Fast Trax Food Pvt. Ltd. vs Elena Norman & Ors.
2010 Latest Caselaw 1306 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   IA NO.2767/2010 IN CS(OS) NO.395/2010

                                      Date of Decision : 09.03.2010

FAST TRAX FOOD PVT. LTD.                           ......       Plaintiff
                      Through:               Mr.S.K.Taneja, Sr.Adv.
                                             with Mr.Yogesh Malhtora,
                                             Adv.
                                  Versus

ELENA NORMAN & ORS.                            ......         Defendants
                                  Through:   Mr. Jayant Bhushan, Sr.
                                             Adv. with Mr. R.K.Nanda,
                                             Adv. for the defendant
                                             nos. 1 and 3.
                                             Ms.Anuradha      Salhotra,
                                             Adv. for defendant no.5.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.

Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in the Digest ? Yes

V.K. SHALI, J. (oral)

1. This order shall dispose of an application filed by the

plaintiff under Order 39 Rules 1 and 2 CPC seeking an ex

parte ad interim stay against the defendant Nos.1 to 3 from

permitting sale or service of any food or beverages by the

defendant no.5 or any other third party in the entire

stadium including VIP lounge and media centre during the

FIH Hockey World Cup, 2010 being held at New Delhi from

28.2.2010 to 13.3.2010.

2. Briefly stated the facts as alleged by the plaintiff in the suit

are that the plaintiff had entered into an agreement dated

09.2.2010 with the defendant no.1 by virtue of which the

plaintiff was granted exclusive rights to serve food and

beverages in the entire stadium including general public,

VIPs, VVIP's fixed staff from the various locations in the

Major Dhyan Chand Hockey Stadium (National Stadium),

New Delhi where the World Cup Hockey Tournament was to

be held from 28.2.2010 to 13.3.2010. It is alleged that

defendant no.3 had signed the agreement for and on behalf

of defendant nos.1 and 2 and the relief clause of the

agreement laid down as under:-

 "Serving Food and Beverages exclusive to the entire stadium including General Public, VIPs, Media, VVIPs, Fixed Staff from various locations, with a variety of menu, at variable rates as per terms of signed ag. Broadcast crew exception as already have supplies in place.

 Café Coffee day shall strictly sell only Tea and Coffee from their duly assigned area. Any further items if sold by Café Coffee Day will be considered as a Breach of Agreement.

 Allotment of 3 Food counters in the stadium, 4 outside the stadium and an additional storage outside the stadium.

 Assurance to restrict sale of any kind of Outside Food and beverage irrespective of any condition throughout the tournament.

 Exclusive right to operate food stalls in and around the stadium."

3. It is alleged that after having entered into an agreement

and making the plaintiff to pay a hefty amount of Rs.25

lacs in favour of defendant no.3, the defendants have

unilaterally without any rhyme or reason permitted coca

cola company to set up the stalls for the purpose of serving

and selling coca cola at different venues in the stadium

itself. It is contended that this was in total breach of the

agreement which was entered into by the defendants with

the plaintiff and accordingly has prayed for a prohibitory ad

interim injunction order restraining the defendants from

giving permission to anybody else or Coca Cola to put up a

stall and to sell the beverages in the stadium. It has also

been averred that though the tournament started on

28.2.2010 but as the tournament will last for another 4 to

5 days then at least for this period, the defendants be

restrained from permitting Coca Cola to set up the stalls

and sell the beverages/cold drinks manufactured by them.

4. Notices were issued to the defendants out of which

defendant Nos.1 ,3 and 5 have put in appearance through

counsel. On account of paucity of time, no reply has been

filed by them but a set of documents were handed over to

the Court as well as to the learned counsel for the plaintiff

by the said defendants.

5. I have heard the learned Senior Counsel for the plaintiff

and for the defendant Nos.1 to 3 and have perused the

record.

6. The main contention of the learned Senior Counsel for the

plaintiff is that the defendants having entered into an

agreement dated 09.2.2010 with the plaintiff giving therein

the exclusive right to sell the food and beverages to the

plaintiff in the entire stadium which consists of general

public, VVIP's and VIP's lounge, media etc., they had

foreclosed their right to appoint another manufacturer or

party from selling the coca cola in the stadium. It was

contended that the defendants had taken a hefty amount of

Rs.25 lacs from the plaintiff for signing this agreement and

since the time this fact came to the notice of the plaintiff

that the defendants were permitting Coca Cola to set up a

stall for sale, he firstly approached the defendants and

requested them to take corrective steps and as they failed

to do so, the plaintiff was constrained to file the present

petition in Court only on 05.3.2010.

7. It is contended by the learned Senior Counsel that since

this tournament is to last further for another 4-5 days only,

at least for this period, a prohibitory injunction be issued in

favour of the plaintiff and against the defendants

preventing any other organization or person from selling

the beverages in stadium to the detriment and in violation

of the agreement signed between the plaintiff and the

defendants.

