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7. Mr. Chagla, learned Counsel appearing in Notice of Motion No. 676 of 2000 has recapitulated the facts in that particular case. The learned Counsel has submitted that the negative covenant contained in Clauses 6 and 22 are not in restraint of trade. The breach of the contract is clear. In terms of Clause 6, an enormous amount of money has been spent on the training of the defendant. The covenant contained in Clauses 6, 21 and 22 are affirmative as well as negative in nature. He submits that the excuse given for leaving the company is an afterthought. This is a clear case of illegal inducement being offered by Sahara Airlines. The plaintiffs are perfectly within their right in accordance with the contract to rationalise the criteria for fixation of seniority. The excuse put forward by the defendant is baseless and misconceived and has been made only as a prelude to justify the breach of the contract. The seniority list was in fact duly published in July, 1999. The objections were invited and they have been dealt with. He submitted that if in a matter of this nature, the defendants are successful in resisting an injunction, it would mean that there is no sanctity of contract. Learned Counsel submits that the sanctity of contract must be enforced by the courts on the principles of equity and good conscience. Otherwise it would lead to inducements being offered by the competitors. This has happened quite blatantly in the present case. Eight pilots of the plaintiff have left and joined the competitor giving only lame excuses for the breach of the contract. Learned Counsel submits that it will be in the public interest to enforce the contract by way of injunction. If this is not done, it would send a totally wrong signal in the Airline industry. The Airlines will cut corners in training the pilots. This may lead the Airlines to curtailing the extent of training as the Airlines would not know as to how long the pilot that has been trained by them is likely to serve them. Learned Counsel readily agrees that so far as law in India is concerned, there can be no injunction on the basis of a negative covenant in the post contract period. This would be void under section 27 of the Contract Act. However, during the period of contract injunction can and should be granted. He submits that balance of convenience is clearly in favour of the plaintiff. If these pilots are permitted to join Sahara Airlines it would cause irreparable loss. On the other hand, if the injunction is issued, the defendant would not remain idle. He would still be entitled to fly other kinds of planes. It may be that he would get a lesser salary but this would not be sufficient to prevent the Court from granting the injunction sought. The learned Counsel had very fairly stated that there is a judgment of this Court given by Lodha, J., in the case of Harjit Singh Kang v. Jet Airways (India) Put. Ltd., in Appeal from Order No. 837 of 1996 decided on 24th July, 1996 which would need to be distinguished. In that case the plaintiffs had filed a suit in the City Civil Court seeking an injunction on the basis of an implied negative covenant. There was no express negative covenant like in the present case. The City Civil Court had granted an omnibus injunction. According to the learned Counsel, in the present case the injunction is restricted only to B-737-300/400 series. Therefore, the observation made by Lodha, J., would not be applicable to the facts and circumstances of this case. Furthermore, Lodha, J., has refused to grant the injunction on the basis of the finding that there is no implied negative covenant. The negative covenant has been specifically provided in all the letters of appointment and in the indemnity bonds in view of the judgment of Lodha, J. The defendant in this case has agreed to exclusively work for the plaintiff for a period of 7 years. Thus he cannot now be permitted to work with any other Airline in India on B-737-300/400 series Aeroplanes.

8. Mr. Dwarkadas, learned Counsel appearing in Notice of Motion Nos. 633 and 634 of 2000 has made some additional submissions. In Suit No. 712 of 2000 the defendant had been appointed on 9th May, 1996; According to the learned Counsel, after the judgment of Lodha, J., the defendant executed a bond sometime in the year 1997 which contain an express negative covenant. This, according to the learned Counsel, was a complete negative covenant and there is no option left with the employee. Although the bond is executed on a stamp paper of 1996 it was executed within the stipulated period of six months. The resignation of the defendant was given on 6th December, 1999, only one day before joining the Sahara Airlines. Distinguishing the judgment of Lodha, J., the learned Counsel submitted that a perusal of para 17 of the judgment would show that if the Court had come to the conclusion that there was an implied negative covenant then the injunction would have followed. It is only because the Court came to the conclusion that no negative covenant can be implied that the injunction was refused. The learned Counsel has also reiterated the submission made by Mr. Chagla to the effect that the City Civil Court had granted an omnibus injunction and thus the appeal was allowed by Lodha, J. Furthermore, the learned Counsel submitted that injunction in similar circumstances had been given by the Supreme Court in Golikari's case (supra). In that case there was a similar affirmative convenant as well as the negative covenant. In that case negative covenant had provided for an obligation to' serve the company. Liquidated damages were provided in case of breach of contract and the negative covenant not to engage or carry on the business being carried on by the company. He was also not to serve in any capacity for any other company carrying on similar business. Learned Counsel has reiterated that the plaintiffs are not seeking any restraint against the defendant in the post contract period. The plaintiff is only seeking an injunction during the period of the contract. Learned Counsel has also relied on the observations of the Supreme Court in para 34 of the Coca Cola case. In this it is reiterated that except in cases where the contract is wholly one sided, normally the doctrine of restraint of trade is not attracted in cases where the restriction is to operate during the period the contract is subsisting and it applies in respect of a restriction which operates after the termination of the contract.

