonable notice. It is submitted that the oral agreement followed by continuous and uninterrupted supply to AM Companies by the suppliers through the plaintiff No. 1 and the subsequent MOU dated 28th October, 2016 with respondent Nos. It is submitted that the oral agreement followed by continuous and uninterrupted supply to AM Companies by the suppliers through the plaintiff No. 1 and the subsequent MOU dated 28th October, 2016 with respondent Nos. 41 and 42 clearly establish an implied negative covenant that the sellers would not sell its goods to anyone other than the buyer. Much emphasis is laid on the recitals of MOU dated 28th October, 2016 to show that the respondent Nos. 41 and 42 has recognized sourcing of materials to AM Companies exclusively through the plaintiff No. 1. The withholding of payment to some of the vendors cannot be construed to be a fundamental breach. The plaintiffs have genuine grievance in the manner in which the Mittal Group of Companies started behaving since May, 2016 as they have acted in derogation of the agreements and by reason of such derogatory act, the plaintiffs have suffered damages. Moreover, the defendant Nos. 41 and 42 have entered into a MOU with the plaintiff with regard to the amounts receivable by it from the Mittal Group of Companies and although the plaintiffs have acted in terms of the MOU, said defendant Nos. 41 and 42 have arbitrarily terminated the said MOU without assigning any reason. It is submitted that MOU is dated 28th October, 2016 and the letter of termination is dated 5th December, 2016. The documents required to be sent in terms of MOU, were forwarded on 3rd December, 2016. The said defendant Nos. 41 and 42 without even responding to such documents forwarded on 3rd December, 2016 have arbitrarily cancelled the said MOU. It is submitted that the defendant Nos. 2 to 38 do not deny that the entire consideration amount has not been paid for which supplies were made. The said defendants also do not deny that there has been any failure to supply materials to the said defendants under the agreement. The act of bypassing the existing arrangement by the plaintiffs in seeking to procure the materials directly from the vendors being defendant Nos. 39 to 42 is contrary to the agreed terms. Since the plaintiffs have raised objection with regard to such derogatory conduct and insisted that each of the vendors do not act in derogation of their existing arrangement and/or agreement with the plaintiffs a sum of Rs. 16.8 crores was withheld. The defendant Nos. 39 to 42 is contrary to the agreed terms. Since the plaintiffs have raised objection with regard to such derogatory conduct and insisted that each of the vendors do not act in derogation of their existing arrangement and/or agreement with the plaintiffs a sum of Rs. 16.8 crores was withheld. The defendant Nos. 41 to 42 have understood the difficulties and, in fact, have entered into a MOU which later on they cancelled arbitrarily notwithstanding the fact that the plaintiffs were ready and willing to perform their obligation under the MOU. 15. The prayer for interim order was opposed by the respondents. 16. Mr. Jayanta Kr. Mitra, the learned Senior Counsel appearing on behalf of the Arcelor Mittal Design & Engineering Centre Pvt. Ltd. in the respondent No. 3 submits that the basis of the claim of the plaintiff for injunction is based on an oral agreement of negative covenant not supported by any evidence and is contrary to record. It is submitted that the agreement disclosed in the proceeding would not show that at any point of time, the defendant Nos. 1 to 3 jointly or severally had agreed to procure the requirements of the defendant Nos. 1 to 38 only from the plaintiff No. 1. 17. Mitra has referred to Clause 2.8 of the Shareholder's Agreement and submits that it is unequivocally clear from the reading of Clauses 2.8, 2.9, 2.10 and 2.14 that the Arcelor Mittal Companies follow a principle of open competitive tendering for all significant purchases and the parties have agreed that the Arcelor-Mittal Companies would use all reasonable endeavours to forward the requests for quotations (RFQ) to Lindsay or an Affiliate, allowing it to participate in bids to supply, on a non-exclusive basis, certain products and/or services to Arcelor Mittal Companies registered, or conducting business, outside India. It is submitted that by using the adverb "allowing" in Clause 2.8 read with the phrase of 'nonexclusive basis' clearly spells out the intention of the parties that Lindsay or an Affiliate would be allowed to participate in bids to supply on a nonexclusive basis which completely demolishes the story made out in the petition that the agreements and subsequent conduct following the Shareholder's Agreement leads to a conclusion that the Arcelor Mittal Companies would only procure materials through Lindsay and not from anyone else. It is submitted that special right is created in favour of Lindsay which would enable Lindsay to enforce a claim of non-exclusivity. The learned Senior Counsel has referred to Clause 2.5 to show that the earlier agreements stand terminated and for the present moment, the Shareholder's Agreement is the only agreement that is required to be looked into in view of Clause 28 of the Shareholder's Agreement. 18. The learned Senior Counsel has also referred to the Amendment No. 1 to the Shareholder's Agreement dated 21st January, 2010 that was entered into on 29th February, 2016. The attention of the Court is drawn to Clause 3 and Clause 5 of the Amendment Agreement which reads:- "3. Add the following new article 2.15.6: "If an offer or contract presented by Lindsay to an Arcelor Mittal Company is not technically satisfactory or commercially competitive, then that Arcelor Mittal Company may consult the Indian market and source Products or Services directly from an alternative supplier. In the event an Arcelor Mittal Company is not satisfied with an offer from Lindsay, the offer will be reviewed by the Arcelor Mittal Company with Lindsay before that Arcelor Mittal Company decides to take alternative direct offer." "5. Add the following new article 2.22: "Lindsay may source Products or Services including CAPEX not listed in Schedule 7 only at the request of an Arcelor Mittal Company. Specifically for Commodities: (i) any resulting contract must be between the supplier and the Arcelor Mittal Company; (ii) Lindsay's only remuneration for the transaction must come from the supplier, in the form of a "seller's commission" or similar, and (iii) the Arcelor Mittal Company will mandate Lindsay to facilitate the sourcing of Commodities." 19. It is argued that Lindsay has defaulted in making payment to various suppliers being the defendant Nos. 39 to 42 although substantial payments have been made for the supplies made by those suppliers and routed through Lindsay in terms of the agreement as a result whereof the reputation of Arcelor Mittal Companies have suffered and future payments are although in the pipeline but not released to the plaintiff No. 1 as the defendant No. 1 and its group companies have genuine apprehension that in the event the payments are made to Lindsay, the sellers being the defendant Nos. 39 to 42 would not ultimately get payment. 39 to 42 would not ultimately get payment. In fact, the Arcelor Mittal have received complaints from the sellers that they are not receiving payments from Lindsay. The plaintiff No. 1 having failed to perform its obligation cannot, in any event, claim any equitable relief in this proceeding. 20. The learned Senior Counsel submits that the agreement is determinable in nature inasmuch as the exclusivity is claimed on the basis of an oral agreement which is contrary to the written terms inasmuch as the terms of the oral agreement are unclear and not certain. In view thereof, the said alleged oral agreement is not enforceable in law. The learned Senior Counsel has referred to sections 14(1), 19 and 41(e) of the Specific Relief Act and submits that the plaintiff at the highest is entitled to a certain percentage of commission of the transaction value. The plaintiff may have a claim on account of damages if ultimately the plaintiff is able to prove breach of the defendants. It is submitted that specific performance will not be ordered where damages are adequate remedy and if the party applying for relief is guilty of a breach of contract or guilty of wilful conduct. It is submitted that in the event the interpretation of the contract as given by the plaintiff is accepted then the said agreement is required to be construed to be an agreement in perpetuity with no right to the defendants to terminate the contract. This interpretation goes against the principle of freedom of contract inasmuch as the agreements relied upon by the plaintiff are incapable of such interpretation. It is submitted that once the mutual trust, faith and confidence is lost, the defendants cannot be directed to procure orders from the plaintiff No. 1 only and any such condition and/or interpretation of the agreements would result in restraint of trade. It is submitted that unless the Court arrives at a finding that there is any negative stipulation implied in the contract, the Court cannot grant any injunction to restrain the breach of the negative stipulation. Every affirmative stipulation to do a positive thing must of itself imply a negative stipulation not to do anything inconsistent therewith. It is submitted that unless the Court arrives at a finding that