1. This case raises an interesting question in regard to jurisdiction of this Tribunal to grant an order of injunction in the peculiar facts and circumstances of this case.
2. The petitioner is a broadcaster. The respondent is an aggregator of channels. The parties hereto had entered into an agreement in respect of the distribution of the television channels, namely, MTV, Colors and (hereinafter called for the sake of brevity “the channels”) with the respondents herein. Prior thereto also the respondents had been distributing the channels of some of the channels of the petitioner.
3. We are really not concerned therewith.
4. The parties for the aforementioned purpose entered into a Memorandum of Understanding on or about 11.02.2009. The tenure of the agreement was three years. The parties had mutually agreed upon, inter alia, for transmission of existing channels in the entire territory of India.
5. In terms of the said agreement the petitioner was to receive a sum of Rs.125 crores within the aforementioned period in the following terms:-
“(a) Year 1- INR 36,00,00,00/- (Rupees Thirty Six Crores Only)
(b) Year 2- INR 42,00,00.000/- (Rupees Forty Two Crores Only)
(c) Year 3- INR 47,00,00,000/- (Rupees Forty Seven Crores only)”
6. Para 7 of the said agreement provides for overflow and revenue share for digital form, which reads as under:
“VII. Overflow and Revenue Share for Digital Platform
MSMD acknowledges that the amounts mentioned in VI.(2) above are minimum payments to Viocom 18 and MSMD shall use reasonable commercial endeavour to achieve higher revenue for the V18 Channels from the Digital Platforms that carry the V18 Channels. The percentage of the additional revenue MSMD shall share with Viacom 18 in excess of the MG for the V18 Channels carried on Digital Platforms (hereinafter referred to as the "Overflow") will be as follows:
I. Overflow
In case the collected revenue (other than for the purposes of MG and Fixed Fee) for the V18 Channels from Digital Platform of MSMD exceeds INR 195,00,00,000/- (Rupees One Hundred Ninety Five Crores Only) for the Term, then MSMD shall pay Viacom 18, 70% of such excess revenue within 60 days from expiry of the Term.
II. Revenue Share
Viacom 18's share of the total revenue of MSMD from the Digital Platform shall be computed as per the following formula in each of the given scenarios:
(1) revenue would be shared amongst the channels in all the TOA bouquets based on their percentage allocation which shall be in the ratio of their a-la- carte pricing for DTH platform as specified in Annexure-A hereto. "Rate of the Channel as specified in Annexure-A divided by the summation of the ala carte rates of all the TOA Channels multiplied by 100". This shall be applicable only in cases wherein agreements with such digital platforms have been entered into or renewed post execution of this MOU.
Illustration: If a distributor operating a Digital Platform subscribes for all the TOA channels wherein Rs.83.49/- is the summation of the a la carte DTH prices of all the TOA Channels, then the total of the Base Tariff of the V18 Channels MTV, Nick, Vhl and Colors shall be Rs.19.27 and the percentage Share of the V18 Channels as per the formula would be (Rs.19.27/Rs.83.49)*100=23.08%
(2) For Digital Platforms with whom MSMD has subsisting agreements as on the date of execution of these presents, the introduction of the New Channel shall form a separate and distinct subject matter of commercial understanding to be entered into with such platforms by way of an Addendum to existing agreements and any revenue arising as a result thereof shall be allocated to Viacom 18 completely. For Existing Channels on such Digital Platforms, the revenue sharing shall continue to be in terms of the proportion that the summation of a la carte rates of such Existing Channels bears to the summation of the ala carte rates of all the TOA Channels excluding the New Channel.
(3) For Digital Platform that avail some but not all of the TOA Channels as a 'bundle'/'tiers' comprising of some of the V18 Channels and/or where such TOA channels form part of different 'tiers' on the Digital Platform, the revenue sharing shall be in terms of the proportion that the summation of the a la carte rates of the V18 Channels bears to the summation of the ala carte rates of the TOA Channels comprising the respective 'bundle'/'tiers'.
Illustration: In the event four of the TOA Channels being SET, MAX, MTV and Colors are offered to subscriber and a ‘bundle’ by a DTH Operator, by applying the formula the percentage allocation for the V18 Channels being MTV and Colors of the Revenue from the DTH Operator shall be 42.18%.