18. I am unable to agree with the submission of Mr. Dwarkadas that Lodha, J., would have granted the injunction if the Court had come to the conclusion that there was an implied negative covenant. There is no indication to this effect in the judgment of Lodha, J. On the contrary Lodha, J., has come to the conclusion that even if it is assumed that there is an implied negative covenant, still the relief of injunction cannot be granted to the plaintiffs. Even in the Coca Cola case, the Supreme Court has categorically held that the Court is 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 employees either to idleness or to serve the employer. Lodha, J., has followed the law laid down by the Supreme Court and has also come to the conclusion that grant of injunction would render the defendant, in that case, either idle or compel him to serve the plaintiff. It is a settled principle of law that the relief of injunction should not be granted if it would compel the employee to serve the employer or when the grant of injunction will lead to the employee remaining idle. Grant of an injunction which would lead to either of these two results would not be in public interest. The plaintiffs had relied on the observations of the Supreme Court in Golikari's case that merely because the employees may be compelled to work on a lessor remunerations no consideration against enforcing the covenant. These observations are of no avail to the plaintiffs in the present case. The defendants have at their own expense acquired the training for flying new generation Aeroplanes. There are only two scheduled Airlines, plaintiff and Sahara Airlines in which these Aeroplanes are operational. An injunction restraining the defendants from flying B-737-300/400/500 is bound to render them idle. It would clearly also amount to specific performance of the contract in that the defendants would either have to remain idle or will be compelled to serve the plaintiff alone. Lodha, J., has refused to grant the injunction even after assuming that a negative covenant can be implied from the agreement. In paragraph 21 of the judgment, Lodha, J., has observed as follows;

"21. In view of the aforesaid ratio of the Supreme Court in M/s. Gujarat Bottling Co. Ltd. (supra) it is clear that Court is 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 to idleness or to serve the employer. In the present case, in my considered opinion, the negative covenant cannot be implied and, therefore, question of grant of injunction to enforce the negative covenant would not arise. Even if for the arguments sake it is assumed that the parties had presumed intention that the defendant shall serve the plaintiff alone an exclusively and shall not serve anybody else during the period of the contract, grant of the injunction in the facts and circumstances of the case would definitely lead either the defendant to remain idle or he shall be compelled to serve the plaintiff and if that be the reason, in my view the plaintiff was not entitled to injunction and the temporary injunction granted by the trial Court cannot be sustained. The defendant is admittedly a Pilot having experience in flying aircrafts. There is no dispute that the defendant has acquired the training for flying the sophisticated Boeings i.e. 737-400 and such other aircrafts. The job of a pilot and that too of pilot in command for which the defendant has been engaged by the plaintiff is not an ordinary job nor having acquired such training and spent so many years in flying, he can be expected to serve as member of the ground staff in any other airline as suggested by the learned Counsel for the plaintiff-respondent, a qualified and trained pilot having acquired that skill can either do that job or no job at all and, therefore, if injunction granted by the trial Court is allowed to sustain or the plaintiff is granted such injunction against the defendant either the defendant would remain idle because he cannot work on any other job or that he will be compelled to serve the plaintiff alone. It is not the matter of remuneration but it is the matter of job for which man is equipped, trained and skilled and a person having acquired training and still as pilot of flying sophisticated Boeings, he cannot be expected to do a job of ground staff. Obviously therefore, injunction granted by the trial Court would either compel the defendant to remain idle or would force him by circumstances to serve the plaintiff and I am afraid if injunction granted to the plaintiff would result in such consequence, the injunction cannot be justified. Therefore, in my view, the trial Court cannot be said to have exercised its discretion while granting injunction in accordance with law and well settled principles."