T. Meena Kumari, J.
1. This Civil Miscellaneous Appeal is filed questioning the order dated 5-2-2003 of the Civil Judge, City Civil Court, Hyderabad in IA No. 333 of 2003 in OS No. 41 of 2003.
2. The appellant herein is the respondent/defendant and the respondent herein is the petitioner/plaintiff in the said I. A./Suit.
3. The brief facts leading to the filing of the present CMA are as follows :
The appellant is doing business in regulating and transmitting Star Package Channels and those signals are available in the air for reception and transmission through digital decors on payment basis to the Cable Net Work like the respondent herein. The respondent is a CATV Network in the State of Andhra Pradesh and it is distributing and transmitting various satellite channels including pay and free channels. There was an agreement between the appellant and the respondent herein for the period from 29-6-2002 to 28-9-2002 on payment of monthly subscription at the rate of Rs. 6,00,000/- per month and the disputed period in this CMA is from 29-6-2002 i.e., the date of agreement. Though there is a default in payment of the subscription amount, the appellant has transmitted the channels to the respondent till 29-1-2003 and later it has discontinued the transmission of signals to the respondents herein.
4. Questioning the said action of discontinuing the transmission of the signals to the respondent, the respondent filed above suit seeking the following directions :
1. To declare the action of the defendant in disconnecting the signals of its channels to the plaintiff as illegal and unjust and consequently issue Mandatory Injunction directing the defendant to restore the signals of all the "Star Channels" to the plaintiff and continue to supply the same without any obstruction till ascertaining the actual subscribers base and pending the implementation of the conditional access system.
2. To declare that the defendant cannot increase subscription fees unilaterally at its whims and fancies pending implementation of the conditional access system and without ascertaining the actual subscriber base and further declare that the defendant is entitled to collect subscription fees as fixed by the Government.
3. To award costs;
4. And to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
Along with the suit, he also filed IA seeking the following relief :
"In all the above reasons, it is, therefore, prayed that this Hon'ble Court may be pleased to grant ad-mandatory injunction in favour of the petitioner/plaintiff, directing the respondent to restore the signals of the entire 'Star Net Work Channels' forthwith pending disposal of the suit, and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
5. The respondent sought the above reliefs mainly on the ground that though the appellant has increased the subscription fee abnormally, it is paying the same without any default. It is stated that even after expiry of the agreement, the respondent used to pay the agreed amount of Rs. 6,00,000/- per month as per the agreement and the same is being received by the appellant. It is further case of the respondent that the appellant has discontinued the signals to it without any intimation or notice and in collusion with the competitors of the respondent i.e., Hath Way Net Work, with a view to cause damage to the business of the respondent. It is stated that the Hath Way net work is the subsidiary of the appellant and as the respondent did not agree for the proposal of the appellant that the Hath Way Net Work Channel should have exclusive rights to distribute the channels in Hyderabad, Vijayawada and Visakhapatnam and the respondent can operate in the other parts of the State, the appellant with a view to have monopoly and to extract money from the respondent, it has disconnected the signals purposefully and intentionally though there is no default on part of the respondent herein.
6. The learned Chief Judge after hearing both sides has held that though the agreement has expired by 28-9-2002, the act of the appellant in providing the signals to the respondent up to 29-1-2003 shows that the relationship between the parties continued till the date of disconnecting the signals.
7. With regard to the question of default, the learned Chief Judge has held that the cheques issued by the respondent were not represented when it was returned with an endorsement of "affects not cleared, present again" and the appellant did not show that the cheques were presented in time but were not honoured. Considering the offer made by the respondent herein to deposit the alleged due amount in the Court coupled with the non-production of any document by the appellant showing the dishonour of cheques issued by the respondent, it has been held that the respondent is not a chronic defaulter and the offer made by it is genuine and very reasonable.