(4) In the event a Digital Platform avails the V18 Channels on a la carte, the revenue arising therefrom shall be the product of the subscriber base of that particular channel(s) and the corresponding respective a la carte rate(s) of such channel(s) charged by MSMD.”
Para 9 of the said agreement, which is relevant for the purpose of this case, reads as under:
“IX. Packaging of the V18 Channels
1. The V18 Channels shall be part of the existing Bouquet-2 of MSMD subject to regulatory mandates. Viacom 18 is assured that any addition of new channels and deletion of existing channels from the TOA bouquets of MSMD shall not adversely affect Viacom 18's share of potentia1 revenue vis-Ã -vis scenario if such change in the TOA bouquets would not have happened. In the event there is any such material adverse effect on the allocated revenue to Viacom 18 the same shall be duly addressed by the parties through a mutually consultative process of review.
2. MSMD in their negotiation with any distributors of channels operating in DTH or any other Digital Platforms for the TOA Channels shall use reasonable efforts to optimize the reach for the V18 Channels. MSMD shall subject to regulatory mandates expend reasonable efforts to ensure that(a) Existing Channels shall not be placed in a tier which shall be less beneficial than their current tiers; and (b) New Channel shall not be placed in tiers other than those where other channels in same language and genre are placed.”
The said agreement contains a ‘termination’ clause being XX thereof, which reads as under:
“XX Termination
Either Party shall be entitled to terminate this MOU or the long form Agreement on material breach of any term or terms contained in such MOU or the Long Form Agreement. However, no such termination shall be effected unless the aggrieved party submits a 90 day notice upon the other party so alleged to be in breach and offers the latter reasonable opportunity to cure such alleged breach. In the event the material breach is suitably addressed or cured to the satisfaction of both the Parties, no further cause shall sustain of such notice for termination. The consequences of breach, including penalty, if any, shall be dealt with in the Long Form Agreement.”
Inter alia, on the premise that the respondent in breach of the said MoU in terms whereof the petitioner’s channels were to be placed at prime channels, the petitioner found that the respondent had been putting its rival broadcaster, namely; Sony, at prime channels, particularly, in those which were displayed by Dish TV and Tata Sky to the DTH Operators which, inter alia, has captured about 70% of the market. By way of example, it was stated that whereas in the case of Dish TV, out of 10 different packs, the Sony channel was placed in 9 at the top of them; the petitioner was placed in the prime channels only in 4. Similarly, in the case of Tata Sky; whereas Sony channel was placed in 5 out of 7 channels, the petitioner had been placed on only 3.
7. The petitioner terminated the said contract by a notice dated 13.06.2010, para 9 whereof reads as under:-
“9) In these circumstances, without prejudice to the contents of all aforesaid paragraphs, and assuming that the MOU is not vitiated and avoided as set out therein, we hereby terminate the MOU with immediate effect and call upon you to forthwith refrain from acting in furtherance of the MOU or representing any association with Viacom 18 and/or Colors. This termination has resulted entirely due to your breaches, wrongful acts of omissions and commission and your fraudulent acts, which really constitute a repudiation of the MOU by you. Your own acts/conduct rendered it impossible for you to render your services to us properly in terms of the MOU. We also call upon you to forthwith make payment of Rs.20,34,61,982/- (Rupees Twenty crores thirty four lacs sixty one thousand nine hundred and eighty two only) due from MSMD towards Fixed Fee and Minimum Guarantee for the period until the date of this termination letter. We also call upon you to render true and faithful accounts in respect of the distribution on the digital platform and forthwith pay to us the amount due to us on ascertainment. Your actions, inactions and conduct as stated herein above have resulted in substantial damage to us to the tune of approximately Rs.127 crores for various reasons including without limitation due to unfavourable tiering for Viacom 18 Channels and loss due to disruption of business.”
8. This petition came for preliminary hearing on 19.07.2010 whence an interim order was prayed for. The matter was adjourned to 21.07.2010 with a view to give an opportunity to the respondent to file an appropriate petition, as was submitted before us, as we were given to understand that the respondent had filed application under Section 9 of the Arbitration and Conciliation Act, 1996 before the Bombay High Court, wherein, it prayed for an order of injunction but the same was declined and thus, the same shall be withdrawn and the appropriate petition will be filed before this Tribunal.
