Delhi High Court
Independent News Service Pvt. ... vs Sucherita Kukreti on 25 January, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 25th January, 2019
+ CS(OS) 43/2019 & IA No. 1191/2019 (u/O XXXIX R-1&2 CPC)
INDEPENDENT NEWS SERVICE PVT. LIMITED .....Plaintiff
Through: Mr. Abhinav Vashisht, Sr. Adv. with
Mr. Atul Sharma, Mr. Abhishek
Sharma, Mr. Abhinav Sharma and Ms.
Shreya Jain, Advs.
Versus
SUCHERITA KUKRETI ..... Defendant
Through: Mr. Sandeep Sethi, Sr. Adv. with Ms.
Malvika Trivedi, Mr. Mrinal Ojha,
Mr. Sukrit Seth, Harshul Singh Mr.
Mrinal Bharti, and Mr., Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.1192/2019 (for exemption)
1.
Allowed, subject to just exceptions.
2. The application stands disposed of.
CS(OS) 43/2019 & IA No. 1191/2019 (u/O XXXIX R-1&2 CPC)
3. The plaintiff, a Television News Channel, has instituted this suit for
permanent injunction restraining the defendant, a news broadcaster with the
plaintiff since the year 2004, from taking up similar work with any other
television channel during the term till 30th November, 2019 of her
Agreement with the plaintiff and / or from allowing her name, image or
voice to be associated with any other news channel; and for recovery of
Rs.2,00,10,000/- as damages.
4. The suit is accompanied with an application for interim relief.
5. The counsel for the defendant appears on seeing the matter in the
cause list and the senior counsel for the defendant has also been heard in
opposition to the ad interim injunction sought by the plaintiff.
6. The question for consideration is the same as has been repeatedly
coming up before Courts for over a century, i.e. of enforcement of negative
covenant not to serve a competitor, in a contract of personal service,
performance of which is dependent on personal qualifications of the parties.
7. The plaintiff claims to have spent large sums of money and resources
in grooming the defendant and in building the image of the defendant for last
fourteen years, as one of the prominent faces of the plaintiff‟s news channel.
The plaintiff, for the said purpose has since 1st December, 2004 been
entering into successive agreements with the defendant, of three years each
and each of which agreement contains a negative covenant whereunder the
defendant has agreed to during the term of agreement not associate with any
other competing channel. The defendant has also agreed with the plaintiff
that while the plaintiff can terminate the employment of the defendant, the
defendant cannot, save for medical reasons.
8. The senior counsel for the plaintiff has argued that the defendant,
since about mid-December, 2018, has been feigning excuses for leaving the
employment of the plaintiff and the plaintiff has now learnt that the
defendant intends to be the face and broadcaster of a competing news
channel to be launched w.e.f. 25th January, 2019. Hence this suit.
9. The senior counsel for the plaintiff has drawn attention to paras 53,54,
56 and 58 of Wipro Ltd. Vs. Beckman Coulter International S.A. (2006)
131 DLT 681 and para 17 of Niranjan Shankar Golikari Vs. Century
Spinning and Manufacturing Co. Ltd. AIR 1967 SC 1098 to contend that
owing to the negative covenant in the contract between the parties, the
defendant is liable to be restrained till 30th November, 2019 i.e. till the last
date of the term of the agreement with the plaintiff, from joining / serving
any other news channel. It is contended, that the plaintiff, though may not be
willing to take a chance of allowing the defendant to present the news on the
channel of the plaintiff, owing to the controversy which is arisen between the
parties, but is willing to continue to pay the emoluments agreed to be paid
under the Agreement, to the defendant, subject to the defendant agreeing not
to and/or being restrained from so associating with a competing news
channel. Offer is also made, that the defendant can be engaged in back stage
activities other than of being the news presenter/face of the channel, either in
the plaintiff or even in the competing news channel. It is contended that it
has been the consistent view, that such a negative covenant can be enforced
during the term of the agreement.
10. Per contra, the senior counsel for the defendant has contended, that the
defendant resigned from the employment of the plaintiff on 13th December,
2018 and this suit has been filed after a delay of about 1½ months. It is also
informed that the defendant, on 14th January, 2019 has joined the other news
channel and the Court now cannot now order status quo ante. Reliance in
this regard is placed on Independent News Service Pvt. Ltd. Vs. Anuraag
Muskaan (2013) 199 DLT 300. Else, it is argued that Section 27 of the
Indian Contract Act, 1872 is a compete bar to an agreement in restraint of
exercising lawful profession, as the defendant has been exercising, earlier
with the plaintiff and now with the defendant. It is contended that once
Section 27 declares so, the question of reasonableness of the agreement does
not arise. Reliance is placed on para 45 of Gujarat Bottling Co. Ltd. Vs.