there is any negative stipulation implied in the contract, the Court cannot grant any injunction to restrain the breach of the negative stipulation. Every affirmative stipulation to do a positive thing must of itself imply a negative stipulation not to do anything inconsistent therewith. The affirmative stipulation does not of itself imply a negative stipulation to do nothing inconsistent with it for if such an implication were to be made and the Court were to enforce such a negative stipulation, the Court would in effect be granting a decree for specific performance. It is submitted that there has to be something in the agreement, apart from an affirmative agreement, which would show that the promiser has expressly or by necessary implication agreed not to sell the materials to any person other than the Lindsay. There is no such covenant in the instant proceeding. The learned Senior Counsel in making reference to section 42 of the Specific Relief Act submits that the negative stipulation may be express or implied but it must be a distinct negative stipulation. The negative stipulation cannot be implied merely from the existence of the affirmative stipulation. The affirmative stipulation does not of itself imply a negative stipulation to do nothing inconsistent with it. There must be something in the contract apart from the affirmative stipulation from which the negative stipulation can be spelt out by necessary implication. 21. In support of the aforesaid argument, the learned Senior Counsel has relied upon the following decisions:- i) Vinod Chandra Hiralal Gandhi v. Vivekanand Mills Ltd. reported at AIR 1967 Gujarat 255; ii) Gujarat Bottling Co. Ltd. & Ors. v. Coca Cola Co. & Ors. reported at (1995) 5 SCC 545 ; iii) Cogent Silver Fibre Pvt. Ltd. v. Noble Fibre Technologies Inc. & Ors. reported at AIR 2006 Delhi 292; iv) Percept D'Mark (India) (P) Ltd. v. Zaheer Khan & Anr. reported at (2006) 4 SCC 227 . 22. The learned Senior Counsel has also referred to Paragraphs 858, 860, 861 and 862 of the celebrated book "A Treatise on the Specific Performance of Contracts" by The Rt. Hon. Sir Edward Fry, in order to show that the decision in Lumley v. Wagner; 1 De G.M. & G. 604 has been doubted in the subsequent decisions. The said paragraphs read:- "858. Hon. Sir Edward Fry, in order to show that the decision in Lumley v. Wagner; 1 De G.M. & G. 604 has been doubted in the subsequent decisions. The said paragraphs read:- "858. In De Mattos v. Gibson, 4 De G. & J. 276, Lord Hatherley (then V.C.) thought that the implication of a negative stipulation was to be confined to cases in which "the breach of a positive agreement involves specific damage beyond that of the mere non-performance of the agreement itself" - the special damage (in Miss Wagner's case) resulting from her singing elsewhere at a rival theatre, ultra the nonperformance of her contract to sing at the plaintiff's theatre: and in another case, the same learned Judge observed that the instances in which the Court had found it possible to infer the negation were very few and special. 860. The doctrine in Lumley v. Wagner (supra) has been criticised by Lord Selbourne: and after his observations it is doubtful whether the mere presence of a negative stipulation can be relied on, if the contract is not such in its nature as to be the proper subject of equitable jurisdiction. "It was sought in that case," said his Lordship, "to enlarge the jurisdiction on a highly artificial and technical ground, and to extend it to an ordinary case of hiring and service, which is not properly a case of specific performance; the technical distinction being made, that if you find the word 'not' in an agreement-'I will not do a thing'-as well as the words 'I will,' even although the negative term might have been implied from the positive, yet the Court, refusing to act on an implication of the negative, will act on the expression of it. I can only say, that I should think it was safer and the better rule, if it should eventually be adopted by this Court, to look in all such cases to the substance and not to the form. If the substance of the agreement is such that it would be violated by doing the thing sought to be prevented, then the question will arise, whether this is the Court to come to for a remedy. If it is, I cannot think that ought to depend on the use of a negative rather than an affirmative form of expression. If the substance of the agreement is such that it would be violated by doing the thing sought to be prevented, then the question will arise, whether this is the Court to come to for a remedy. If it is, I cannot think that ought to depend on the use of a negative rather than an affirmative form of expression. If, on the other hand, the substance of the thing is such, that the remedy ought to be sought elsewhere, then I do not think that the forum ought to be changed by the use of a negative rather than an affirmative." The view thus plainly expressed by Lord Selborne had been indicated in an earlier case before Lord Hatherley, when Vice-Chancellor. The object of the bill in that case was to enforce the specific performance of a contract to employ the plaintiff as broker, which contained a stipulation that the plaintiff's name should appear in all advertisements of the company. To it the defendants demurred, and the only point on which the Judge entertained any serious question was whether the stipulation as to advertisements did not bring the case within the principle of Lumley v. Wagner: but he determined that it did not, and that, as the defendants did not employ the plaintiff as broker, the Court could not restrain their issue of advertisements omitting his name. 861. In a case already cited (in which a company's manager had agreed to "give the whole of his time to the company's business," and, there being no negative stipulation, an injunction was refused) Lindley L.J. said he looked upon Lumley v. Wagner "as an anomaly which it would be very dangerous to extend." In accordance with this view, Kekewich J., in Davis v. Foreman, declined to enforce by injunction a stipulation, contained in a contract of service, which, though negative in form, was positive in substance. And again, where a negative stipulation in such a contract was of so wide and general a character as to be unreasonable, Romer J. refused to enforce it. 862. The position of that branch of the law on which Lumley v. Wagner is the leading authority can hardly be said to be very satisfactory. And again, where a negative stipulation in such a contract was of so wide and general a character as to be unreasonable, Romer J. refused to enforce it. 862. The position of that branch of the law on which Lumley v. Wagner is the leading authority can hardly be said to be very satisfactory. It may, it is conceived, be concluded that the principle of this case will not be extended: that negative stipulations will not be implied except in the cases where the Courts have already done so: and that even the presence of an express negative stipulation will not be found a sufficient ground for jurisdiction unless the contract is of a kind of which specific performance can be granted. In other words, it is probable that the Court will hereafter, except so far as it." 23. Mr. Anindya Kumar Mitra, the learned Senior Counsel appearing on behalf of the respondent No. 41 submits that there is no agreement in writing between the plaintiff and the defendant No. 41 which contains any negative stipulation inasmuch as there cannot be an oral agreement between the petitioner and the respondent as alleged by the petitioners. 24. The plaintiffs have made out an absurd case of a contract by conduct. If a party has in the past sold its goods to another party (assuming exclusively) for last 20 years does it give rise to a contract that such party will go on supplying the materials to the other party in future for another 20 years or 40 years or 60 years or for how many years? It is an absurd case. The contract by conduct as alleged will lead to an uncertain contract, which will be an invalid contract. That this transaction continued for more than 20 years is falsified by the plaintiff by the statements made in paragraphs 2(f) and 2(i) of the petition and paragraph 45 of the plaint. It has been admitted by the plaintiff that the transaction discontinued in March, 2016. It is stated that the procedure was followed from 1996 until shortly after March, 2016. 25. It is, thus, followed from the agreement that the Court will not grant an injunction which would in the particular circumstances put the defendant in a position which he would in practice be compelled to continue with such a contract. 26. It is stated that the procedure was followed from 1996 until shortly after March, 2016. 25. It is, thus, followed from the agreement that the Court will not grant an injunction which would in the particular circumstances put the defendant in a position which he would in practice be compelled to continue with such a contract. 