9. We also granted permission to the petitioner herein to file an additional affidavit. Pursuant to the leave so granted in favour of the petitioner a voluminous additional affidavit has been filed. The respondent also has filed a very detailed reply to the petition as also to the said additional affidavit.
10. Before however, we advert to the said contentions raised in the pleadings of the parties, we may notice two of the interim prayers made by the petitioner in this petition:-
“a) restrain the Respondent from directly or indirectly interfering with the distribution and marketing of the said Channels of the Petitioner either by Petitioner itself or in alliance and direct the Respondent to make all regulatory filing within 7 days of 13.7.2010 reflecting the terms of the MoU and deleting the Petitioner's channel from the Respondent's bouquets;
(d) restrain the Respondent from representing the petitioner after the termination of the MoU on 13.7.2010.”
The contentions of the petitioner in support of the prayer for interim relief are:
(a) Admittedly, the respondent while placing the petitioner’s channel has been offering the same @ Rs.4/- per channel in place of Rs.20/- for analog mode and Rs.10/- for transmission thereof on DTH platform.
(b) The respondent had been placing the channels of the petitioner at a far more disadvantageous position than its rival broadcaster, namely, Sony, as a result whereof the petitioner had been suffering losses not only in terms of the number of viewership but also in terms of its reputation and revenue.
(c) The action on the part of the respondent is malafide in as much as it had incorrectly been pleading its helplessness in placing the Colors channel of the petitioner in the prime time and prime position although its affiliates were bound to give effect to the said MoU as would appear from the Reference Interconnection Offer (RIO) given by the petitioner itself.
(d) In any event, even if the plea of the respondent that it was in a helpless situation as according to which it was the affiliates alone who can deal therewith, the petitioner does not intend to deal with such a distributor.
(e) The Managing Director of the respondent in an interview in March, 2010 having clearly stated that the Colors channel belonging to the petitioner was at Number 1 whereas the Sony is only amongst the top, have been taking actions to the contrary.
(f) The petitioner having entered into a new contract with a third party granting the right of distributorship of the channel in its favour, it will suffer an irreparable injury if an injunction as sought for is not granted.
(g) The respondent itself having issued a notice to the new distributor, namely, SUN TV Networks Ltd., to the effect that it should not deal with it its LCOs, cannot now be heard to say that it was not aware of the effect of the said termination of contract.
(h) The petitioner having been denied an order of injunction by the Bombay High Court cannot now be permitted to resist the prayer for injunction made by the petitioner.
(i) The respondent is guilty of commission of fraud in as much as it had been showing a low subscriber base of its LCOs to the petitioner whereas the affiliation agreement entered into by and between them and respondent shows a higher figure, and, thus, it must be held to have committed fraud on the petitioner.
(j) Having regard to the provisions contained in Section 201, 205 and 206 of the Indian Contract Act, 1872, the respondent being only entitled to damages even if no notice of 90 days have been served on it.
(k) The respondent having engineered a Press Report that this Tribunal had refused to grant an injunction in favour of the petitioner must be held to be guilty of contempt of court.
11. Mr.Ramji Srinivasan, the learned senior counsel appearing on behalf of the respondent, on the other hand, would contend:
A. This petition having been filed in anticipation of an original petition which the respondent intends to file before this Tribunal, no order of injunction should be granted in its favour.
B. No foundational fact having been pleaded for obtaining a discretionary or equitable relief by way of injunction, no order of injunction should be passed in its favour, particularly, in view of the fact that the petitioner has not approached this Tribunal with clean hands.
C. The petitioner having not served a notice of 90 days must be held to be in breach of contract and as the same amounts to a negative covenant, the action on the part of the petitioner must be held to be illegal and, thus, this Tribunal should not come to the aid of the petitioner.
D. The petitioner itself being in breach of contract, cannot be permitted to take advantage of its own wrong, particularly, when it was aware of the consequence of non-service of a prior notice of 90 days.
