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4. Now, the relief by way of injunction is governed in India by statute. Under Section 52 of the Specific Relief Act, 1877, the grant of an injunction is" placed in the discretion of the Court, a discretion to be exercised, of course, as the discretion of Courts always is. Under Section 56 of the Act, an injunction would be refused in a case where the performance of a contract, the breach of which is sought to be prevented, would not be specifically enforced. Section 21 of the Act enumerates contracts which the Court would refuse to enforce specifically, one of such contracts being a contract dependant upon the personal qualifications or volition of he parties or otherwise from its nature is such that the Court cannot enforce specific performance of its material terms. Section 57, however, provides that notwithstanding Section 56, Clause (f), where a contract contains an affirmative covenant to do a certain act coupled with a negative covenant not to do a certain act, the fact that the Court cannot compel specific performance of the affirmative contract shall not preclude ii from granting an injunction to perform the negative covenant, provided of course that the applicant has not failed to perform the contract so far as it is binding on him. It is obvious that the word 'preclude' must mean that the grant of an injunction in cases falling under Section 57 is still a matter of discretion of the Court and it is not as if the section compels the Court thereunder to grant the injunction. The principle enunciated in section 57 is illustrated by the rule in Limley v. Wagner, (1852) 1 D. M. and G 604, where the contract provided that A was to sing at B's theatre for 12 months and not to sing in public elsewhere. It was there held that though B could not obtain specific performance of the contract to sing at his theatre, he was entitled to an injunction restraining A from singing at any other place of public entertainment. It is clear from the wide language of section 57 and the illustrations to that section that the operation of the section is not confined to cases like (1852) 1 DM and G 604. The negative covenant need not be express as in the case of (1852) 1 DM and G 604. It may be implied as in illustrations (b) and (d). Illustration (d) shows that it may be implied even in the case of a contract of personal service. The well-recognised principle however is that unless the affirmative covenant is coupled with a negative one, an injunction is not to be issued. This principle is illustrated in Whitewood Chemical Co, v. Hardman, (1891) 2 Ch. 416. Under two agreement dated September 25, 1885, and July 24, 1889, the defendant there was engaged and was bound to serve the plaintiffs for a period of 10 years on a certain salary and commission and to give the whole of his time to the company's business. Kekewich J. who tried the action held that from the fact that the defendant had agreed to devote the whole of his time to the company's business, he could infer that there was a negative covenant, not an implied but an expressed one, and observed that though the covenant was in the positive and not in the negative, still, it was no less negative because it was in that positive form and following the authority in (1852) 1 DM and G 604 issued an injunction. The Appeal Court, however set aside the order of injunction passed by Kekewich J. and it did so on the ground that it refused to see a negative covenant in the contract. This is clear from the observations of Lindley L. J. at pp. 426 and 427. But it is also clear that Lindley L. J. did not dissent from the decision in (1852) 1 DM and G 604 but set aside the order of Kekewich J. on the ground that fhat order went beyond the authority in (1852) 1 DM and G 604. It has also been made clear by Key L. J. at pp. 430 and 431 of the report that the contract before them did not contain any negatives covenant sought to be spelt out by Kekewich J. and also in his observation that in (1852) I DM and G 604 Lord St. Leonards had expressly stated that if he had to deal only with an affirmative covenant that the defendant Wagnor would perform at Lumley's theatre, he would not have granted any injunction. At p. 431 Key, L. J. again observes:

" He (Lord St. Leonards) makes it clear that ha granted the injunction upon the express agreement on her part that she would not during a certain time sing for anybody else, and that if those negative words had not been there he could not have granted the injunction".

5. The decision in the case of Whitwood Chemical Co. (1891) 2 Ch. 416 thus does in no manner differ from Lumley's case. What it does is to caution that it is not to be extended and emphasises that an injunction cannot be granted in a case of a contract of personal service where there is only a positive covenant without an express negative covenant and where an injunction would mean indirectly specific performance of personal service which the Courts have consistently declined to specifically enforce. In Davis v. Foreman, (1894) 3 Ch 654 the Court held that though the covenant therein was couched in negative language, in substance it was positive and meant that the employer would retain the manager in his employ and, therefore, the covenant being affirmative and not negative, no injunction would be granted. This decision also is not in any way inconsistent with Lumley's case and the principle consistently followed that whereas the Court would decline to specifically enforce a positive stipulation as to personal service either directly by a decree for specific performance or indirectly by an injunction, it would enforce a negative covenant by directing that the defendant will not do a particular thing during the term of his employment and such a thing would not mean specific performance of an affirmative stipulation that he will serve his employer for a particular term. At page 656 of the report, the learned Judge gives out clearly the reason why he refused to grant an injunction.