26. Although the plaintiff during the argument has sought to refer to the MOU dated 28th October, 2016 but the plaintiff's case is not based on the MOU. The plaintiff has alleged separate oral agreement made in the year 1999. Reliance on the recital A in MOU is destructive of the plaintiff's case. The recital in MOU is confined to goods already supplied and does not suggest any agreement for future supply. This recital does not recite that in future IFGL shall agree to supply to plaintiff No. 1 for use of Arcelor Mittal on exclusive basis. This recital does not mention that there has been any oral or written agreement between IFGL and the plaintiff No. 1 to the effect that IFGL will supply refractory materials to the plaintiff No. 1 on exclusive basis and for how long. In fact, this recital destroys the case of oral agreement allegedly made in 1999. Had there been any such oral agreement in 1999 the same would have been referred to and mentioned in the MOU dated 28th October, 2016. This recital also states that "for this purpose LIPL has been placing orders on IFGL from time to time". Purchase orders placed by the plaintiff No. 1 upon IFGL for the period from 12th February, 2016 to 19th April, 2016 and purchase orders placed on the other IFGL concern do not mention that IFGL will supply to LIPL alone exclusively for supply to Arcelor Mittal. 27. It is admitted in the recital that the purchase will be made by plaintiff No. 1 from IFGL by placing purchase orders which is a fact. Terms of purchase orders are contained in written purchase orders, oral agreements are inadmissible. Purchase orders annexed to petition clearly show that there is no stipulation that procurement from IFGL is on exclusive basis or that IFGL cannot sell materials to anybody else. This MOU dated 28th October, 2016 was terminated by IFGL before this suit. Terms of purchase orders are contained in written purchase orders, oral agreements are inadmissible. Purchase orders annexed to petition clearly show that there is no stipulation that procurement from IFGL is on exclusive basis or that IFGL cannot sell materials to anybody else. This MOU dated 28th October, 2016 was terminated by IFGL before this suit. Only one purchase order dated 19th August, 2016 wherein for the first time the exclusive clause was sought to be introduced by the plaintiff No. 1. This clause was not agreed to by IFGL. Previous orders do not contain such stipulation. 28. It is argued that in Paragraph 40 of the plaint the plaintiff has alleged an oral agreement is the only sheet anchor of the plaintiff as against IFGL. A company can enter into an oral agreement only through a duly authorized person. The oral agreement as pleaded is vague and does not comply with the requirement of section 46(2) of the Companies Act, 1956. The person who will represent the defendant Nos. 41 and 42 is not mentioned. Secondly, there is no averment that the defendant entered into such oral agreement through a duly authorized person. Thirdly, there is no mention of any authorized person through whom the defendant company entered into the alleged oral agreement. This oral agreement as pleaded cannot be relied upon by the Court particularly at this ad-interim stage. 29. Mr. Mitra made scathing remark about the vagueness and uncertainty of pleading alleging an oral agreement. It is submitted that the basic foundation of negative covenant is clearly missing from the averments made in the Plaint and the terms and conditions of an oral agreement of which a specific performance is sought for by the petitioner is uncertain and vague. It is submitted that a contract by nature is determinable unless there are stipulations which lead to an irresistible conclusion that the contract is permanent and cannot be terminated. The conduct relating to an irresistible conclusion that the contract is not terminable has to be established. An oral agreement of which specific performance is sought for requires a highest degree of certainty inasmuch as the contract pleaded must be specified one and the same must be established by convincing evidence. 30. The conduct relating to an irresistible conclusion that the contract is not terminable has to be established. An oral agreement of which specific performance is sought for requires a highest degree of certainty inasmuch as the contract pleaded must be specified one and the same must be established by convincing evidence. 30. It is submitted that the burden of proving an oral agreement is on the plaintiff and the task is all the more difficult since the Court is required to construe the terms of which the parties have agreed to perform. The case made by the plaintiff has to be probable and before a Court can grant a decree for specific performance, the Court has to be satisfied that the contract pleaded is a specific one. It is argued that the Court would extremely chary to grant a decree for specific performance on the basis of an agreement supported solely by oral evidence is based on the decision of the Hon'ble Supreme Court in Ouseph Varghese v. Joseph Aley & Ors. reported at 1969 (2) SCC 539 . 31. It is submitted that the Plaint has been filed as a counter-blast to a proceeding initiated by the said defendant under section 9 of the Arbitration and Conciliation Act to realize its lawful dues. It is submitted that the order passed in the said proceeding would show that the plaintiffs are in breach. A party claiming specific performance has to show and establish that he had performed the contract and is ready and willing to perform the contract. The negative covenant as alleged is a condition of the oral agreement. So it is an express oral negative agreement. The plaintiff No. 1 has committed breach of the alleged agreement by not paying of the price of the goods even after having received the full price from Arcelor Mittal within 3 days of receipt thereof or at all. It is admitted in the MOU and also admitted in the plaint in paragraph 65 that monies although received have not been paid. 32. The plaintiffs having breached the so-called agreements cannot seek specific performance. In any event, the plaintiff is only entitled to a percentage of the transaction value and the very nature of the contract would show that the compensation by way of damage is the only remedy available to the plaintiff and not a specific performance to the contract. 32. The plaintiffs having breached the so-called agreements cannot seek specific performance. In any event, the plaintiff is only entitled to a percentage of the transaction value and the very nature of the contract would show that the compensation by way of damage is the only remedy available to the plaintiff and not a specific performance to the contract. It is submitted that the plaintiff has made an imaginary claim of damages in the suit which is yet to be ascertained. The said claim is made obviously to affect the pending proceeding between the parties. 33. The plaintiff has tried to cover up its breach by saying that the plaintiff No. 1 is going to adjust and set off un-liquidated damages allegedly suffered against the unpaid amount of price. There cannot be adjustment or set off because damages as alleged are un-liquidated and have not yet become a debt. 34. The learned Senior Counsel referred to a recent decision in Gangotri Enterprises Limited v. Union of India & Ors. reported at (2016) 11 SCC 720 and submits that damages are the compensation which a court of law gives to a party for the injury which he has sustained. No pecuniary liability arises for an alleged breach till the Court has determined that the party complaining of the breach is entitled to damages. The Court, in the first place, must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant. It is thus clear that the plaintiff has not only committed breach of the agreement but also trying to cover up their breach by taking recourse to false and illegal case. The plaintiff is, therefore, not entitled to enforcement of negative agreement by reason of proviso to section 42 of the Specific Relief Act. This oral negative agreement is not support by the purchase orders and no prima facie case of negative agreement is made out. 35. There is a gross delay of nine months in filing the suit as it is mentioned in the plaint that the alleged exclusive transactions were continued only upto March, 2016. The suit was filed in January, 2017. 36. Mr. 35. There is a gross delay of nine months in filing the suit as it is mentioned in the plaint that the alleged exclusive transactions were continued only upto March, 2016. The suit was filed in January, 2017. 36. Mr. Ramji Srinivasan, the learned Senior Counsel appearing on behalf of the respondent No. 42 submits that the plaintiff has been failed to make out a prima facie case for granting any relief in the suit vis-a-vis the defendant. The claim made is frivolous and is required to be nipped in the bud. The judgment of the Hon'ble Supreme Court in T. Arivandandam v. T.V. Satyapal & Anr. reported at (1977) 4 SCC 467 is sought for the aforesaid proposition. It is submitted neither the Shareholders' Agreement nor the Agreement alleged between the parties would show that there is any negative stipulation either express or implied between the parties giving any exclusive right to the plaintiff No. 1 to procure the materials from the plaintiff No. 1 only or the present defendant prevented from effecting supply to the Arcelor Mittal Group of Companies directly. 