Coca Cola Company (1995) 5 SCC 545, paras 52, 53, 59 & 62 of
Superintendance Company of India (P) Ltd. Vs. Krishan Murgai (1981) 2
SCC 246, paras 42 of Percept D'Mark (India) Pvt. Ltd. Vs. Zaheer Khan
(2006) 4 SCC 227 and para 150 of Pepsi Foods Ltd. Vs. Bharat Coca-cola
Holdings Pvt. Ltd. MANU/DE/0740/1999.
11. The senior counsel for the plaintiff in rejoinder has contended that
even in Percept D'Mark (India) Pvt. Ltd., interim injunction for the
remaining term of the contract was granted. Attention is also invited to paras
41 and 45 of the said judgment.
12. The senior counsel for the defendant has lastly drawn attention to
Rajasthan Breweries Limited Vs. Stroh Brewery Company AIR 2000 Delhi
450 to contend that all commercial contracts, irrespective of the term thereof,
are terminable by their very nature.
13. The senior counsel for the plaintiff points out to para 14 of Rajasthan
Breweries Ltd. supra where notice has been taken of Section 42 of the Indian
Contract Act.
14. I have considered the controversy and am of the view that no case for
grant of interim injunction is made out. My reasons are as follows:
(A) Granting any interim injunction would amount to restraining the
defendant from doing what she has been doing for the last 14 years
and what she is best known to do and has skill to do. Ad-interim
injunction if granted for the period till 30th November, 2019, would
amount to killing the goodwill acquired by the defendant in the last 14
years and which loss cannot be monetarily compensated to the
defendant in the event of it being ultimately found in the suit that the
plaintiff was not entitled to such injunction. The Courts (see S.
Tamilselvan Vs. The Government of Tamil Nadu 2016 SCC OnLine
Mad 5960 (DB)) have leaned in favour of resurrecting rather than
killing what a person is best at. On the contrary, the plaintiff, in the
event of ultimately succeeding, can always be compensated monetarily
for the loss, if any suffered.
(B) Thus, neither the element of irreparable injury nor the element
of balance of convenience, on the anvil of which grant of interim relief
is to be tested, is in favour of the plaintiff.
(C) Though Section 42 of the Specific Relief Act, 1963 empowers
the Court to grant an injunction to perform a negative agreement and
the defendant in the present case did agree with the plaintiff to, till the
expiry of the term of her agreement with the plaintiff, not be
associated with any other news channel, but this by no means entitles
the plaintiff as a matter of right to an injunction. Grant of injunction
remains discretionary and which discretion is to be exercised on the
well established anvils of prima facie case, irreparable injury, balance
of convenience and public interest.
(D) Prima facie it appears that Section 27 of the Contract Act
declaring as void, agreements by which anyone is restrained from
exercising a lawful profession, is in absolute terms.
(E) The vocation of the defendant as a Newscaster / News Presenter
would qualify as „lawful profession‟ within the meaning of Section 27
of the Contract Act. Though in yester years, the word „profession‟
was associated with professions of law, medicine, accountancies,
teaching, architecture etc. only but in the new world with new
vocations, the vocation of the defendant as a Newscaster / News
Presenter qualifies as a profession.
(F) Though I had, in Lal Pathlabs Pvt. Ltd. Vs. Arvinder Singh
2014 SCC OnLine Del 2033, finding a Pathologist carrying on his
profession as a Director and shareholder of a company, the goodwill
and business whereof had been transferred to another with an
agreement not to carry on the same business, granted interim
injunction but the Division Bench of this Court while reversing the
said order in Arvinder Singh Vs. Lal Pathlabs Pvt. Ltd. 2015 SCC
OnLine Del 8337 held that a Pathologist could not be restrained in any
manner from carrying on his profession and any such restraint would
be contrary to Section 27 of the Contract Act.
(G) Granting any such ad-interim injunction would lead the
defendant to idleness and exception in which regard has been
consistently made by the Courts including in all the cited judgments.
The defendant cannot be asked to engage herself in other, behind the
scene activities as is suggested, even if besides being in front of the
camera for the last 14 years has also been incidentally involved in
behind the scene activities. The averments in the plaint itself are
guided by the acumen, training and skill of the defendant in front of
rather than behind the camera.
(H) Benching a professional for as long as 10 to 11 months can be
devastating, capable of inflicting permanent damage affecting mental
and physical health and future prospects of a professional. This is
more so in the case of Newscasters / News Presenter to whom the
adage "out of sight out of mind" would also apply. The patrons of the
defendant in the said 10 months are likely to turn over to other
Newscasters / News Presenter to whom they would get habituated and
not only is it doubtful that the defendant, after 10-11 months, will
retain the same advantage owing whereto the plaintiff wants to restrain
the defendant but it is also highly unlikely that the defendant will be
able to win back the patrons so lost by her.
