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7. Mr. Dada learned Senior Counsel for the petitioner submitted that from the facts on record, it is clearly established that the respondent had agreed to supply to the petitioner the PFA generated at the respondent's Thermal Power Plant. In the first year, the petitioner had agreed to lift minimum 1000 M. Tones of the PFA and for remaining 29 years, it is agreed to lift 3000 M. Tones of PFA per day. The PFA was to be supplied free of costs and the petitioner was only to pay consideration at the rate of Rs. 30/- per M. Tones of Prozocrete actually manufactured. There was no default on the part of the petitioner in payment. The petitioner is always and was willing to perform his part of contract. The alleged default namely alleged non lifting of the entire PFA, the alleged default in non erecting of the remaining 3 Hoppers (Silos), are the points of disputes, which were referable to the Arbitration. The respondent itself made it impossible to the petitioner to erect remaining 3 Hoppers (Silos) by not giving non-forest land and refusing to deliver the PFA at the one Hopper (Silo) contracted but requiring the petitioner to transport it from power plant to the Hopper site. Counsel for the petitioner also submitted that under Clause 3.3 of the agreement, the respondent could sale or to dispose of the PFA only over and above the quantities of 1000 M. Tones and over and above 3000 M. Tones of PFA in the first year for the remaining period of 29 years. There was not only a positive agreement between the parties that the respondent would supply to the petitioner 1000 or 3000 M. Tones, as the case may be, of PFA, but there was implied negative covenant that respondent would not supply the PFA to anybody else, until 1000 / 3000 M. Tones of PFA was supplied to the petitioner. Learned Counsel for the petitioner submitted that petitioner was therefore, entitled to two of injunctive reliefs ; firstly a positive mandatory injunction, directing the respondent to supply 3000 M. Tones of PFA to the petitioner per day; and negative injunction restraining respondent from supplying any quantity of PFA to anybody else, until 3000 M. Tones of PFA per day was first supplied to it. Learned Counsel further submitted that mandatory injunction could not be granted, a negative inunction restraining sale to a third party could be granted under Section 42 of the Specific Relief Act, 1963.

9. Mr. Amey, learned Senior Counsel for the respondent, submitted that the contract admittedly was in respect of supply of PFA, which is a movable property of not any special value, nor an extra ordinary article of commerce and therefore, no specific performance of the contract for sale or delivery of such movable property could be granted. Specific performance of such contract could not be granted in view of Explanation (ii) to Section 10 of the Specific Relief Act, 1963. He further submitted that in any event, the contract for supply of PFA generated was not purely a contract of supply but involved performance of several minute and variety of acts of numerous detail/s, and since it would not be possible for the Court to supervise performance of the contract in all its details, the contract would not be specifically enforced in view of sub-clause (b) of Sub-section 14 of the Specific Relief Act. He further submitted that there was no negative covenant in the contract that the respondent would not sale or deliver the PFA to any stranger. There was no express covenant not to deliver the PFA to a third party. As there was no negative covenant, there was no question of enforcement of such negative covenant under Section 42 of the Specific Relief Act. He further submitted that in any event as the petitioner itself had failed to perform its part of the contract and failed to lift the PFA, which was offered, the case was clearly covered by the proviso to Section 42 of the Specific Relief Act, and therefore, the petitioner was not entitled to a negative injunction also.

14. Section 42 reads thus:

Injunction to perform negative agreement.-Notwithstanding anything contained in Clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstances that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement:

Provided that the plaintiff has not failed to perform the contract so far as is binding on him.

In the matter of grant of injunction, the practice in England is that where a contract is negative in nature, or contains an express negative stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is equitable and thus in principle a discretionary one and a defendant cannot resist an injunction simply on the ground that observance of the contract is burdensome to him and its breach would cause little or no prejudice to the plaintiff and that breach of an express negative stipulation can be restrained even though the plaintiff cannot show that the breach will cause him any loss [See: Chitty on Contracts, 27th Edn.,' Vol. I, General Principles, paragraph 27-40 at p. 1310; Halsbary's Laws of England, 4th Edn., Vol. 24, prescribes that notwithstanding anything contained in Clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. This is subject to the proviso that the plaintiff has not failed to perform the contract so far as it is binding on him. The Court is, however, not bound to grant an injunction in every case and an injunction to enforce a negative covenant would be refused if it would indirectly compel the employee either to idleness or to serve the employer. See : Ehrman v. Bartholomew, N.S. Golokari, at p.389.