37. The learned Senior Counsel has referred to section 14(1)(c) and 41(e) of the Specific Relief Act and submits that the said provisions clearly stipulate that injunction cannot be granted to prevent the breach of contract, the performance of which would not be specifically enforced. The agreement between the parties is determinable in nature. A Division Bench decision of Delhi High Court in Rajasthan Breweries Ltd. v. The Stroh Brewery Company reported at 2000(55) DRJ 68 (DB) was cited for the proposition that when a contract is determinable by the action of the parties, no injunction can be granted. The following observation of the Division Bench has been relied upon:- "Question that whether termination 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. The following observation of the Division Bench has been relied upon:- "Question that whether termination 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. v. M/s. Maruti Udyog Ltd., (1997) 65 DLT 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." Even in the absence of specific clause authorising and enabling either party to terminate the agreement in the event of happening of the events specified therein, from the very nature of the agreement, which is private commercial transaction, the same could be terminated even without assigning any reason by serving a reasonable notice. At the most, in case ultimately it is found that termination was bad in law or contrary to the terms of the agreement or of any understanding between the parties or for any other reason, the remedy of the appellants would be to seek compensation for wrongful termination but not a claim for specific performance of the agreements and for that view of the matter learned Single Judge was justified in coming to the conclusion that the appellant had sought for an injunction seeking to specifically enforce the agreement. Such an injunction is statutorily prohibited with respect of a contract, which is determinable in nature. The application being under the provisions of Section 9(ii)(e) of the Arbitration and Conciliation Act, relief was not granted in view of Section 14(i)(c) read with section 41 of the Specific Relief Act. Such an injunction is statutorily prohibited with respect of a contract, which is determinable in nature. The application being under the provisions of Section 9(ii)(e) of the Arbitration and Conciliation Act, relief was not granted in view of Section 14(i)(c) read with section 41 of the Specific Relief Act. It was rightly held that other clauses of Section 9 of the Act shall not apply to the contract, which is otherwise determinable in respect of which the prayer is made specifically to enforce the same." 37. Mr. Pratap Chatterjee, the learned Senior Counsel appearing on behalf of the respondent No. 39 submits that the plaintiff has alleged three sets of agreements, namely, pre-incorporation agreement between the Lindsay and the defendant Nos. 1 to 38, non-competition agreement i.e. alleged oral agreement between the plaintiffs and the four suppliers which are limited companies and the Shareholder's Agreement and amendment thereof. It is submitted that there is no document in support of the alleged pre-incorporation agreement. However, a pre-incorporation agreement cannot be valid unless ratified by a company or juristic entity subsequent to incorporation. Therefore, such alleged pre-incorporation agreement does not exist in the eye of law. Non-competition agreement i.e. alleged oral agreement between the plaintiffs and the four suppliers which are all limited companies by which it was allegedly agreed that "at all material times" the plaintiff will exclusively sell materials to Arcelor Mittal Group of Companies and the defendant Nos. 38 to 42 would exclusively sell such material to the plaintiffs cannot be looked into nor considered by any Court since the same is contrary to Sections 91 and 92 of the Evidence Act. 38. The Shareholders Agreement and the amendment thereof clearly provide that it is a non-exclusive agreement and Arcelor Mittal has the sole and exclusive right to delete any of the items from the scope of the agreement. Therefore, it cannot be contended that items mentioned in the agreement have to be obtained by Arcelor Mittal from Lindsay only. This contention is contrary to the specific written agreement. In this regard, the learned Senior Counsel has referred to Clause 2.15.2 and clause 2.10 of the Shareholders Agreement. Arcelor Mittal would buy materials through Lindsay only if the terms are acceptable to Arcelor Mittal. This contention is contrary to the specific written agreement. In this regard, the learned Senior Counsel has referred to Clause 2.15.2 and clause 2.10 of the Shareholders Agreement. Arcelor Mittal would buy materials through Lindsay only if the terms are acceptable to Arcelor Mittal. For the above and many other reasons it is apparent that there was no and could not be any exclusive agreement for sale and supply of materials from Lindsay. 39. There is already a finding by this Hon'ble Court in three separate applications being A.P. No. 1045 of 2016, A.P. No. 1058 of 2016 and A.P. No. 1070 of 2016 that Lindsay has committed breach of contract and this Hon'ble Court has been pleased to direct Lindsay to furnish security. The said orders were passed upon hearing and Lindsay is not entitled to argue and/or is estopped from arguing that it has not committed any breach of its obligations. Therefore, Lindsay is not entitled to ask for specific performance. Specific performance can only be granted of what has been asked for in the plaint and nothing more. The plaint seeks specific performance of an agreement which does not contain any negative covenant. Negative covenant is contained in the oral contract is contrary to and/or at variance with the written contract and cannot modify the written terms. The learned Senior Counsel in this regard has relied upon Babu Bindeshri Parshad v. Mahant Jairam Gir reported at 14 Indian Appeals (1886-87) 173 and Md. Ziaul Haque v. Calcutta Vyaper Pratisthan reported at AIR 1966 Cal 605 (Paragraph 17 and 25). 40. It is submitted that there is, in fact, not a single agreement with defendant Nos. 39 to 42. Negative covenant clauses were inserted later in Purchase orders issued to defendant Nos. 39 to 42, but the period is not mentioned. 41. It is argued that negative covenant pleaded to exist in oral contract and to be implied from conduct and in the agreements between plaintiff and defendant Nos. 39 to 42. Negative covenant not to be found in any written agreement. Negative covenants are mentioned to exist "at all materials times". But the terms of a written contract cannot be altered or modified by an oral agreement and it would be hit by Section 92(4) of the Evidence Act. 39 to 42. Negative covenant not to be found in any written agreement. Negative covenants are mentioned to exist "at all materials times". But the terms of a written contract cannot be altered or modified by an oral agreement and it would be hit by Section 92(4) of the Evidence Act. Doctrine of permanence has no application in mercantile or commercial contracts, or if it applies, is subject to a wide class of exceptions, especially when mutual trust and confidence is involved. In this regard, the learned Senior Counsel has referred to Rohit Dhawan v. G.K. Malhotra & Anr. reported at ILR (2001) II Delhi 690 (Page 703 placetum C, F, G and Paragraph 14): AIR 2002 Del 151 . 42. It is submitted that there is heavy burden on the party pleading oral contract. The Plaint is vague regarding the formation of the oral contract and its terms. A suit for specific performance requires a greater degree of certainty than a suit for damages. (Sitac Pvt. Ltd. v. The Statesman Ltd. reported at (1988) 2 Cal LT 84 (Paragraph 17). Upheld in appeal: 92 CWN 858= 1995(1) CHN 502 . Implied terms are to be imported in a contract only to give it business efficacy and the term should be so very obvious that it should satisfy the officious bystander test, as laid down in Lord Mckinnon's judgment in Shirlaw v. Southern Foundries; (1926) Ltd. [1939] KB 206 and Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board, 1973 (1) WLR 601. An agreement for sale of movables is a contract of personal nature and cannot be specifically enforced: (Indian Oil Corporation Ltd. v. Amritsar Gas Service & Ors.; 1991 (1) SCC 533 ). 43. It is submitted that the contracts are commercial in nature and commercial contracts are generally terminable in nature and specific performance would not be granted. (M/s. G.D. Green Flora Resorts Pvt. Ltd. v. M/s. Kuhn-Rikon Asia Pvt. Ltd.; AIR 1999 Del 229 ) 44. The plaintiff has suppressed that it has received payments yet has not paid its vendors. The bills regarding which payments have been received by the plaintiff, yet payment has not been made to defendant No. 39. A vague statement to this effect has been made in paragraph 65 of the plaint and the plaintiff seeks to set off the same against the damages claimed by it. The bills regarding which payments have been received by the plaintiff, yet payment has not been made to defendant No. 39. A vague statement to this effect has been made in paragraph 65 of the plaint and the plaintiff seeks to set off the same against the damages claimed by it. The petition ought to be dismissed and no interim order ought to be passed thereon due to suppression of material facts. The plaintiffs are prima facie defaulters. (Mica Export Promotion Council & Ors. v. G.C.L. Joneja & Ors.; 1966 SCC Online Cal 66: (1968) 38 Comp. Cas 371) 45. Even assuming there is no suppression, the plaintiff is guilty of a breach of contract by not paying the defendant No. 39 within the stipulated time, and is, therefore, guilty of breach of contract and, therefore, specific performance at his instance will not be granted. 46. In paragraph 65 of the Plaint, the plaintiff seeks to set off the money payable by it to the defendant Nos. 39 to 42 against the damages claimed by it. In law, a claim for damages does not amount to an amount due till a decree has been passed. The plaintiff has to first pay and then prove his damages. 