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Now let us consider whether the petitioner is entitled to obtain an injunction against the respondent for enforcement of negative covenant during the subsistence of the said agreement. In the case of Gujarat Bottling Co. Ltd. (supra), the Supreme Court laid down the following tests for exercising discretion by the Court while granting an order of injunction towards enforcement of a negative covenant by the plaintiff against the defendant:- (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favvour of the plaintiff; and (iii) whether the plaintiff would suffer irreparable injury if his prayer for interlocutory injunction is disallowed. In paragraph 43 of the said decision, the Supreme Court further held:-
"The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the Plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the Plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could to be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies."

Even the argument based on section 42 of the Act of 1963 does not advance the case of the petitioner. Section 41 of the Specific Relief Act, 1963 lays down circumstances when the Court cannot pass an order of injunction. Amongst others, clause (e) of section 41 of the Act of 1963 provides that an injunction cannot be granted to prevent breach of contract, the performance of which would not be specifically enforced. Section 42 of the Act of 1963 lays down that where the contract comprises affirmative agreement to do 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. The non-obstante clause contained in section 42 of the Act of 1963 lifts the bar under section 41(e) to the grant of an injunction to prevent breach of a contract the performance of which would not be specifically enforced. However, as held by the Supreme Court in the case of Gujarat Bottling Co. Ltd. (supra) while considering the prayer for an order of injunction against a party for performance of the negative covenant, the Court has to exercise its discretion by applying sound judicial principles to fulfil the three tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favvour of the plaintiff; and (iii) whether the plaintiff would suffer irreparable injury if his prayer for interlocutory injunction is disallowed. In the said case the Supreme Court found that the plaintiff Coca Cola Co. Ltd. , the respondents in the special leave petition, had not only made out a prima facie case for enforcement of the negative covenant by the defendant no. 1 Gujarat Bottling Co. Ltd.(supra) the balance of convenience was also in favour of the plaintiff for enforcement of the said negative covenant against the defendant no. 1 Gujarat Bottling Co. Ltd.(supra). In paragraph 45 of the said judgement in the case of Gujarat Bottling Co. Ltd.(supra) the Supreme Court found that the refusal to pass an order of injunction for enforcement of a negative covenant in favour of the plaintiff Coca Cola Co. Ltd. would result in the latter suffering irreparable injury. On these grounds the Supreme Court upheld the order of injunction passed by the High Court against the defendant no.1 enforcing the negative covenant.

In the present case, having regard to the negative covenant contained in clause 2A of the said agreement which is subsisting, the petitioner might be successful to make out a prima facie case that the same is lawful during the subsistence of the said agreement. However, as regards the other two requirements for granting of interlocutory injunction, viz., balance of convenience and irreparable injury, I find that under the said agreement the petitioner is not required to do anything to improve the skill of the respondent as an Artist. As a consideration for the respondent acting in any film produced by the petitioner, the latter has to pay only the remuneration to the respondent at the agreed rate. It could not be the case of the petitioner that it is only producing films with the respondent alone and not with any other artist. The respondent in his letter dated December 28, 2017, relied upon by the petitioner in its supplementary affidavit, asserted that on earlier occasions the petitioner raised no objection to his doing films with M/s Surinder Films as also M/s Heartbeat Productions without obtaining its prior approval. In its supplementary affidavit the respondent has not disputed the said facts. Even in its notice dated December 12, 2017 addressed to the respondent the petitioner has alleged that in the event the respondent does not remedy the breach of the negative covenant it shall pursue its available remedy, inter alia, to claim damages against him. It has not been suggested by the petitioner that the respondent does not have the financial capacity to pay the damages, if any, awarded against him in the arbitral proceeding. In these facts, I do not find that the balance of convenience is in favour of the petitioner or that if its prayer for injunction under section 9 of the Act of 1996 is disallowed the petitioner would suffer any irreparable injury.