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7. Admittedly the defendant No. 2 is not a party and signatory to the Joint Venture Agreement. The plaintiffs in paragraph 36 of the plaint have categorically asserted that if the parties to the JVA cannot come to a mutual decision the same would be required to refer to the arbitration under clause 17.2. It was also stated therein that the plaintiffs are unable to refer the dispute to the arbitrator in view of the fact that the defendant No. 2, who is the prime done and the moving force and spirit and de facto party to the Joint Venture Agreement, through the medium, mode and channel of defendants No. 1 & 4, is not a party to the said arbitration agreement. The arbitration agreement namely Clause 17.2 is admittedly a part of the Joint Venture Agreement. Thus it is admitted by the plaintiffs that defendant No. 2 is not a party to the Joint Venture Agreement. Dr. A.M.Singhvi appearing for the plaintiffs submitted that the court should lift the Corporate veil and find out as to who is the prime done and the moving force and de fad o party behind the defendants 1 & 3, and on such consideration if it is found that the defendant No. 2 is the moving force and in fact the principal of which use defendants No.1 & 3 are he agents then the court can and has the power to grant an injunction as sought for. He further submitted that according to the terms of the agreement, the agreement was not otherwise determinable but for and on happening of particular event as envisaged in the said agreement namely - failing to receive the approval from the competent authority. He submitted that most of such approvals have already been received and in fact the plaintiffs and defendant No. 4 are awaiting the formulation of the policy by the Government of India in the matter on announcement of which the license would also be received by defendant No. 4 and thus in the light of the aforesaid facts the present JVA was not determinable and therefore, an injunction could be granted by this court even as against the defendant No. 2. He further submitted that there is a negative covenant in the JVA and the plaintiffs seek to enforce the same.

10. I have also carefully analysed the conditions of the Joint Venture Agreement and on careful perusal of the same I am prima facie satisfied that the said agreement is determinable in nature. When clauses 2.2 and 3.2.3 are read together the intention of the parties is clear and apparent that the contract could be determined at the option of the parties. The defendants No.1 to 3 have taken a stand in their letter dated 31.1.1998 that they are terminating the agreement for not obtaining the approval within the time frame as stipulated in the agreement. The agreement provided for a time limit to obtain the approval and it is admitted that within the aforesaid time frame the approval could not be obtained as the Government is yet to formulate and announce the policy in respect of the project. If a contract is determinable no suit for specific performance of the said contract would lie which is settled law by now. It is provided by Section 38 of the Specific Relief Act that in granting an injunction to prevent the breach of a contract the Court is to be guided by the rules contained in Chapter II relating to specific performance. Section 41(e) states that an injunction cannot be granted to prevent the breach of a contract, the performance of which could not be specifically enforced. There is however, an exception provided under Section 42 that if a particular contract contains both positive and negative covenants then in such a case the court can grant an injunction to perform the negative covenant. It is also settled law that even in such a case a party has to satisfy the three primary factors for grant of injunction. Counsel for the plaintiffs initially did not submit that the plaintiffs are seeking to enforce any negative covenant in the present case. However, at the time of his rejoinder submissions, he referred to Clause 14 which is non-competing clause and submitted that this being in the nature of negative covenant injunction could be sought for performance of the same. The plaintiffs however, have not pleaded in the plaint that there is a negative covenant in the contract. It is nowhere pleaded that the suit has been instituted to give effect to the said negative covenant and that injunction is sought for to perform the negative covenant. The plaint also does not contain any prayer for a relief of enforcement of a negative covenant. Even assuming that there is a negative covenant in the agreement and the plaintiffs could enforce the same as provided for under Section 42 of the Specific Relief Act, the same could be enforced and injunction could be obtained only in respect of a contract which is valid and subsisting. Since the defendant No. 2 and the plaintiffs had no privity of contract, the defendant No. 2 had no obligation qua the plaintiffs under the Joint Venture Agreement or otherwise and thus no injunction could be granted against the defendant No. 2 compelling performance of any negative covenant in the contract. The said negative covenant, if any, at best binds the plaintiffs and the defendants No.1 & 3 and not the defendant No. 2.