47. There is an arbitration clause in each of the Purchase orders issued to the defendant No. 39 and, therefore, the disputes qua defendant No. 39 be referred to arbitration, inasmuch as Section 8 application has been filed. Courts have a mandatory duty to refer parties to arbitration, and it has no jurisdiction to continue. 48. In view of section 58 of the Sale of Goods Act, 1930, no order can be passed. 49. Mr. Rishad Medora, the learned Counsel representing the respondent No. 40 submits that there has never been any exclusivity clause in any of the purchase orders placed on TRL by Lindsay, including and in particular, the last purchase order dated March 12, 2015 placed by Lindsay on TRL. None of the emails/correspondence exchanged between the parties and relied upon by the plaintiffs during the course of hearing demonstrate that there was ever an exclusive arrangement between Lindsay and TRL and the same was reiterated by, inter alia, TRL's letter dated October 31, 2016 to Lindsay. 50. Unlike the case of IFGL and Vesuvius (the defendant Nos. None of the emails/correspondence exchanged between the parties and relied upon by the plaintiffs during the course of hearing demonstrate that there was ever an exclusive arrangement between Lindsay and TRL and the same was reiterated by, inter alia, TRL's letter dated October 31, 2016 to Lindsay. 50. Unlike the case of IFGL and Vesuvius (the defendant Nos. 39,41 and 42), no purchase order placed on TRL by Lindsay was amended/modified subsequently so as to include an exclusivity clause. 51. There has never been any oral agreement between Lindsay and TRL. The allegations/averments in the plaint and the petition filed by Lindsay are vague and bald in this regard and are absolutely devoid of material particulars. Only purchase orders have been placed on TRL by Lindsay from time to time. All such purchase orders are in writing. There is no other agreement between TRL and any of the plaintiffs. 52. Clause 4 of the aforesaid purchase order dated March 12, 2015, being the last agreement between Lindsay and TRL clearly states that the said contract represents the entire agreement between the parties on the subject matter thereof and all prior negotiations, declarations or agreements, whether written or oral and related to the said subject matter shall be null and void provided they have not been expressly reiterated therein. Thus, the plaintiffs now, in any event, cannot claim that an oral agreement is in force between Lindsay and TRL. 53. Unlike the case of IFGL and Vesuvius, payments to be made by Lindsay to TRL in terms of the purchase orders placed on TRL by Lindsay were not dependent on or contingent on Lindsay receiving payments from the Arcelor Mittal Companies. Clause 2.2 of the aforesaid purchase order dated March 12, 2015 states, inter alia, 10% of the contractual price was to be paid in advance to TRL and the balance 90% of the contractual price was to be paid on pro rata basis within 60 days from the date of clean Bill of Lading. Appendix 3 of the aforesaid purchase order reiterates the same. 54. The aforesaid purchase order dated March 12, 2015 has been executed by TRL in entirety but a sum of Rs. 2,96,09,916/- only is still due and payable to TRL from Lindsay since March, 2016. Appendix 3 of the aforesaid purchase order reiterates the same. 54. The aforesaid purchase order dated March 12, 2015 has been executed by TRL in entirety but a sum of Rs. 2,96,09,916/- only is still due and payable to TRL from Lindsay since March, 2016. Thus, admittedly, Lindsay is in breach of its contractual obligations towards TRL and consequently, there is no, and there cannot be any, equity in favour of Lindsay and no interim order should be passed in its favour. TRL is taking steps to initiate arbitration proceedings against Lindsay with regard to, inter alia, its aforesaid claim of Rs. 2,96,09,916/- only. 55. Unlike the case of IFGL, there has never been any Memorandum of Understanding between any of the plaintiffs and TRL. 56. TRL is independently supplying materials to Arcelor Mittal in terms of an agreement dated August 9, 2016 and has already supplied goods worth Rs. 30,03,33,272/- to Arcelor Mittal. Such agreement was evidently entered into prior to institution of the present suit and subsequent to Lindsay's continuing defaults in making payments to TRL. It is thus humbly submitted that no injunction should be passed restraining TRL from supplying goods in terms of the aforesaid agreement dated August 9, 2016. 57. In reply, Mr. Joy Saha, the learned Senior Counsel appearing on behalf of the plaintiff submits that each of the purchase orders clearly cover all the future transactions and in this regard attention of this Court is drawn to Clause 16.3 of the Purchase Orders dated 2nd August, 2016 raised on Vesuvius India Ltd. which reads:- "16.3. SELLER will not have the direct contract with any Arcelor Mittal plants or Arcelor Mittal Company if SELLER receives any enquiry directly from Arcelor Mittal plants or Arcelor Mittal Company, SELLER must forward the same to the BUYER immediately." 58. It is submitted that the recitals in the Shareholders Agreement as well as the MOU entered into with respondent Nos. 41 and 42 would clearly show that the plaintiffs were recognized as the sole selling agent and all materials for the last 20 years until August, 2016 were supplied only through the respondent No. 1. The respondent No. 3, is a shareholder of the plaintiff No. 1 company and cannot act in derogation of its obligation or detrimental to the interest of the company. 59. The respondent No. 3, is a shareholder of the plaintiff No. 1 company and cannot act in derogation of its obligation or detrimental to the interest of the company. 59. Although it is alleged that the respondent No. 3 has terminated the Shareholders Agreement but no such notice of termination is on record. The respondent No. 3, in fact, has no power of termination. The termination clause records that the respondent No. 3 has a right to claim dissolution and in the event of breach, the plaintiffs would be required to put on notice and if the plaintiff fails to remedy the breach the defendant would be entitled to take steps in accordance with the termination clause. 60. The various e-mails exchanged between the plaintiffs and the four suppliers unmistakably show that for all practicable purposes, the supplier considered the plaintiff No. 1 to be the only entity through which all supplies are to be effected to the various companies belonging to the Mittal Group of Companies and that had been the practice for almost a decade. It is submitted that this conduct is sufficient to lead to an irresistible conclusion that the plaintiff No. 1 was the sole selling agent for all suppliers effected to the Mittal Group of Companies outside India and the decision cited by the respondent in this regard are to be applied on the facts that have emerged during the proceeding. 61. It is submitted that since the contract is subsisting and perpetual in nature as the Shareholders Agreement does not mention any duration inasmuch as the agreements between the plaintiff and the four vendors clearly stipulates that all transaction supplies including future supplies are to be effected through the plaintiff No. 1 only. Since there is a negative stipulation in the purchase orders issued by the plaintiff to the four suppliers, the question of restraint of trade does not arise. The learned Senior Counsel has referred to Percept D'Mark (India) (P) Ltd. v. Zaheer Khan & Anr. reported at (2006) 4 SCC 227 and Gujarat Bottling Co. Ltd. & Ors. v. Coca Cola Co. & Ors. reported at (1995) 5 SCC 545 cited by the respondent No. 3 to show that the restraint of trade will not apply during the subsistence of the agreement. reported at (2006) 4 SCC 227 and Gujarat Bottling Co. Ltd. & Ors. v. Coca Cola Co. & Ors. reported at (1995) 5 SCC 545 cited by the respondent No. 3 to show that the restraint of trade will not apply during the subsistence of the agreement. It is submitted that since the agreement is still valid, the question of restraint of trade would not arise at all. Moreover, alleged termination of agreement is invalid in law for the time being the same is required to be ignored. 62. Mr. Saha has referred to the newly inserted Article 2.15.6 being amendment No. 1 to the Shareholders Agreement dated 21st January, 2010 and submits that the said clause permits Arcelor Mittal Companies to take alternative direct offer if an offer or contract presented by Lindsay is not technically satisfactory or commercially competitive. Since no such situation has arisen, the Arcelor Mittal Companies could not have directly negotiated with the suppliers and procure a breach of contract between the petitioners and the said suppliers. 63. On the basis of the aforesaid argument, it needs to be examined if the petitioner is entitled to an equitable relief and an order of injunction as prayed for can be granted by this Court exercising its equitable jurisdiction. There are two distinct sets of agreements pleaded in the petition. 