Delhi High Court
Independent News Service Pvt. Limited vs Sucherita Kukreti on 25 January, 2019
Equivalent citations: AIRONLINE 2019 DEL 506
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* 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. CS(OS) No.43/2019 Page 1 of 10 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 CS(OS) No.43/2019 Page 2 of 10 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. CS(OS) No.43/2019 Page 3 of 10 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. CS(OS) No.43/2019 Page 4 of 10 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 CS(OS) No.43/2019 Page 5 of 10 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 CS(OS) No.43/2019 Page 6 of 10 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 CS(OS) No.43/2019 Page 7 of 10 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 CS(OS) No.43/2019 Page 8 of 10 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 CS(OS) No.43/2019 Page 9 of 10 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‟ CS(OS) No.43/2019 Page 10 of 10