Having considered all these aspects, the learned Judge ultimately held that the case before him was one where upon the principles well settled by the authorities, he ought to grant the injunction claimed, restraining the defendants from appearing for a period of four weeks in any entertainment other than in one of the plaintiffs' productions. Warner Brothers Pictures Inc. v. Nelson, (1936) 3 All ER 160, is yet another case where a restrictive covenant was enforced by an injunction and the principle upon which the injunction was granted was that though the Courts will not grant specific performance of a contract of service, that principle has for a long time been subject to the limitation that, when a person engaged by reason of special qualifications enters into a contract prohibiting him or her from working for anyone else, the negative stipulation would be enforced by an injunction. The only cases where an injunction would be refused would be those where damages could be assessed and where they would be a sufficient remedy, I may observe that on behalf of the defendant an argument was addressed to the Court that the terms of the contract in that case were too wide and that severance of the good and the bad terms was not possible. But that contention was negatived. The learned Judge held that where the enforcement of such negative covenants did not amount to a decree for specific performance of the positive covenants or to obliging the employee to remain idle or perform the positive covenants, such negative covenants can be enforced by an injunction. But the granting of such an injunction was discretionary and should be limited to what is reasonable in all the circumstances of the case. Thus, in England it is well settled that an injunction would issue in a case of an express negative covenant if the effect of it is not specific performance of the affirmative agreement of personal service.

Thus even though the contract in this case permitted the employers to terminate the agreement at any time and that too without assigning any reasons on payment of a month's salary and though there was no express negative covenant, and injunction was issued restraining the employee serving, working or being employed by any other person or persons. In Madras Rly. Co. v. Thomas Rust, ILR 14 Mad 18, the employee was a carriage painter who had been brought from England at the company's expense. But that was not the only consideration on which an injunction was granted, as it appears clear from the contentions advanced. Counsel for the employee contended in that case that the contract could not be enforced by a decree for specific performance as being a contract of service and also as extending over a period of three years, and that section 57 could not be applied to a case where the two objections to specific performance above stated have concurred. He also contended that the agreement was unfair, one sided and wanting in mutuality; furthermore, that the parties regarded money payment as sufficient compensation for its breach. Dealing with the argument that when the remedy by specific performance of a contract is expressly refused by Chapter II of the Specific Relief Act, then an injunction cannot be granted and further that the contract being one extending over more than three years and therefore not capable by Section 21(g) of specific performance, Handley J., observed that such a contention would make section 57 of the Act a nullity. He also observed that Section 57 provided in the case of an affirmative agreement coupled with a negative agreement express or implied, that an injunction may be granted though specific performance could not and since it gives, as illustrations some of file contracts, specific performance of which a precluded by Section 21, Clause (b), why cannot an injunction be granted in the case of those, specific performance of which is refused by Section 21 Clause(g)? He held that in that view a case had been made out for the interference of the Court by an interim injunction and granted to the plaintiffs an injunction though on the condition that the plaintiff company should take back the defendant into its service if he was willing, and should not, pending the decision of the suit, exercise its powers under the agreement of dispensing with his services on three months' notice. Charles worth v. MacDonald, 1LR 23 Bom 103 was a case of an agreement of an assistant physician and surgeon by the plaintiff at Zanzibar. There also the learned trial Judge relying upon 1891-2 Ch. 416 declined to infer a negative covenant and further held that even if such a covenant were inferred, it would be void under Section 27 of the Contract Act as being in restraint of trade. On appeal, the judgment and decree passed by the learned trial Judge were set aside, Farran C. J. holding that it was not an agreement which restrained the defendant from exercising his lawful profession. He also held that such an agreement did not fall within Section 27 of the Contract Act and that if it did, all agreements for personal service for a fixed period would be void. He then observed that an agreement to serve exclusively for a week, a day, or even for an hour, necessarily prevented the person so agreeing to serve from exercising his calling during that period for any one else than the person with whom he so agreed and therefore, it could hardly be contended that such an agreement would be void. In truth, a man who agreed to exercise his calling for a particular wage and for a certain period agreed to exercises his calling and such an agreement did not restrain him from doing so. To hold otherwise would be a contradiction in terms. He also observed that illustration (d) to Section 57 of the Specific Relief Act was a legislative decision to the same effect. As regards the question whether an injunction ought to be granted or not the learned Chief Justice held that as the Specific Relief Act did not apply to Zanzibar the rule in 1891-2 Ch. 416 should apply. But he held at the same time that the facts of the case before him were different from those in 1891-2 Ch. 416 because there was a negative covenant in the agreement before him and that it was the settled law in England that if the parties expressed by negative words their intention that the employee was not at liberty to carry on business on his own account during the term of his engagement, the Court would enforce that agreement by an injunction. As regards the observations made in some of the English cases regarding the propriety