64. The cause of action against the defendant No. 1 to 38 appears to be based on pre-incorporation agreement, collaboration agreement and a shareholders' agreement. The recitals of the Shareholders' Agreement dated 21st January, 2010 shows that Lindsay since its formation in 1996 has gained, experience and expertise in material supply, supply chain management and cost reduction services to companies in the Arcelor-Mittal Group of Companies. Lindsay had sourced and was sourcing Indian products for Arcelor-Mittal Companies. One of the Group Companies of Arcelor-Mittal agreed to become a shareholder of Lindsay with a view to assist Lindsay in developing the business in a manner beneficial to the respondent No. 3 and the other Arcelor-Mittal Companies. The agreement, inter alia, defines the purpose, conduct of the business of Lindsay and relationship between the Lindsay and the respondent No. 3. The purpose shows that Lindsay, amongst others, would be required to supply maintenance, repair and operational materials specified in Schedule 7 to the Arcelor-Mittal Companies registered or conducting business outside India and to provide various services. The agreement, inter alia, defines the purpose, conduct of the business of Lindsay and relationship between the Lindsay and the respondent No. 3. The purpose shows that Lindsay, amongst others, would be required to supply maintenance, repair and operational materials specified in Schedule 7 to the Arcelor-Mittal Companies registered or conducting business outside India and to provide various services. The object is to create in Lindsay the first class supplier of products and services. The objective of Lindsay would be to promote sustainable valuable growth while taking up a competitive position in operations and supply. Arcelor-Mittal Companies had assured to use all reasonable endeavours to forward request for quality (RFQ) to Lindsay or an Affiliate, allowing it to participate in bids to supply, on a non-exclusive basis, certain products and/or services to Arcelor-Mittal Companies registered, or conducting business, outside India and unless it prejudices the policy of Arcelor-Mittal Company of providing a single point of contract to all key suppliers, contractors and service providers of the Arcelor-Mittal Group, the Arcelor-Mittal Companies would not issue duplicate RFQs to Lindsay and to suppliers or service providers with whom Lindsay has an existing business relationship on the effective date. 65. Once the proposed terms of supply are acceptable to the respondent No. 3 or an Arcelor-Mittal Company, in its sole discretion and as soon as practicable after the delivery of an RFQ to Lindsay or an Arcelor-Mittal Company, the Arcelor-Mittal Company or Lindsay or an Affiliate shall agree the price and other terms on which the products are to be supplied or services are to be provided. These terms are to be embodied in a supply agreement or a service agreement. Lindsay or its affiliate shall supply products or services only to those Arcelor-Mittal Companies that are registered or conducting business in countries outside India, but may supply products or services to other companies irrespective of their place of registration or place of business. The respondent No. 3 in its sole discretion may add to, amend, or delete items from the list of products or services set out in Schedule 7 of the Shareholders Agreement, especially if it may prejudice the management by an Arcelor Mittal Company of its relationship with national, regional or global suppliers or global suppliers or service providers to the Arcelor-Mittal Group. 66. The Shareholders' Agreement would be considered to be the whole agreement superseding all other agreements. 67. 66. The Shareholders' Agreement would be considered to be the whole agreement superseding all other agreements. 67. Either party may commence the dissolution of Lindsay by notice in writing with immediate effect if the other party suffers insolvency or if the party's breach of a material obligation under the Shareholders' Agreement is not capable of remedy. The Shareholders' Agreement shall be treated to be the whole agreement superseding all earlier agreements. Some of the clauses of the agreement were amended on 29th February, 2016 which permits Arcelor-Mittal Company to take alternative direct offer if an offer or contract presented by Lindsay to an Arcelor-Mittal Company is not technically satisfactory or commercially competitive. A new Article 2.22 was introduced which reads:- "Lindsay may source Products or Services including CAPEX not listed in Schedule 7 only at the request of an Arcelor-Mittal Company, specifically for Commodities: (i) any resulting contract must be between the supplier and the Arcelor-Mittal Company; (ii) Lindsay's only remuneration for the transaction must come from the supplier, in the form of a "seller's commission" or similar; and (iii) the Arcelor-Mittal Company will mandate Lindsay to facilitate the sourcing of Commodities." 68. The plaintiff No. 1 on the basis of RFQs placed from time to time by the Arcelor-Mittal Companies situated outside were procuring materials from different suppliers and supplying the said materials directly to the said companies. In order to affect supply, separate supply agreements entered into with each of the suppliers. 69. The plaintiff says that each of the defendant Nos. 39 to 42 is an independent entity who the plaintiffs identified to be the suppliers for the export of goods and services of the AM Companies commercial relationships with each of the said defendants was established by the plaintiff Company in the first instance and after being assured that the said defendant companies would be qualified to service the needs and requirements of the AM Companies. In Paragraphs 40, 41 and 42, the plaintiffs have pleaded negative covenant which read:- "40. At all material times, it was expressly agreed and understood by and between the plaintiff company and the defendant Nos. 39 to 42 and each of them, inter alia that: (a) The AM companies were bound to only purchase Indian goods from the plaintiff company and for any such purpose the plaintiff company was their sole purchasing representative throughout India. At all material times, it was expressly agreed and understood by and between the plaintiff company and the defendant Nos. 39 to 42 and each of them, inter alia that: (a) The AM companies were bound to only purchase Indian goods from the plaintiff company and for any such purpose the plaintiff company was their sole purchasing representative throughout India. (b) None of the AM Companies would or could enter into any final contract directly to purchase any product or buy services or machinery or materials directly from any of the said 4 suppliers other than through the plaintiff company; (c) None of the said 4 defendants would have any right whatsoever or be entitled under any circumstances to sell their products directly to any of the Mittal Companies and therefore they would not directly enter into any final contract or transaction for any purposes whatsoever with any of the AM Companies; (d) In the event of any of the defendant Nos. 39 to 42 receiving any enquiry for supply of goods from any of the AM Companies then they would forward the same to the plaintiff company for necessary action; (e) Each of the defendant Nos. 39 to 42 (and in fact, all other vendors similarly situated) would act as the agent of the plaintiff company in the matter of making any export to any of the AM companies and there could not be any direct contractual privity whatsoever by and between any of them on the one hand with any of the AM Companies on the other. (f) The defendant Nos. 39 to 42 would also comply with such terms and conditions as may be generally or routinely prescribed by the plaintiff company for each of its purchases from them for export to the AM buyers. 41. The plaintiffs state that the foregoing terms and conditions were expressly agreed upon by and between the plaintiffs and each of the defendant Nos. 39 to 42 and/or the same can also be inferred and implied from their continuous course of conduct as well as the entire course of the dealings and transactions that in the ordinary and usual course of business took place with them for decades. The aforesaid terms and conditions were orally agreed upon with each of the defendant Nos. 39 to 42 at the said registered office of the plaintiff company within the said injunction. The aforesaid terms and conditions were orally agreed upon with each of the defendant Nos. 39 to 42 at the said registered office of the plaintiff company within the said injunction. Apart from the aforesaid express stipulations which were the essential and fundamental terms agreed upon between the plaintiff company and the said 4 defendants, certain general terms and conditions were also mutually agreed with them; which were routinely followed by the plaintiff company whilst purchasing for export from them. Such general terms and conditions are hereto annexed and marked "I" and the plaintiffs will crave leave to treat the same as part of this plaint. 42. Further, or in the alternative the plaintiffs state that the several agreements made by and between the plaintiff company and the defendant Nos. 39 to 42 and/or each of them contained by necessary implication a negative covenant stipulating that the said defendants would not enter into competition with the plaintiff company by directly or otherwise selling any of their materials or services to any of the AM Companies under any circumstances whatsoever." 