8. Further, the learned Chief Judge after considering the material on record, it has held that the appellant is trying to monopolise the business and it is trying to help the Hathway Cable operator which has a business rivalry to the respondent herein granted the following directions :
"i. The respondent (appellant herein) is directed to restore the signals of entire Star Net Work Channels forthwith failing which it will be viewed as a violation of Court directions.
ii. The petitioner (respondent herein) is directed to deposit Rs. 16,84,000/- on or before 11-2-2003 and also deposit the monthly subscription of the January month i.e., up to 29-1-2003 @ Rs. 5,00,000/- (few days or short of the month by 20-2-2003).
iii. The petitioner (respondent herein) is further directed to deposit Rs. 6,00,000/- before this Court by 15th of every month.
iv. The respondent (appellant herein) has to return the cheques before this Court in order to claim the arrears and also, is at liberty to receive monthly subscription deposited in this Court by duly acknowledging the same.
v. The respondent (appellant herein) is further directed not to enhance the monthly subscription in future without the order of this Court."
9. Questioning the said order, the present CMA has been filed by the appellant i.e., the respondent/defendant in the suit.
10. The learned Counsel Sri S. Ravi appearing for the appellant submits that the trial Court erred in holding that the contract between the appellant and the respondent is in existence due to the business gesture extended by the appellant herein though the Memorandum of Understanding was ended on 28-9- 2002. The trial Court grossly erred in granting interim injunction having held that there is default on payment of the agreed subscription within the agreed date and the trial Court also failed to take note of the fact of default in payment of the amounts by the respondent herein. It was also further argued that the Court below has granted the consequential relief sought for in the main suit as an ad interim relief. The Court below committed a grave illegality by granting such relief. Further, the respondent is not entitled for such relief as per Section 37 of the Specific Relief Act. The learned Counsel has also further argued that prima facie, on the facts itself, the Court below opined that the respondent is a 'chronic defaulter' and having come to such a conclusion, it should not have granted interim relief more- so, when the contract is terminated. It is also the further argument that the respondent has to claim damages if it succeeds in the suit. The Court below having come to the conclusion that the respondent is a chronic defaulter should not have extended the time for such payment particularly when it would affect the rights of the appellant. Finally, the learned Counsel submits that the respondent herein failed to make out prima facie case and there is no balance of convenience in its favour to grant mandatory injunction.
11. The learned counsel further submits that the respondent herein failed to comply with the orders of this Court passed on 7-2-2003 by depositing the amounts and again he became defaulter. It is also submitted by the learned counsel that the respondent did not furnish the actual list of sub-operators through whom he has been transmitting the signals to the ultimate consumer and also actual list of the consumers of the service from the respondent and, therefore, the interim directions granted by the trial Court are liable to be vacated.
12. On the other hand, Sri B. Adinarayana Rao, the learned counsel appearing for the respondent submits that the trial Court after taking into consideration of all the facts held that the delay/default in payment of the agreed amount is due to steep increase of the monthly subscription by the appellant arbitrarily and also considering the submission of the respondent herein that it will pay the entire amount if a reasonable opportunity is given to it, and by considering the fact that the appellant has arbitrarily disconnected the transmission of channels, granted interim direction by considering the balance of convenience which lies in favour of the respondent and thus there is no illegality or irregularity in the impugned order.
13. It is to be seen that under Section 39 of the Specific Relief Act, 1963 (for short 'the Act') a mandatory injunction could be granted when it is necessary to compel the performance of certain acts, which the Court is capable of enforcing to prevent the breach of an obligation.
14. In this case, there is a default on the part of the respondent herein in paying the monthly subscription to the appellant as held by the trial Court and moreover the agreed contract period was over and hence the balance of convenience does not lie in the favour of the respondent herein. The trial Court strangely held that the default might be due to abnormal increase of monthly subscription by the appellant. It is pertinent to note that the respondent did not question the said steep increase at any point of time but it took the said plea in this OS. In view of the default in payment of monthly subscription on the part of the respondent as per the terms of the agreement, it has to be held that the balance of convenience does not lie in its favour and hence the trial Court erred in granting directions to the appellant to transmit the channels.