of extending the law of injunction to contracts of personal service which contained a negative covenant, he said that the Indian Legislature had adopted that extension and that an action for damages would afford the employer no protection, certainly ho adequate protection. A case almost on all fours with the instant case--is to be found in V. N. Deshpande v. Arvind Mills Co Ltd., 48 Bom LR 90: (AIR 1946 Bom 423) where Kania A. C. J. and Gajendragadkar J. held that agreements of service containing a negative covenant preventing an employee from working elsewhere during the term covered by the agreement are enforceable. It was also held that the existence of a negative covenant in such agreements did not make the agreements void under Section 27 of the Contract Act on the ground that it was in restraint of trade, and that illustrations (c) and (d) to Section 57 of the Specific Relief Act, 1877, in terms recognised such contracts and the existence of a negative covenant therein. They also held that the question whether a particular covenant in a particular agreement was unreasonably wide had to be decided on the nature of the agreement, the qualifications of the employee and the service he had to render, considered along with the places where the employee could get alternative services of the same nature. The terms of the agreement in that case were that the defendant, who was appointed a weaving master in the plaintiff company would neither absent himself from his work without leave nor engage himself directly or indirectly to work for any other person, firm or company in any capacity whatever nor attempt to impede his employers in their business nor divulge any of the secrets, information or connections to any other person whatever. Clause 8 provided that the weaving master should devote his whole time and attention to the services of the said agents, or if so directed to other agencies, wherein any of the above partners was interested as such, as aforesaid during the said term of three years and shall not during the said term whether he be in employment or not, get in the employ of or be engaged or be connected as a weaving master or as an employee under any title discharging substantially the same duties he might be discharging there with any firm or company or individual in any part of India including the Indian States for the space of the said years or any portion of the remaining period of the said term. Clause to provided that the said weaving master agrees not to leave the services of the said agents and not to serve or engage himself directly or indirectly to work for any other person, firm or company in India including the Native States in the same capacity and if the said weaving master must attempt to do so the agents had a right to prevent the said weaving master from doing so. The agreement further provided that the agents shall have this right in addition to and without prejudice to any right they might have to claim damages from the said weaving master. One of the contentions raised before the learned Judges was that the covenants in that agreement were unreasonable and in restraint of trade and therefore, the whole agreement was unenforceable. In dealing with this contention the learned Judges observed that agreements of service, containing a negative covenant preventing the employee from working elsewhere during the term covered by the agreement were known to Indian Courts and after citing Pragji v. Pranjiwan. 5 Bom LR 878; ILR 23 Bom 103; ILR 14 Mad 18, Subba Naidu v. Haji Badsha Sahib, ILR 26 Mad 168 and ILR 36 Cal 354, they observed that illustrations (c) and (d) to Section 57 of the Specific Relief Act in terms recognised such contracts and the existence of a negative covenant therein and therefore, it was futile to contend that the existence of a negative covenant in a service agreement made the agreement void, on the ground that it was in restraint of trade and against the principles found in Section 27 of the Contract Act. Dealing with the contention that the negative covenant was unreasonably wide and was, therefore, in restraint of trade the learned Judges negatived that contention on the ground that it was to subsist during the period of contract and not beyond and that such negative covenants which operated during the period of the contract were recognised by Courts of law even in England. In that case the learned Judges granted an injunction against the defendant restraining him from getting in the employ of or being engaged or connected as a weaving master or as an employee under any fide discharging substantially the same duties as a weaving master in the Rohit Mills or any other company, or individual in any part of India including the Native States for the term ending on December 31, 1946. Mr. Daru, however, contended that in Deshpande's case it was not contended that an injunction should not be granted where enforcement of a negative covenant would amount to specific performance of an affirmative covenant. That is true but even in the instant case, the enforcement of the negative covenant, in my view, would not amount to specific performance of the positive covenant but would only restrain the employee not to engage himself elsewhere in violation of the negative covenant he solemnly entered into. That would not mean that if an injunction were issued he would be compelled to serve the plaintiff company. This was precisely what was done both in Deshpande's case as also in 3936-3 All ER 160. Reliance, however, was placed on a recent judgment of the Calcutta High Court in Shree Gopal Paper Mills Ltd. v. S. K. G. Malhotra, AIR 1962 Cal 61. There Mr. Justice Ray held on the terms of the agreement before him that the agreement was a total restraint of trade that the restrictive covenant was too wide in terms and was unreasonable and was not for the protection of any proprietary interest of the plaintiff and therefore there was no enforceable negative covenant. The decision in this case is not applicable as the facts of the case and the reasoning adopted therein arc quite different from the ones in the instant case. Besides that decision is contrary to the one in 48 Bom LR 90: (AIR 1946 Bom 423) which is binding upon me and also the decision in ILR 36 Cat 354 a Full Bench decision of the Calcutta High Court itself. In my view, the facts in Deshpande's case, 48 Bom LR 90: (AIR 1946 Bom 423) are akin to the ones before me and therefore, the decision therein apart from it being binding upon me is applicable to the facts before me.