70. However, the purchase orders disclosed in this proceeding shows that the plaintiff is required to make payment to each of the suppliers within three working days on receipt of payment from overseas buyer/end-user. The purchase orders for all the suppliers appeared to be in the same form which, however, was altered lately to include a clause that the seller will not have direct contract with any Arcelor-Mittal Plants or Arcelor-Mittal Company and if a seller receives any enquiry directly from Arcelor-Mittal Plants or Arcelor-Mittal Company, seller must forward the same to the buyer immediately. The purchase orders containing such clause was introduced subsequent to the amendment agreement and apparently in view of exchange of correspondence between some of the suppliers with the plaintiff No. 1 and Arcelor-Mittal Companies showing that orders were placed upon such suppliers bypassing the plaintiff No. 1. The suppliers also expressed their concern for delayed payment and have approached the Arcelor-Mittal Companies for payment. In one of the e-mails dated 13th November, 2016 from Vesuvius India Ltd. to Aditya Mittal, it appears that one of the sellers have raised concern about the growing mistrust between two group of shareholders of Lindsay. The suppliers also expressed their concern for delayed payment and have approached the Arcelor-Mittal Companies for payment. In one of the e-mails dated 13th November, 2016 from Vesuvius India Ltd. to Aditya Mittal, it appears that one of the sellers have raised concern about the growing mistrust between two group of shareholders of Lindsay. The email, however, acknowledges the procurement relationship between Vesuvius and Lindsay duly agreed upon by Arcelor Mittal Group with the subsequent trading undertaken with full involvement, guidance and support of Aditya Mittal. It affirms that Lindsay was, in fact, appointed as a purchasing agent of Arcelor Mittal Company as is evidenced by the sale of products by the Lindsay to Arcelor-Mittal Company. In the said communication, Vesuvius expressed concern for delayed payment and requested Arcelor Mittal Company to place direct orders on Vesuvius and withhold further payment to Lindsay and make the payments directly to Vesuvius amounting to US$ 4.8 million and 170,000 for the materials supplied by Vesuvius on the basis of the invoices raised by Lindsay which remained outstanding with Arcelor Mittal Company. The earlier correspondence between the supplier and Arcelor Mittal Companies would show that in such matters concerning supply of materials to Arcelor-Mittal Companies, the sellers were instructed to approach Lindsay for supplies to be effected. The clear stand of Arcelor-Mittal Companies were to contact Lindsay for all such materials as it pertains to Arcelor-Mittal Companies from India and are only to be routed through Lindsay as Lindsay was entrusted and has been regularly supplying large quantities of goods to various Arcelor-Mittal Companies. Even Vesuvius was little surprised on receiving a communication directly from Arcelor-Mittal Companies when they were requested to place the contract directly to the companies bypassing Lindsay. 71. The seed of present conflict possibly was sown when the agreement for amendment was entered into on 29th February, 2016 which downplayed Lindsay's role in the entire transaction and makes its position merely as a commission agent from its exalted position as 75 percent shareholder in the plaintiff No. 1. The suppliers started complaining of not receiving the amount from Lindsay although Lindsay had received payments. The suppliers started complaining of not receiving the amount from Lindsay although Lindsay had received payments. Lindsay would try to give an explanation that the Arcelor Mittal Companies are procuring a breach of contract and are seeking to source the material directly from various suppliers disregarding Lindsay and thereby has acted in breach of an oral agreement containing an implied negative covenant which would be discernible from the long continuous conduct between the parties over a decade. Aftermath of the amendment to the Shareholders' Agreement resulted acrimonious exchange of e-mails between Arcelor-Mittal Companies, plaintiff No. 1 and the suppliers. In few cases, the plaintiff No. 1 wants to resolve the disputes by entering into a MOU but in respect of Vesuvius and TRL, no such settlement was arrived at. The plaintiff No. 1 introduced prohibition clause in the new set of purchase orders following dispute arose between the two sets of shareholders of Lindsay. The suppliers appear to have supplied the materials to Arcelor-Mittal Companies through Lindsay on the basis of the purchase orders containing such prohibition non-competitive clause. 72. Arcelor-Mittal Companies do not allege that the plaintiff No. 1 has failed to ensure supply of materials to the respondents on the basis of the order placed from time to time. The various invoices disclosed in this proceeding would show that the plaintiff No. 1 has placed orders on various suppliers of materials on the basis of the specific orders placed by the Arcelor-Mittal Companies. The dispute arose essentially due to non-payment to some of the suppliers by the plaintiff No. 1 on the plea that the said suppliers are in direct negotiation with the Arcelor Mittal Companies in derogation of the agreed terms. 73. Whenever the Court is required to consider an agreement containing a negative covenant express or implied, the Court would be required to construe the agreement as a whole and give predominance to the substance rather than the form. There cannot be any doubt that section 41(e) of the Specific Relief Act lays down the general rule that there can be no injunction to prevent the breach of a contract. There cannot be any doubt that section 41(e) of the Specific Relief Act lays down the general rule that there can be no injunction to prevent the breach of a contract. Section 42 contains an exception 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. The said Section does not say that every affirmative contract includes by necessary implication a negative agreement to refrain from doing certain things. It is, therefore, a question of interpretation in each case whether a particular contract can be said to have a negative covenant, express or implied contained in it. The Court may decline to pass an order of injunction even if there is a negative covenant, express or implied, if a remedy by way of damages in a given case is more efficacious. 74. Whenever the Court does not have a proper jurisdiction to enforce specific performance, it operates to bind men's conscience as far as they can be bound, to a true and literal performance of their agreement, and it will not suffer them to depart from the contracts at their pleasure, leaving the party with whom they have contract to have the mere chance of any damages which may be awarded at the end of the trial is the principle well settled since Lumley v. Wagner reported at (1852) 1 De GM and G 604. 75. Later this decision has drawn a broad distinction between those personal service contracts, which contained any express negative covenant and those which did not contain any such express negative covenant and limited the application of the doctrine of Lumley v. Wagner only to the former cases. The criticism of the said doctrine has already been noticed earlier. 76. The Conclusion from authorities has been thus summarised by FRY. "The position of that branch of the law on which Lumley v. Wagner is the leading authority can hardly be said to be very satisfactory. The criticism of the said doctrine has already been noticed earlier. 76. The Conclusion from authorities has been thus summarised by FRY. "The position of that branch of the law on which Lumley v. Wagner is the leading authority can hardly be said to be very satisfactory. I may, it is conceived, be concluded that the principle of this case will not be extended: that negative stipulations will not be implied except in the cases where the Courts have already done so: and that even the presence of an express negative stipulation will not be found a sufficient ground for jurisdiction unless the contract is of a kind of which specific performance can be granted. In order words, it is probable that the Court will hereafter, except so far as it may be bound by existing authorities, consider whether the contract in respect of which the injunction is sought is or is not of a kind fit for specific performance; that, if it be, the Court will tend to restrain acts inconsistent with it, whether there be negative words or not: that if it be not of a kind fit for specific performance, no injunction will be granted, even though negative words may be present. (FRY, Specific Performance, 6th Ed., section 862) 77. The law has been thus stated in HALSBURY: "Where there is no express negative covenant, but only an affirmative covenant, the Court, although it cannot enforce affirmatively the performance of the covenant, will sometimes, in special cases, interpose to prevent that being done which would be a departure from, and a violation of, the covenant. In such cases that Court imports a negative covenant not to act inconsistently with the agreement, and restrains by injunction the breach of such implied negative covenant." (Halsbury Laws of England, 3rd Ed., Vol.21, Paragraph 813, P.387) "The doctrine in Lumley v. Wagner, has, however, been criticized, and is not to be extended. In such cases that Court imports a negative covenant not to act inconsistently with the agreement, and restrains by injunction the breach of such implied negative covenant." (Halsbury Laws of England, 3rd Ed., Vol.21, Paragraph 813, P.387) "The doctrine in Lumley v. Wagner, has, however, been criticized, and is not to be extended. It seems that the right to an injunction of this kind will not now be held to depend upon the use of a negative rather than a positive form of expression, and that if the substance of the contract is such that it ought not to be performed specifically, an injunction will not be granted merely because the covenant is in a negative rather than a positive form, nor, on the other hand, will injunction necessarily be refused merely because the agreement contains no negative stipulation."