15. Further, this Court directed the respondent herein to deposit the monthly subscription of Rs. 6,00,000/- of the concerned month on or before 15th of every month and the said order has been confirmed by the Supreme Court in Special Leave to Appeal (Civil) No. 3909 of 2003 dated 10-3-2003. The learned counsel for the appellant submits that the respondent even failed to deposit the amount as per the directions of this Court since the IA filed by it before the trial Court for withdrawal of amount of Rs. 18,00,000/- being the subscription fee for the months of May, June and July, 2003 has been returned with an endorsement on 28-7-2003 that only an amount of Rs. 17,00,000/- is available to the credit of the account. The subsequent default on the part of the respondent shows that it is a chronic defaulter and hence the respondent is not entitled for any relief as prayed for.
16. Further, the respondent did not file any list of sub-operators and subscribers as directed by this Court, which was confirmed by the Supreme Court. All these facts would go to show that the respondent is a chronic defaulter and hence the balance of convenience does not lie in its favour to continue the interim direction granted by the trial Court on 5-2-2003 and accordingly it is vacated.
17. The learned counsel for the appellant has placed reliance on the following decisions :
i. Smt. Mayawanti v. Smt. Kaushalya Devi (1990) 2 SCR 350
ii. General Assur. Society v. Chandmull Jain, AIR 1966 Supreme Court 1644
iii. Nandganj Sihori Sugar Co. Ltd. Rae Bareli v. Badrinath Dixit, (1991) 3 SCC 54
iv. Cotton Corporation of India Limited v. United Industrial Bank Limited, AIR 1983 Supreme Court 1272
v. Golden Wine Agencies v. Venedale Distilleries Pvt. Ltd., AIR 1984 Andhra Pradesh 274.
18. The Supreme Court in the case of Smt. Mayawanti (1st cited supra) has held that the specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the Court direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all.
19. In the case on hand, the contract has lapsed as per the terms of the agreement on 1-9-2002 and that no agreement has been entered into after the lapse of the earlier one between the parties and thus it has to be held that no agreement is in force binding the parties.
20. The Supreme Court in the case of Cotton Corporation of India Limited (supra) has held that expression 'injunction' in Section 41(b) is not qualified by an adjective and therefore it would comprehend both interim and perpetual injunction. An interim relief can be granted only in aid of, and as ancillary to the main relief, which may be available to the party on final determination of his rights in a suit or proceedings. If this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted.
21. Thus, it has to be held that the interim relief can be granted only in aid of and as ancillary to the main relief. Thus, if the main relief cannot be granted, the temporary relief of the same nature also cannot be granted.
22. A Division Bench of this Court in the case of M/s. Golden Wine Agencies (cited supra) has observed that the relief in the form of temporary mandatory injunction cannot be granted unless the plaintiff shows a clear right and case of necessity and of extreme hardship and the Courts should exercise its jurisdiction in such cases with greatest possible care and in cases where the remedy of damages is inadequate in the interest of justice. In the case on hand, the respondent did not show a clear right since the binding agreement under which it is claiming the right was lapsed already.
23. In the case of National Auto Impex v. Autocop (India) Pvt. Ltd. (2001) 93 DLT 74, the Delhi High Court has held that as follows, while dealing with a case similar to the one in the issue :
"The discretion to be exercised by the Court under Section 9 is not a discretion which should be exercised in favour of the person who comes with unclean fingers. Petitioner cannot be allowed to exploit the respondent under the garb of an agreement that was determined long back and the plea that unless it receives payment from its customers, it is not in position to make the payment of outstanding bills of the respondent that run into crores is not the concern of the respondent. Petitioner appears to be taking undue advantage of the business gesture shown by the respondent. I do not perceive any reason whatsoever to accede to the request of the petitioner in granting interim injunction or interim protection as prayed for."