E. The parties having arrived at a consensus that 90 days’ notice would be served, keeping in view the fact that the respondent had entered into back to back contracts with several LCOs and with full knowledge that the dues of the petitioner are to be paid only after 60 days, which period was necessary for the respondent to realize the bills from the LCOs and pay the amount in question to the petitioner, the said period must be held to have been fixed by way of business efficacy.
F. The petitioner having not disclosed various E-mails before this Tribunal whereby it intended to have a higher revenue share only, no injunction should be granted in its favour.
G. The petitioner having not taken any steps for a period of 15 months is not entitled to an equitable relief.
H. The petitioner having not raised any grievance with regard to the binding nature of the contract and furthermore the same having worked out as a result whereof the petitioner has been benefited itself, it should not be permitted to turn around and question the conduct of the respondent.
I. The only deficiency in service, if any, on the part of the respondent having been pointed out only in relation to the Dish TV and Tata Sky and there being other operators in the field, namely, Airtel, Big TV, SUN TV and Videocon who carry the channels of the petitioner as per the agreement, it must be held that there is no merit in this petition.
J. From the records of the case, it would appear that the petitioner has become No.1 only after the respondent became its distributor; as prior thereto, the petitioner was required to pay a huge carriage fee to the operators, the petitioner should not reap the benefit of the hard work done by the respondent.
K. The additional affidavit which has been filed by the petitioner being only for the purpose of grant of interim relief, the same should not be treated to be a part of the pleadings and from the documents appended thereto the petitioner cannot be permitted to make out the new case.
L. Keeping in view of the fact that after working out of the contract the market is assured, the petitioner should not be allowed to go back from the contract.
M. The allegations made on the respondent with regard to commission of fraud by showing less subscriber base of the LCOs is of no consequence as the respondent pays a fixed fee to the petitioner.
12. The core question which arises for consideration in this petition is as to whether the petitioner was bound to serve 90 days notice and what would be consequence of failure on its part to do so?
13. The jurisdiction of a court of law to pass an order of injunction is limited.
14. We may, at the outset notice that the respondent has filed an application before the Bombay High Court purported to be under Section 9 of the Arbitration and Conciliation Act. Evidently, however, no order of injunction has been passed in its favour. The relationship between the parties is not in dispute. The fact that they had entered into a Memorandum of Understanding (MoU) is also not in dispute. Certain other events are also admitted, namely:-
(i) The petitioner has terminated the contract by issuance of a notice dated 13.07.2010.
(ii) The said notice is in violation of Clause XX of the Agreement.
15. So far as the performance of the contract is concerned, as noticed hereinbefore, both parties are trading charges against each other. Whereas according to the petitioner, the respondent is guilty of serious breaches of contract by not putting its channel in No.1 position vis-Ã -vis its rival broadcaster, namely, SonyTV, it is also guilty of malafide act as also commission of fraud on the part of the respondent.
16. The respondent, on the other hand, contends that the petitioner having taken advantage of the performance on the part of the respondent as a result whereof the Colors channel of the petitioner had gone up in its ratings, it is not entitled to an order of injunction.
17. The parties are fighting litigations before different courts of law. The respondent, as indicated hereinbefore, intended to file a petition before this Tribunal but it has not done so far. No order of injunction, as noticed hereinbefore, has been passed in its favour.
18. We, for the purpose of disposal of the matter, would proceed on the premise that the respondent had done its best to perform its part of the contract but for one reason or the other it could not achieve the desired result. It is not in dispute and as has been pointed out by Mr.Mukul Rohtagi, the learned senior counsel appearing on behalf of the petitioner that from the chart filed by the petitioner in the mater of placement of channel is far below the Sony so far as the Dish TV and Tata Sky are concerned.
19. The respondent in its e-mail dated 17.05.2010 for all intent and purport expressed its helplessness stating as under:
“A. Placement of Colors on Tata Sky and Dish TV
In terms of the relevant TRAI regulations, we as aggregators do not have the right to determine the tiering and packaging of a channel which is the sole prerogative of the distributor, who cannot be forced to accede to any particular demand in respect thereof. You have had an experience where despite payment of huge carriage fees you were able to place Colors only on the ‘add-on’ tier of Tata Sky. Further even under the new Competition Act, any attempt by us to force an unwilling or reluctant distributor to package our channels only in a manner as determined by us will be treated as anti-competitive and lead to sanctions being imposed on MSMD.
