TMI Blog2001 (6) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... our attention had been drawn to the letter dated 5-10-1998 by the respondent-Company to the appellant herein on the basis whereof it was submitted that as the contract had not been terminated the respondent could not hand over the work to any other person. The learned Counsel would contend that payments have not been received nor any measurement of the work done by the appellant company had been taken and as such interest of justice demanded that an order of injunction should be issued. Strong reliance in this connection has been placed on Frank Simoes Advertising (P) Ltd. v. Hada Leasing and Industries Ltd. and Anr. AIR 1988 Delhi. 363 and Robert v. Roshini Enterprises and Anr. 4. The fact of the matter is as follows: The respondent-Company called for tenders for design and construction of concrete jetty inside Kharo creek near Sanghipurani, Gujarat for export of cement and the appellant-company's tender was accepted. The appellant-company alleged that during the course of execution of the contract/it had to stop the work firstly because of dispute between the revenue and forest departments over the land and also because of delay on the part of the respondent-Company in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egative 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: Provided that the plaintiff has not failed to perform the contract so far as it is binding on him. 8. The respondent alleged breaches of conditions of contract on the part of the appellant. It was alleged that the appellant had demobilized entire men and machinery and almost had abandoned the work. It was denied that commencement of work pursuant to the said understanding dated 5-10-1998 was contingent upon the releasing of the first instalment. According to the respondent, as the appellant failed to mobilise men and machinery by 15-10-1998, the question of payment did not arise. It was further alleged that the said understanding dated 5-10-1998 could not be materialized owing to failure on the part of the appellant herein to perform its obligations. 9. Having regard to the aforementioned disputed questions, in our opinion, the learned Trial Judge must be held to have arrived at a correct decision that an injunction as pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volition and thus can be enforced. It is now well settled that whether an agreement is affirmative or negative is one of substance and not of mere form. A negative stipulation cannot be implied from an affirmative stipulation; For inferring that the contract contains a negative stipulation, it must be found out from the contract itself. In Lal Bhai Dalpatbhai Co. v. Chittaranjan, AIR 1966 Guj 189 a Division Bench of the Gujarat High Court held: Now if Section 42 has not been enacted by reason of Section 41 Clause (e) it would not have been possible to grant an injunction to restrain the breach of the negative stipulation. The breach of a negative stipulation would have been a breach of the contract and an injunction though limited to preventing the breach of the negative stipulation would have been injunction to prevent the breach of the contract and the contract being one of which performance would not be specifically enforced. Section 41(e) would have precluded the Court from granting an injunction to prevent the breach of the negative stipulation. Section 42 was therefore enacted and it provided that in such a case even though the contract cannot be specifically enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides, there are certain equitable principles also which govern the Courts in granting or withholding of the relief of injunction. One of the main considerations is the fairness or good conduct of the party invoking the aid of the Court. The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. The wrong conduct of the plaintiff in the particular matter or transaction with respect to which he seeks injunction relief precludes him from obtaining such relief. Injunction will not be granted in aid of possession secured by stratagem or trick. . . . I am of the opinion, that the application of the principles enunciated in the decision extracted hereunder; could be made applicable in all cases where, the appellate Court is called upon to review an order made in the exercise of discretion by the lower Court. The decision in question is in U.P. Co-operative Federation Ltd. v. Sunder Bros. AIR 1967 SC 249 and the relevant passage which occurs at page 253, runs thus: It is well established that where the discretion vested in the Court under Section 34 of the Indian Arbitration Act has been exercised by the lower Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