24. On the other hand, the learned counsel for respondent placed reliance on the Haji Mohd. Ishaq v. Mohd. Iqbal, (1978) 2 SCC 493 in support of his contention that since the appellant is accepting the monthly subscription from the respondent even after the expiry of the agreement, it amounts that there is an implied contract between them and the same cannot be terminated without any reason. In the above case, the Supreme Court has held as follows (Para 12) :
"The appellants by their conduct of accepting the goods and never repudiating the numerous letters and telegrams of the respondent demanding the money from them on the assertion that the goods were dispatched by the respondent and that the appellants should pay the money, clearly showed that a direct contract, which was an implied contract by conduct, was brought about between them. Whatever might have been the jural relationship between the respondent and the appellants' witness and between that witness and the appellants and in whatever manner he acted as a go-between man between the parties what is clear is that eventually and finally the supply of the goods by the respondent was to the appellants on its own account and not on account of that witness. The appellants clearly and unerringly accepted the goods as such and hence became liable to pay the whole of the price directly to the respondent."
25. In the case on hand, it is an admitted fact that the certain amounts are due to the appellant from the respondent under the agreement and that he is a chronic defaulter. The appellant also brought to the notice of this Court that even after the directions of this Court, the respondent did not deposit the amount in the Court below as directed by this Court, which was later affirmed by the Supreme Court, and when the appellant filed a petition for withdrawal of the amount of Rs. 18,00,000/-, which has to be deposited as per the orders of this Court, the said petition has been returned with an endorsement that only an amount of Rs. 17,00,000/- is lying to its credit. Thus, he is a chronic defaulter. Moreover, the respondent cannot be allowed to exploit the appellant for the business gesture extended by the appellant. Moreover, the business gesture extended by the appellant to the respondent to help it in its business cannot be taken advantage by it and such gesture extended by the appellant cannot be taken contrary to the interest of it. It should be seen that the respondent cannot insist the appellant to use its property in a manner as the respondent likes; and it is the appellant who has to use its property as it likes but not as per the directions and to protect the interest of the respondent.
26. The learned counsel for the respondent submits that the respondent has furnished a list of subscribers pursuant to the directions of this Court, which were confirmed by the Supreme Court. On the other hand, the learned Counsel for the appellant has disputed the said list stating that the respondent did not come out with correct figures and it has filed a list of sub-operators only to show that it has complied with the directions of this Court and of the Supreme Court.
27. Coming to the issue of non-compliance of the orders of this Court, the contention of the appellants is that the respondent/plaintiff failed to comply with the interim orders by paying the monthly fee as well as submitting the list of sub-operators and the subscribers. However, this claim of the appellant is disputed by the respondent in the appeal stating that it has been complying the orders by paying the monthly fee or subscription as ordered, apart from filing the list of sub-operators as well as the subscribers.
28. In order to consider the merits of the above claim, it would be proper to refer to the relevant portions of the orders. The trial Court directed the plaintiff (in IA No. 333 of 2003 in O.S. No. 41 of 2003) to deposit a sum of Rs. 16,84,000/- towards arrears on or before 11-2-2003 and also directed to deposit monthly subscription of January at the rate of Rs. 5.00 lakhs and for the subsequent period at the rate of Rs. 6.00 lakhs by 15th of every month. The above order was modified by this Court by way of interim order, dated 7-2-2003. The relevant portion of the said modified order is as under :-
"We are not inclined to suspend the impugned orders as prayed for in these miscellaneous petitions filed in each of these appeals. But, we direct the first respondent in each of these appeals to deposit the arrears as claimed by the appellant herein. We are informed that insofar as CMA SR 9441 of 2003 (corresponding to CMA No. 844 of 2003) is concerned, the demand by the appellant is Rs. 10,05,520/-. The learned counsel for the first respondent however disputes the same and claims that he is liable to pay only Rs. 4,80,000/- an issue which is required to be decided in the trial of the suit. Therefore, we direct the respondent No. 1 to deposit an amount of Rs. 10,05,520/- towards the arrears payable by the respondent and another amount of Rs. 5,00,000/- as security during the pendency of this appeal.