8. The learned Senior counsel for the defendant Nos. 1 to 3

raised question regarding maintainability of the suit and

consequently urged that if the suit itself is not

maintainable, ex parte ad interim injunction cannot be

issued. It was also contended by the learned Senior

counsel for the defendant Nos. 1 to 3 that the plaintiff has

not presented the correct facts and has concealed certain

documents which have a vital bearing on the case. While

elaborating the submissions further, it was contended by

Mr.Jayant Bhushan, learned Senior counsel for the

defendant that in the first instance the plaintiff has made

wrong averments to the effect that the agreement was

signed on 09.2.2010. The learned counsel has drawn the

attention of the Court to the correspondence/e-mail

between the plaintiff and the organizing Committee of

Hockey Federation through which they had entered into the

agreement with the plaintiff on 13.2.2010. It was

contended that the agreement has been entered into

between the plaintiff and the said Organizing Committee

through its treasurer, Sh.N.Batra and this has been

misrepresented to this Court as if the agreement is signed

between the plaintiff and the defendants which is not a

correct fact. It was contended that this fact was in the

knowledge of the plaintiff yet the plaintiff has not chosen to

make the Organizing Committee or Mr.N.Batra as a party

and therefore, the suit itself is liable to be rejected

9. The second submission of the learned Senior counsel

Mr.Jayant Bhushan, learned Senior counsel is that an ex

parte ad interim injunction prohibiting the sale of Coca

Cola manufactured by Coca Cola Company cannot be

granted in favour of the plaintiff and against the defendants

for the reason that the agreement between the Federation

i.e. defendant nos.1 to 3 and Coca Cola was actually

entered much prior to the agreement entered between the

plaintiff and the defendants and secondly, the agreement

on the basis of which the plaintiff is claiming a prohibitory

injunction is a kind of agreement of which a specific

performance cannot be granted by the Court because in

terms of Section 14(a) of the Specific Relief Act even if the

breach of the said agreement dated 09.2.2010 takes place,

the plaintiff can be sufficiently compensated in terms of

money. It is urged that it is a settled legal position that the

Court will not issue injunction to prevent a breach of a

contract of which specific performance cannot be granted

by the Court. The attention of the Court has been drawn to

Section 41 (e) of the Specific Relief Act.

10. I have carefully considered the submissions made by the

respective sides. I feel that the submissions which have

been made by the learned counsel for the plaintiff have no

merit and no ex parte ad interim injunction order can be

passed in favour of the plaintiff and against the defendants

for the following reasons :-

(a) the plaintiff has made a misstatement of fact that the

agreement is signed between the plaintiff and the

defendants on 09.2.2010, while as the agreement is signed

between the Organizing Committee through its Treasurer

Sh.N.Batra and the plaintiff. Admittedly, the Organizing

Committee has not been made as a party. Even Sh.N.Batra

who has signed the agreement has not been made a party.

The agreement is prima facie showing that it has been

signed on 13.02.2010. Therefore, the entire basis of the

case of the plaintiff is actually not based on correct facts

and further the plaintiff has chosen not to make Organizing

Committee as a party to the suit and therefore, the suit is

liable to be rejected for non-joinder of the necessary party.

In any case, there is no privity of contract between the

plaintiff and the present defendants on the basis of the

agreement relied upon by the plaintiff which would warrant

grant of interim relief.

(b) The second reason is that the plaintiff has been guilty of

concealment of fact. It has chosen not to place on record

all the documents. The defendant has placed before this

Court a letter /e-mail exchanged between the plaintiff and

the defendant which clearly shows that the officials of the

plaintiff had almost reconciled to the fact that the

manufacturer of Coca Cola were roped in for the purpose of

setting up of stalls for the purpose of selling beverages in

VVIP's lounge, VIP's lounge or the media. This fact was

known to the plaintiff as early as on 10.2.2010 yet the

plaintiff has chosen to approach the Court at a belated

stage and thus try to put a spoke into the smooth

functioning of the games held at the International Level.

(C) Thirdly, the basic fundamental of Specific Relief Act, if we

read Section 10 to 14 and 36 as well as Section 41 (e), and

(f), clearly shows that if the breach of a contract which can

be adequately compensated in terms of money cannot be

specifically enforced, then injunction cannot be granted. In

the instant case, even if the entire facts are taken to be in

favour of the plaintiff this is at best is a breach of contract

which can be adequately compensated in terms of money.

Section 41 (e) of the Specific Relief Act also specifically

enjoins that no injunction can be granted in case the suit

for specific performance is not maintainable.

11. The plaintiff does not have a prima facie case. For the

reasons mentioned above, I am of the view that the plaintiff

is not entitled to any ex parte ad interim injunction order

restraining the defendants or their

representative/assigns/agents from carrying out their

business in the stadium.

12. Accordingly, the application of the plaintiff for grant of ad

interim injunction stay is dismissed.

V.K. SHALI, J.

MARCH 09, 2010 RN