Delhi High Court
Fast Trax Food Pvt. Ltd. vs Elena Norman & Ors. on 9 March, 2010
Author: V.K. Shali
Bench: V.K. Shali
* 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
IA 2767/2010 in CS(OS) 395/2010 Page 1 of 8
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
IA 2767/2010 in CS(OS) 395/2010 Page 2 of 8
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
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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
IA 2767/2010 in CS(OS) 395/2010 Page 4 of 8
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
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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
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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.
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(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 IA 2767/2010 in CS(OS) 395/2010 Page 8 of 8