Coming to appeal CMA SR No. 9488 of 2003 (corresponding to CMA No. 843 of 2003), both the counsel agreed that admittedly there is an amount of Rs. 22,84,000/- as arrears pending from the first respondent. The first respondent will pay the said amount along with another sum of Rs. 11,00,000/- as security during the pendency of the present appeal.
To avoid any further dispute the respondents are directed to make the payment by way of pay order.
The first respondent in each of these appeals is directed to furnish list of the sub- operators through whom the first respondent is transmitting the signals to the ultimate consumer and also actual list of the consumers of the service from the first respondent within a period of ten days; insofar as the amount to be deposited as indicated above.
The appellants are entitled to withdraw the amount representing the arrears due to them but the additional amount indicated in each of the appeals shall remain to the credit of the respective suits pending final orders in these appeals. The first respondent in each of these appeals is directed to pay the monthly subscription of the concerned month on or before 15th of every month."
29. Against the said interim orders of this Court, the respondent/plaintiff carried the matter in appeal before the Apex Court. The Apex Court declined to interfere with the interim orders passed by this Court, while at the same time, directed the plaintiff to furnish the list of sub-operators and subscribers, as directed by this Court in the interim order and the relevant portion of the said order reads as under :
"The petitioners shall furnish the list of sub-operators and subscribers, as directed in the impugned order. In case there is any dispute about the subscribers, that is the matter which would be examined in the main proceedings either in the suit or in the appeal, as the case may be."
30. Now, subsequent to the above proceedings, the appellant has filed CMP Nos. 14960 and 14961 of 2003, seeking direction to the respondent/plaintiff to pay the amounts due in accordance with the orders of this Court as well as to vacate the interim order for non-compliance of the orders of this Court. According to the appellant, the respondent has filed two separate suits against the two appellants viz., Star India Private Limited (hereinafter referred to as 'the Star') and Set Discovery Private Limited. Separate subscription amounts are to be paid, and, in fact, even this Court directed that specific and separate amounts to be deposited and paid with reference to each of the appeals. Instead of depositing the arrears separately with reference to the respective suits, the plaintiff, who is common in both the suits, made a common deposit and even subsequently also made deposits in one suit, claiming that it should be adjusted to the other suit; and the appellant has to make application for the payment of the amounts deposited. According to the appellant, this Court directed to effect the payment by way of pay orders. The said direction is with an intention that the pay order should be handed over to the appellant herein so that they can encash the amount without any delay. Instead of doing so, the respondent/plaintiff, in contravention of the orders of this Court, deposited the amount by way of cheque, which was, in fact, claimed to have been dishonoured for want of sufficient funds. Further, in view of the common deposits made by the respondent/plaintiff with reference to both the suits, the appellants/defendants are not able to get the amounts immediately. In fact, it was claimed that when an application was filed for withdrawal of the amount deposited, it took three months time for the appellant to get the amounts paid to it. In addition, the appellant, in fact, filed additional material papers at the time of hearing, showing that when a petition for withdrawal was filed for an amount of Rs. 18.00 lakhs, representing the subscription fee for the months of May, June and July 2003, the said petition was returned by the office with an endorsement that there was only a sum of Rs. 17.00 lakhs (inclusive of Rs. 11.00 lakhs of security deposit), to the credit of O.S. No. 41 of 2003, which shows that the respondent/plaintiff failed even to deposit the amount for the respective months due, as per the orders of this Court. From this it is very clear that the respondent/plaintiff failed to pay the subscription fee as ordered by this Court. In addition, it is also stated that the respondent/plaintiff failed to submit the list of subscribers as ordered. Hence, the interlocutory order passed by the lower Court is liable to be set aside, even for non-compliance of the interim orders of this Court, which was passed modifying the conditions imposed by the trial Court.
