Shri Sannil Sethi vs Punjabi Bagh Club (Regd.) & Ors
2009 Latest Caselaw 3642 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI


+                OMP No.522/2009

%
                                   Date of decision: 09.09.2009


SHRI SANNIL SETHI                                   ....Petitioner
                       Through: Mr. Sunil Malhotra, Advocate for the
                                Petitioner.


                               Versus

PUNJABI BAGH CLUB (REGD.) & ORS. ... Respondents
                       Through: None



CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?               No

2.    To be referred to the reporter or not?        No

3.    Whether the judgment should be reported       No
      in the Digest?



RAJIV SAHAI ENDLAW, J.

1. The petition under Section 9 of the Arbitration Act, 1996 is

preferred for interim measures. The petitioner had a contract with

the respondent No.1 club (Respondents No.2&3 are its office

bearers) for providing catering services in the Restaurant, Banquets,

Bar, Card Room, Tambola Lawn & Family Longue in the club

premises. The said agreement was for a term of two years expiring

on 28th February, 2010. Clause 19 of the agreement provides that the

agreement can be terminated at any time with two months notice if

the services are not found satisfactory or for any other reason

whatsoever and the decision of the respondent club in this regard

shall be final. The agreement also provides for arbitration. The

respondent club vide letter dated 30th April, 2009 notified the

petitioner that there were deficiencies in the services provided by

the petitioner and that the said letter may be treated as one month's

notice for termination of the agreement. The respondent club on 24th

July, 2009 also invited fresh tenders for awarding the said contract

to another person w.e.f. 1st September, 2009. The present petition

was filed first on 3rd September, 2009. On enquiry, the counsel for

the petitioner states that the other contractor who may have been

appointed by the respondent club pursuant to the tender has not

taken over as yet and the petitioner continues to provide the catering

services. Interim measures are sought in this petition of restraining

the respondents from awarding the contract of catering services to

any other person and to allow the petitioner to continue with the

catering services under the agreement aforesaid. Directions in the

form of specific performance of the contract are also sought. One of

the reliefs claimed is for directing the respondents to refund the

security amount of Rs.5 lacs deposited by the petitioners with the

respondent for providing the catering services in the Coffee Shop of

the club and with respect whereto the respondents are stated to

have already appointed another contractor.

2. On enquiry, the counsel for the petitioner states that the

agreement with respect to the Coffee Shop was different from the

agreement on the basis whereof this petition has been filed.

However on further enquiry, it is informed that there is no other

written agreement with respect to the Coffee Shop. This query was

made because the petitioner has in the petition inter-alia taken a

ground that the respondents on the one hand are not refunding the

security deposit aforesaid of the petitioner and on the other hand are

seeking to remove the petitioner. It was felt by this court that if the

petitioner has already demanded the security deposit, the petitioner

could not have at the same time sought directions in the nature of

specific performance. However, in view of the stand taken during the

hearing, this aspect though felt to be relevant is not considered.

3. The counsel for the petitioner has drawn attention to the

correspondence between the parties of a date prior to the

termination whereunder the petitioner is shown to have been

demanding performance by the respondent of the obligations which

the respondent club was to perform under the agreement. It is

contended that the breach in fact was on the part of the respondent

club in not providing the infrastructure as agreed and not on the part

of the petitioner.

4. It is also contended that the termination letter of 30th April,

2009 is of one month only while according to the contract the

termination notice was required to be of two months.

5. Attention is also drawn to the appreciation meted out to the

petitioner in the Comments Card filed along with this petition. It is

urged that a large number of the members of the club have been

appreciating the services of the petitioner.

6. In my view, the matter is not res integra. The Supreme Court

in Indian Oil Corpn. Ltd. Vs. Amritsar Gas Service (1991) 1 SCC

533 has held that where the agreement by its very nature is

terminable, injunction or direction in the nature of specific

performance cannot be issued. It was further held that even where

the requisite notice of termination as agreed has not been given, the

claim on that account can also be for damages only and not for

performance of the agreement during the said period. I find the said

dicta to be squarely applicable to the facts of this case. Not only is

the agreement by its very nature incapable of specific performance

under the provisions of the Specific Relief Act and even otherwise in

as much as this court is not in a position to supervise or enforce the

performance of various obligations going into the minute details by

the parties but also for the reason of the parties having expressly

agreed to the same being terminable. Though more than two months

have expired since the notice of termination but even if there be a

grievance of the petitioner on that account, the claim of the

petitioner would be for damages only and not by way of injunction.

7. I also find that the petition is highly belated. The termination

was as far back as on 30th April, 2009; tender inviting fresh bids was

issued on 24th July, 2009 and the new caterer was to take over w.e.f.

1st September, 2009. The petitioner has been sleeping for the last so

many months and now when as per the tender, the new caterer is

supposed to have taken over the services which the petitioner was to

provide under the agreement, the petition has been filed.

8. The counsel for the petitioner has also argued that the

petitioner has employed 40 persons for running services under the

said contract and they would be rendered jobless. However, the

petitioner knew that the agreement is terminable by the respondent

club at any time; more over, the term of the agreement is, in any

case, is to expire in the end of February, 2010 and this ground does

not persuade me to grant any interim measures as claimed.

9. In the aforesaid circumstances, neither is the petitioner found

to be having any prima facie case nor would the petitioner suffer any

irreparable loss nor is the balance of convenience found in favour of

the petitioner or in granting interim measures claimed.

The petition is dismissed.

IA No.11603/2009 (u/S 151 of the CPC for exemption).

Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE)

September 9th, 2009 PP