(Halsbury Laws of England, 3rd Ed., Vol.21, Paragraph 812, Pp.386, 387) 78. The reading of the Shareholders' Agreement and the amendment agreement does not bring out a case express or implied negative covenant. The plaintiff No. 1 is only entitled to receive a commission on the transaction. There cannot be any doubt that for over a decade a particular course of action was adopted notwithstanding the written terms in the agreement but that by itself would not be sufficient to grant an order of injunction more so when there is a lack of trust and faith between two groups of shareholders. Contracts involving trust and confidence like contracts of agency are determinable by nature. There is no presumption of permanence of duration in any type of contract, and the question whether the contract is determinable depends upon the proper construction of the contract in every case and a commercial contract is determinable. Furthermore, there appears to be a dispute between the plaintiff No. 1 and the various suppliers with regard to the payment. The plaintiff No. 1 did not release payment to the various suppliers although it had received payments from the overseas buyers on a specious plea that the said buyers are directly negotiating with the Arcelor-Mittal Companies. In fact, under the amended clause, Arcelor-Mittal Companies have a right to procure directly from the suppliers if an offer or contract presented by Lindsay is not technically satisfactory or commercially competitive. The claim for damages is not an ascertained sum. It needs to be adjudicated. In fact, under the amended clause, Arcelor-Mittal Companies have a right to procure directly from the suppliers if an offer or contract presented by Lindsay is not technically satisfactory or commercially competitive. The claim for damages is not an ascertained sum. It needs to be adjudicated. The grievance of the unpaid vendors in not willing to supply through the plaintiff No. 1 cannot be ignored. The plaintiff claims specific performance without discharging its obligation, that is, the failure to make payment to the various suppliers in spite of receipt of payments from the overseas buyer. The Shareholder's Agreement does not appear to have been terminated. Admittedly, the petitioner No. 1 is not declared insolvent nor any notice has been served upon the plaintiff No. 1 for remedying breach which is essential before the contract can be terminated. It is a fact that Arcelor Mittal Companies have not released fund to the petitioner No. 3 covering all the supplies made. It is on record that some of the suppliers are aware of the existing dispute between two groups of shareholders and have agreed to MOU by which the payments are to be received. The defendant No. 3 apprehends that in the event the entire amount is released to the plaintiff No. 1, the unpaid vendors would not be paid and it might create difficulties with regard to future supplies. The email of Vesuvius dated 13th November, 2016 could be a matter of concern for AM which cannot be brushed aside. 79. However, there is no lack of readiness and willingness on the part of the plaintiffs to comply with the terms of MOU which appears to have been terminated by a cryptic communication may be at the behest of the respondent No. 3 possibly on an assurance that that said respondent Nos. 41 and 42 would be better off if they deal with the AM Companies directly. It is also not in dispute that substantial payments are receivable from AM Companies. Although a submission is made that other AM Companies apart from the respondent No. 3 could have independent grievances but it is clear from the recitals of the Shareholders Agreement that the respondent No. 3 is the representative of all such AM Companies and is looking after their interest. The respondent Nos. Although a submission is made that other AM Companies apart from the respondent No. 3 could have independent grievances but it is clear from the recitals of the Shareholders Agreement that the respondent No. 3 is the representative of all such AM Companies and is looking after their interest. The respondent Nos. 39, 41 and 42 have supplied and are in the process of supplying materials to AM Companies on the basis of existing purchase orders which expressly prohibits them to deal with AM Companies directly. An injunction can be granted to prevent a defendant from fulfilling contracts made in breach of covenant. However, there is no such prohibition clause in respect of supplies made by the respondent No. 40. 80. MOU with the respondent Nos. 41 and 42 are in that direction only. The MOU confirms the claim of Lindsay that the said plaintiff has been procuring from the defendant Nos. 41 and 42 their manufactured refractory products for supply to and use by AM Companies situated outside India since 1999 on exclusive basis. The respondent No. 3 unless terminates the contract in accordance with Clause 16 of the Shareholders Agreement cannot act in a manner detrimental to the interest of Lindsay in which it holds 25% shares. 81. The Shareholders Agreement cast upon an obligation upon the AM Companies not to affect the existing business of the plaintiff No. 1. The Shareholders Agreement is of 21st January, 2010. There cannot be any doubt that for the purpose of effecting supplies to AM Companies, the plaintiffs have identified several suppliers which include the defendant Nos. 39 to 42. Amendment to the Shareholders Agreement although have diluted such rights to some extent but the procurement and/or sourcing of the materials is dependent upon a satisfaction being recorded by an AM Company that the offer or contract presented by Lindsay to an AM Company is not technically satisfactory or commercially competitive. The plaintiff No. 1 over a decade has been supplying materials from these suppliers identified by them to meet the requirements of various AM Companies. The overseas buyers have never complained as to the quality or quantity or pricing of the said materials. In American Cynamid Co. The plaintiff No. 1 over a decade has been supplying materials from these suppliers identified by them to meet the requirements of various AM Companies. The overseas buyers have never complained as to the quality or quantity or pricing of the said materials. In American Cynamid Co. v. Ethicon Ltd. reported at (1975) A.C. 396 it was observed:- "Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo." (American Cynamid at 408F) 82. Under such circumstances, the respondent Nos. 39, 41 and 42 shall affect supplies to Arcelor-Mittal Companies in respect of all the purchase orders and/or invoices disclosed in this petition and the Arcelor-Mittal Companies shall release payment directly to such suppliers after deducting the agreed commission and such commission shall be directly remitted to the designated bank account of the plaintiff No. 1. All future supplies are to be governed by the result of this application. The defendants shall maintain an account of all future transactions separately and furnish monthly statements to the plaintiffs. All the past as well as present dues payable to the each of the vendors shall be paid in accordance with the direction contained in this order 83. The aforesaid order shall endure to the benefit of all and passed keeping in view that the plaintiffs have substantially performed their obligation and the Shareholders Agreement has not been terminated. In fact, the respondent No. 3 is unable to produce any such letter. Moreover, there is no commencement of dissolution of the plaintiff No. 1 inasmuch as before termination an opportunity is to be given to remedy the breach. The breach could be non-payment to the vendors for which an opportunity should be given to remedy such breach. 84. The Court sometimes grant interim injunction restraining breach of the negative engagements even in respect of a commercial contract on the theory that this could induce the supplier to perform but would not compel him to do so (Evans Marshall & Co. v. Bertola SA; 1973 (1) WLR 34) or where the suppliers would have inflicted on the distributor a ruinous blow which would have broken up their business. (Decro-Wall (supra) 85. v. Bertola SA; 1973 (1) WLR 34) or where the suppliers would have inflicted on the distributor a ruinous blow which would have broken up their business. (Decro-Wall (supra) 85. The "balance of the risk of doing an injustice" as May LJ observed in Cayne v. Global Natural Resources Plc.; (1984) 1 All ER 225 and an uncompensatable disadvantage to which the plaintiffs might suffer has persuaded me to pass this interim order. This interim order shall "hold the ring" pending final determination of the merits of the disputes. 86. Affidavit-in-opposition shall be filed within three weeks from date reply thereto, if any, within two weeks thereafter, the matter shall appear as an "Adjourned Motion" six weeks hence. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.