31. A counter has been filed disputing and denying the allegations.
32. At the time of hearing a statement of account has been filed showing the payment of the amounts, as directed by this Court, which is as under :
33. A perusal of the above statement of account shows that this Court directed to deposit the arrears, while at the same time directed to pay the monthly subscription by way of 'pay order'. But contrary to the said direction, the respondent deposited a cheque for the month of February 2003, which is stated to have been even dishonoured and no specific date has been furnished by the respondent, if at all it was encashed, on which date it was encashed. Similarly, though there is a reference as to the payments for every month, in the month of March, there was no deposit and the payment is shown by way of adjustment. Further, though the payment has been shown to have been made for the month of June 2003, but a Memo filed along with the said statement shows that no such payment was in fact made for the month of June 2003 and only a Xerox copy of demand draft was filed and by the Memo the respondent sought to adjust the amounts from the credit of O.S. No. 42 of 2003 to the credit of O.S. No. 41 of 2003 i.e. to the credit of the present appellant with reference to the excess amount of Rs. 4,20,480/-. Though, in fact, the amount payable for that month was Rs. 6.00 lakhs and there is no evidence even as to the transfer of the said amount. But, however, the respondent has shown as if the said amount was paid for the month of June 2003. In addition, the respondent did not even specifically stated in the counter that the amounts were paid every month
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as and when the amounts are due. Further, the appellant filed additional material paper, which is a copy of the I.A., filed in O.S. No. 41 of 2003 before the Chief Judge, CCC, Hyderabad, which was filed for the purpose of withdrawing an amount of Rs. 18.00 lakhs, representing the subscription fee for the months of May, June and July 2003. The said application was returned by the trial Court with an endorsement that there is only an amount of Rs. 17.00 lakhs to the credit of O.S. No. 41 of 2003, which is inclusive of a sum of Rs. 11.00 lakhs paid as security deposit. This shows that there is only a sum of Rs. 6.00 lakhs paid towards the subscription amount for the above three months, which clearly shows that there was a default on the part of the respondent. The above material evidence clearly shows that the appellant failed to comply with the order as to the payment of subscription fee as ordered by this Court. 34. Even with reference to the compliance of other direction by filing a list of the sub-operators as well as the subscribers, except stating that the respondent, has complied with whatever material that is available with it, did not file any material before this Court to satisfy this Court that it has complied with that part of the order. This also shows that the respondent failed to comply the order of this Court, which was even affirmed by the Apex Court. 35. Under the above circumstances, the respondent is not entitled for any indulgence from this Court. 36. It is also the case of the appellant that since the respondent has become a regular defaulter in paying the monthly subscription to it, it has entered into a contract with a third party. All these facts would go to show that the balance of convenience does not lie in favour of the respondent and hence the temporary injunction granted by the trial Court is liable to be vacated. 37. In the result, the CMA is allowed and the order dated 5-2-2003 in IA No. 333 of 2003 in OS No. 41 of 2003 of the learned Chief Judge, City Civil Court, Hyderabad is vacated. No costs. 38. However, it is made clear that the observations made in this order shall be confined for the disposal of this CMA and the trial Court shall not be influenced by any of the observations made in this order 3-9-2003. 39. After the pronouncement of the judgment, learned counsel for the appellant submitted that the appellant may be permitted to withdraw the amounts already deposited in the Court below to the credit of O.S. No. 41 of 2003, on the file of Chief Judge, City Civil Court, Hyderabad, including the amount due till the date of vacation of the interim order passed by this Court. The learned counsel for the Respondent submitted that they have already deposited the entire amount in the Court below. In view of the fact that the Respondent has enjoyed the benefit of the interim order, the appellants are entitled to withdraw the amount as directed by this Court on 7-2-2003 and such withdrawal will be subject to the result of the suit. Appeal allowed.