We have been able to negotiate placement of Colors in the Super Hit Pack on Tata Sky and in Platinum Pack on Dish TV. It is noteworthy that we have been successful in continuously receiving the subscription revenues without any corresponding outgo in the form of carriage fees. I’m sure you will agree with me that Colors’ marquee position among Hindi GECs also owes much to the reach it has achieved thanks to the unstinting efforts of MSMD’s distribution team and the inherent strengths of the OneAlliance’s diverse bouquet of channels and its countrywide network.
The very fact that we have been fulfilling all our business and commercial obligations under the MOU underlines our deep understanding and mastery of the unique features of the distribution business in India, dealing as we do with thousands of analogue operators, hundreds of digital operators and across diverse analogue and digital platforms, which is unlike any other in the world. You are welcome to share with us any practical suggestions regarding the distribution of Viacom 18 channels but we would rather that you refrained from giving us gratuitous advice on the formulation of our deals. We know how to conduct our business.”
20. We have also noticed heretobefore that the Chief Executive Officer of the respondent in a Press interview has stated that the Colors channel is No.1 in the market. It, however, again is not denied or disputed that the respondent had been charging only Rs.4 per subscriber per month as against the rate fixed by the Telecom Regulatory Authority of India (TRAI) for non-CAS area i.e. for analog mode @ Rs.20/- per month whereas from DTH platform @ Rs.10 per month as would appear from the respondent’s own document being Anneuxre-2 to the Email dated 16.06.2010, which reads as under:
“Annexure 2
Proposal for Viacom 18 channel – “COLORS”
Premises:
· RIO rate declared to TRAI for Analog market will be Rs.20/-
· DTH RIO rate will be Rs.10/- (half of cable as per TRAI)”
21. We need not go into the question as to whether the respondents had been showing lesser number of subscribers from some of its local cable operator as for example, Big 10 Enterprise; as it appears that the number of subscribers has been shown to be 421 but from the affiliation agreement annexed by the petitioner to its Additional Affidavit, it appears that the agreed subscriber base was 1093.
22. We need not also enter into that controversy for the present in view of the fact that according to the respondent variation in the subscriber base is wholly immaterial as respondent has been paying a fixed fee to the petitioner.
23. We must, however, notice that on 17.08.2010 the petitioner has not only terminated the contract, it entered into a MoU with one Networks 18 Media and Investment Ltd. The respondent had in its application under Section 9 of the Arbitration and Conciliation Act before the Bombay High Court made endeavours to obtain an order of injunction against it. It did not succeed. The doctrine of ‘Amity’ or ‘Comity’ may be held to be applicable.
24. From a letter dated 15.07.2010 addressed by the aforementioned Networks 18 to the petitioner herein, it would appear that it therewith annexed a copy of the notice issued by M/s Anil Menon and Associates, Advocates, dated 14.07.2010, wherein it was stated:
“8. In the circumstances, we are instructed to call upon you which we hereby do and put you to notice that our clients will take all such actions at law as they may be advised in the matter to protect their rights. In the meantime we call upon you to immediately cease and desist from taking any steps to distribute the aforementioned Viacom 18 channels including but not limited to entering into any agreements with Cable Operators, Multi System Operators, DTH Operators, Affiliates or any other third party in order to distribute the signals of the said Viacom 18 channels or otherwise act against the interests of our clients failing which our clients will adopt such legal proceedings as they may be advised, which shall be entirely at your risk as to costs and consequences.”
25. An interesting question which arises for our consideration is as to what would be the effect of not giving 90 days notice.
26. The contract in question is not governed by any statute. The respondent does not say that it, in terms of any Parliamentary Act and/or any other subordinate legislation including any Regulations framed by the TRAI, was entitled to a notice.
27. The legal rights claimed by the parties, thus, arise under contract qua contract. The provisions contained in a contract so far their specific performance is concerned, are governed by the provisions of Specific Reliefs Act, 1963.