(I) The entire claim of the plaintiff is on the premise of the
agreement of the plaintiff with the defendant being in force. It is not
as if the defendant, while continuing with the employment with the
plaintiff is intending to render her services to another as well. The
defendant has terminated her employment / agreement with the
plaintiff and it is yet to be determined, whether the defendant could
have done so or could not have done so. The senior counsel for the
plaintiff has fairly also agreed that the defendant cannot be compelled
to continue to render services to the plaintiff. The case at best is thus
of breach of agreement and which can ordinarily be compensated with
money.
(J) According to the plaintiff also, the agreement of the defendant
with the plaintiff was for successive terms of three years each and
which period of three years is ending on 30th November, 2019. It
was/is always open to the defendant to not renew the said agreement
and to walk across to any other TV Channel including that competing
with the plaintiff. The plaintiff admittedly at that stage could not have
prevented the defendant from doing so. The plaintiff, even then would
not benefit from the resources claimed to have been expended in
building the image, reputation and goodwill of the defendant. What
the defendant is doing now is, instead of walking away after 30th
November, 2019, walking away immediately, when there are still 11
months to the expiry of her agreement. Such loss can definitely be
measured in monetary terms.
(K) The defendant, out of the term of three years of the last
agreement with the plaintiff, has already performed under the
agreement for two years or more. The agreement, to the extent of
providing the same consequence for the breach, whether be
immediately after the date of the agreement or after performance of
2/3rd thereof, is prima facie unreasonable.
(L) The ambit of Article 21 of the Constitution of India ensuring
Protection of Life and Personal Liberty to all persons has over the
years been expanding. Personal Liberty would include liberty to
practice a vocation or profession and being not deprived thereof,
notwithstanding any agreement to the contrary and which agreement
Section 27 of the Contract Act declares as void. Grant of any ad-
interim injunction would also be in violation of Article 21 of the
Constitution of India. The right to life with human dignity of a person
is a fundamental right of every citizen for pursuit of happiness and
excellence. Liberty aims at freedom not only from arbitrary restraint
but also to secure such conditions which are essential for the full
development of human personality. The essence of all civil liberties is
to keep alive the freedom of the individual subject to the limitations of
social control envisaged in diverse Articles in the Chapter of
Fundamental Rights in Part III in harmony with social good envisaged
in the Directive Principles in Part IV of the Constitution (see Kartar
Singh Vs. State of Punjab (1994) 3 SCC 569).
(M) Similarly, Article 51A of the Constitution of India constitutes a
duty of every citizen to strive towards excellence in all spheres of
individual and collective activity so that the nation constantly rises to
higher levels of endeavour and achievements. The defendant, as a
citizen of India, cannot be restrained from striving towards individual
excellence in the profession/vocation of her choice. The individual
interest of each individual serves the collective interest and
correspondingly the collective interest enhances individual excellence.
(N) In A.I.I.M.S. Students Union Vs. A.I.I.M.S. (2002) 1 SCC 428
it was held that fundamental duties, though not enforceable by a writ
of the Court, yet provide a valuable guide and aid to interpretation of
constitutional and legal issues and in case of doubt or choice, people's
wish as manifested through Article 51A, can serve as a guide not only
for resolving the issue but also for constructing or moulding the relief
to be given by the Courts.
(O) Prima facie it appears that the skill and excellence acquired by
the defendant and owing whereto the plaintiff does not want to let go
of the defendant is the personal acquisition of the defendant and the
plaintiff cannot have proprietary rights or interest in such acquisition
of excellence by the defendant, even if with the contribution from the
plaintiff. Excellence is a skill which is personal to the defendant.
(P) Supreme Court in K.S. Puttuswamy Vs. Union of India (2017)
10 SCC 1 has held the individual to be the focal point of the
Constitution because it is in the individual rights that the collective
well being of the community is determined. Personal choices
governing a way of life were held to be intrinsic to privacy and
realisation of full value of life and liberty. Any restraint as sought
would interfere with the autonomy, right to make a choice and
freedom of the defendant and impinge on the dignity of the defendant.
(Q) This Court in Ambiance India Pvt. Ltd. Vs. Naveen Jain 122
(2005) DLT 421 also noted that everybody has a right to strive for
progress in a career and held the contractual restrictions sought to be
imposed thereon to be void and unconscionable.
(R) The defendant has been presenting news for the last 14 years
and dissemination of news is of public importance and the patrons of
the defendant cannot be deprived of the skill and expertise acquired by
the defendant over the years in disseminating news.
15. The counsels having been fully heard, no purpose would be served in
keeping the application for interim relief pending.
16. IA No. 1191/2019 is dismissed.
17. Written statement to the suit be filed within the prescribed time.
18. Replication within 30 days thereafter.
19. The parties to file affidavits of admission/denial of each other‟s
documents before the next date of hearing.
20. List on 11th July, 2019 for framing of issues if any.
RAJIV SAHAI ENDLAW, J.
JANUARY 25, 2019
„pp/bs‟