28. Section 14(1)(a) of the Act states that a contract for the non-performance for which compensation in money is an adequate relief cannot not be specifically enforced.
29. Section 41(e) of the Specific Relief Act provides that an injunction cannot be granted to prevent the breach of the contract, the performance of which would not be specifically enforced.
30. It is true that orders of injunctions, apart from the provisions contained in Order 39 Rules 1 and 2 of the Code of Civil Procedure can also be granted under the inherent power of the court.
31. Sub-section (2) of Section 38 of the said Act clearly states that the matters relating to the grant of perpetual injunction would be governed by Chapter-II of the Act which as noticed hereinbefore contained in Section 14 of the Act.
32. If neither any temporary injunction can be granted nor a perpetual injunction can be granted, the question which would arise for consideration is whether it is a case of this nature an order of temporary injunction should be granted in favour of the petitioner. While examining the said question we are not oblivious of the fact that the legal position which we had taken into consideration hereinbefore would stricto sensu apply in the event the respondent approached this court and applied for an order of injunction. Would that mean that in a situation of this nature where petitioner steeks to obtain an order of injunction restraining the respondent from representing to others that it is acting on behalf of the petitioner, will be justified in taking account the aforementioned provsions of the Specific Relief Act?
33. We are of the opinion that if on the materials placed on record, the respondent was not entitled to an order of injunction, we fail to see any reason as to why the same legal provisions cannot be taken aid of for the purpose of granting an order of injunction in favour of the petitioner herein. We say so, because the contract in question can either be specifically enforced or there is a legal bar.
34. There is another aspect of the matter which is neither in doubt nor in dispute. The respondent is a distributor of the petitioner. It for all intent and purport and in fact is an agent of the petitioner. A principal having regard to the provisions contained in Section 201 of the Indian Contract Act may terminate the agency at any point of time.
35. It is not a case where the respondent claims any interest in the property which would mean that the right of the petitioner in its business of broadcasting as envisaged under Section 202 thereof.
36. Moreover, Section 206 of the Indian Contract Act provides that reasonable notice must be given of such revocation as otherwise the damage thereby resulting to the principal or the agent, as the case may be, must be made good to the one by the other.
37. The clause providing for termination of contract as contained in para XX of the MoU, as indicated hereinbefore by itself is not a negative covenant. If the said provision is not a negative covenant, the exception contained in Section 42 of the Specific Relief Act would also not apply in favour of the respondent.
38. The only point which survives for consideration is as to whether assuming that the petitioner is guilty of suppression of material facts would it be entitled to any equitable relief?
39. There is nothing on record to show that the petitioner is guilty of suppression of a fact which is material for the purpose of grant of refusal to grant an equitable limit. Moreover, suppression of some fact by itself may not be sufficient to deny plaintiff a relief of grant of injunction. We may notice the following passage from the SPRY on Equitable Remedies (5th Edition):-
“Sometimes over-simplified or misleading statements of equitable principles of this nature do not cause mischief. Judges who are experienced in exercising equitable discretions may have no difficulty in granting relief in appropriate circumstances where, for example, the hardship that will thereby be caused to the defendant is sufficiently offset by the inconvenience or detriment that would be suffered by the plaintiff if he were left without an equitable remedy. But nonetheless it is found that a statement that has been extrapolated from an equity judgment, and is then construed out its context, give rise to use of the maxim, he who comes to equity must approach the court with clean hands. This is doubtless a maxim which is both striking and succinct and which may be found to be of value for many explanatory or justificatory purposes. But when its content is examined it is seen specific performance is sought, relief should in the particular circumstances be refused. So it has been established that even a plaintiff who has been guilty of fraud, which is hardly consistent with clean hands, may under some circumstances obtain equitable relief, such as where, for example, the fraud has been waived by the other party and there is no additional consideration that renders the grant of that relief unjust. Again, it has been laid down that the absence of clean hands is of no account “unless the depravity, the dirt in question sued for”. When such exceptions or qualifications are examined it becomes clear that the maxim that predicates a requirement of clean hands does not set out a rule that is either precise or capable of satisfactory operation. Rather in order to establish whether equitable relief should be refused through dishonesty or on a cognate ground it is necessary to examine precisely the rules and practices which have been established and followed by courts or equity and which are generally referable to such established considerations as fraud, misrepresentation, illegality or unfairness. “
40. Keeping in view the legal position as noticed hereinbefore, in our opinion, there cannot be any doubt or dispute that the respondent in the event of a success can be adequately compensated on monetary terms. Furthermore, in a situation of this nature, if it is not entitled to obtain a decree for specific performance of contract, we fail to understand how a court of equity in a situation of this nature allow the respondent to operate under a contract which has been terminated validly or invalidly for a period of 90 days from the date of termination of contract. We have no doubt in our mind that the parties were in ad idem while arriving at the said contract viz. that the period of 90 days should be a reasonable one, keeping in view of the fact that the parties are required to wind up their business, realize their dues from the other parties with which it had entered into contracts and/or arrangements but as noticed hereinbefore the provisions of both Specific Relief Act as also the Indian Contract Act must be held to have taken into consideration the hardships of a party who would be deprived from the benefit of a notice specified in terms of a contract. We have no doubt in our mind that the parties entered into a contract keeping in view their respective interests as also the business efficacy. But a litigation starts only because one party is aggrieved by the act of the other.
41. Keeping in view the fact that the petitioner has been able to show that the respondent has not been able to place its channel at No.1 at least so far as transmission of signals made on DTH platform by Tata Sky and Dish TV is concerned and furthermore it had expressed its helplessness to do so, it was a pointer to the fact that it had not been able to achieve the desired result. If by reason thereof the petitioner has lost faith and confidence in the respondent, prima facie, we are of the opinion that a court of law shall not thrust an unwilling principal on an agent, particularly, when in terms of the provisions of the Indian Contract Act the latter would have a legal remedy to pursue, namely, to sue it for damages.
42. We may furthermore notice that the Supreme court in Southern Roadways Ltd. Vs. S.M. Krishnan - 1989(4) SCC 603, held as under:
“13. Even otherwise, under law revocation of agency by the principal immediately terminates the agent’s actual authority to act for the principal unless the agent’s authority is coupled with an interest as envisaged under Section 202 of the Indian Contract Act. When agency is revoked, the agent could claim compensation if his case falls under Section 205 or could exercise a lien on the principal’s property under Section 221. The agent’s lien on principal’s property recognized under Section 221 could be exercised only when there is no agreement inconsistent with the lien. In the present case the terms of the agreement by which the respondent was appointed as agent, expressly authorizes the company to occupy the godown upon revocation of agency. Secondly, the lien in any event, in our opinion, cannot be utilized or taken advantage of to interfere with principal’s business activities.
It was furthermore observed:
18. The crux of the matter is that an agent holds the principal’s property only on behalf of the principal. He acquires no interest for himself in such property. He cannot deny principal’s title to property. Nor he can convert it into any other kind or use. His possession is the possession of the principal for all purposes. As the Kerala High Court in narayani Amma v. Bhaskaran Pillai observed:(AIR p.217 para 6)
“The agent has no possession of his own. What is called a caretaker’s possession is the possession of the principal.”
43. We, however, are of the opinion that the submission of Mr.Rohtagi that the petitioner has engineered a newspaper report in regard to an order of this Tribunal may not be correct.
44. For the views we have taken, we are of the opinion that other contentions raised by the parties need not be gone into as we are satisfied al beit prima facie that the respondent cannot in law be permitted to carry out its business in terms of the contract.
45. Keeping, thus, in view of the fact that the petitioner has raised a triable issue, and having established a prima facie case, in the fact and circumstance of this case and for the reasons assigned heretobefore, we are of the opinion that the balance of convenience as also the irreparable injury also lie in favour of the petitioner. Not only law is in favour of the petitioner, it would suffer substantial loss as also a third party if the respondent is allowed to perform the contract despite its termination. Balance of convenience doctrine should also be considered having regard to the legal position as also the fact that a third party has derived a legal right to carry out its business.
46. For the reasons aforementioned, the respondent is hereby restrained from representing the petitioner with any third party untill further orders.
We may not be taken to have entered into the respective rights of the parties under the contract as we have taken a prima facie view of the matter.
In the facts and circumstances of this, however, there shall be no order as to costs.