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Saraswati Music College Vs. Annapoorna Advertising P. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberInterim Application Appeal No. 1634 of 1986 and Suit No. 525 of 1986
Judge
Reported in1986RLR312
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rule 1
AppellantSaraswati Music College
RespondentAnnapoorna Advertising P. Ltd.
Advocates: R.K. Anand,; S.P. Sharma,; Arun Mohan and;
Excerpt:
the case debated on the application filed under order 39 rules 1 and 2 of the civil procedure code, 1908, for grant of temporary injunction - it was clear in the letter that the plaintiff had not been appointed as an exclusive agent for holding show at delhi - the said letter did not constitute a contract and it was not signed by the parties - in the absence of prima facie case and other question as to balance of convenience and irreparable loss, it was ruled that application was liable to be dismissed - - on 12th march 1986 at jawahar lal nehru stadium and the aforesaid coverage as also the above mentioned news item could not possibly escape notice of the plaintiff and the plaintiff, thus, could have moved into the matter earlier well in time......in india including delhi and instead only the month of february 1986 had been intimated by boney-m-group manager defendant no. 3 to the plaintiff vide letter dated 5.12.1985 which was followed by another letter dated 7.12.1985 sent by plaintiff's manager defendant no. 1 informing the plaintiff that the group had tentatively agreed to cover india between 26.1.1986 and 15.2.1986 for musical performances whereas, on the other hand, the dates 12th and 1.3th march. 1986 have been specified for their performances at jawahar lal nehru stadium, new delhi by the defendants and news item to this effect finds mention in the columns of the issue dated 26.2.1986 of the english dailies indian express, national herald and patriot which fact further goes to show that the action on the part of the.....
Judgment:

Jagdish Chandra, J.

(1) In this suit brought by the plaintiff against the defendant for the grant of permanent injunction seeking to restrain the latter from committing bread! of the agreement dated 15.6.1984 as also from organisation, managing and performing music concert by overseas music group known as BONEY-M Group at various places in India including Delhi, the plaintiff has moved the application under order 39 Rules 1 and 2 of the Civil Procedure Code for the grant of a temporary injunction restraining the defendants from performing the musical concerts of BONEY-M till the disposal of the suit. Deft. No. M/s Annapooroa Pvt. Ltd., Bombay through Ravi lyer are the managers of the plaintiff appointed as such vide agreement dated 15.6.1984 for the purpose of organising and conducting the music to be performed by BONEY-M-GROUP at Delhi, Bombay, Calcutta, Ahmedabad, Madras, Goa and Bangalore, for consideration. Defendart No. 3 Barrucci Leisure Enterprises Ltd., London through Bryan Milter Director International Promotions are the managers of BONEY-M-GROUP. The members of BONY- M-GROUP consists of defendants 4 to 1/. It is asserted that the plaintiff had entered into an agreement through defendant No 1 Ravi Iyer with BONEY-M-GROUP through its manager defendant No. 3 Bryan Miller where by BONEY-M-GROUP was to perform music concerts at various places in India during Nov. 1984 but which programme could not be carried out due to the unforeseen death of Mrs. Indira Gandhi and the programme had to be postponed. Subsequently vide letter dated 17.7.1984 deft. 3 manager of BONEY- M-GROUP informed the plaintiff by way of confirmation that BONEY-M-GROUP would undertake the concert tour of India from 19.10.1984 to 20.11.1984. Another letter (undated) was received by the plaintiff from deft. 3 manager of BONEY-M-GROUP that the tour would be undertaken by BONEY-M- Group from 15.3.1985 onwards pursuant to contract and that according to the tour programme Delhi show would be held on 16.3.1985 and at other places during March and April 1985. Thereafter vide letter dated 5.12.1985 Boney M-GROUP through its Manager defendant No. 3 informed the plaintiff that they would be fixing some dates for holding musical performances in Feb. 1986 where after defendant No. 1 manager of plaintiff informed vide letter dated 7.12.1985 that BONEY-M- Group had tentatively agreed to come to India between 26.1.1986 to 15.2.1986 for musical performances and for the first time in this letter defendant No. 1 further called upon the plaintiff to arrange for the requisite bank guaiantee at the earliest assuring further that the bank guarantee could be released on the arrival of the troupe in India. It is asserted that on the receipt of this letter the plaintiff informed its manager defendant No. 1 to organise the tour in accordance with the contract dated 15.6.1984 entered into between the plaintiff on the one hand and its manager defendant No.1 on the other, pointing out that there was no provision for any bank guarantee in the aforesaid agreement dated 15.6.1984 and further that there was no purpose of giving any such bank guarantee.

(2) The plaintiff has also asserted that vide letter dated 11.1.1984 the Ministry of Finance, Govt. of India had granted permission to the plaintiff to organise the performance of the musical concerts through BONEY-M-GROUP subject to certain conditions. The Reserve Bank of India had also vide letter dated 8.10.1984 granted permission to plaintiffs for playing local hospitality and granted exchange of Rs. 16 lacs to the plaintiff for hosting the musical concert through BONEY-M-GROUP.

(3) The plaintiff has alleged to have incurred huge expenses in lacs of rupees by going personally at various places abroad & in India and further that Ravi lyer of defend No. 1 (manager of the plaintiff) had also similarly visited various places abroad and in India on behalf of the plaintiff and further that the BONEY-M-GROUP technicians had come to India in October 1985 and were made to stay in Hotel Hyatt Regency, New Delhi at the expense of the plaintiff who also met their expenses for their stay at other places. Huge amount is also alleged to have been spent by the plaintiff in lacs of rupees in publicity abroad.

(4) It is asserted that the plaintiff was surprised to find an advertisement in the paper dated 7.3.1986 giving publicity that BONEY- M-GROUP would be performing their musical concerts at various place in India on various dates and that the date for this purpose at Delhi was fixed as 12.3. '986 and that the said programme was being organized by defendant No. 2 'SUN PUBLICATION' for Lok Kalyan Samiti Eye Hospital. The plaintiff alleges that that the defendants have committed breach of contract entered into by them with the plaintiff and that they, in collusion with defendant No. l managers of plaintiff', had cheated the plaintiff. It is averred that the plaintiff would suffer irreparable loss and injury if the temporary injunction, as prayed for, is not granted.

(5) Only defendants 1 and 2 were served in respect of this temporary injunction application. Reply was filled by defendant No. 1 which was also adopted by defendant No. 2 without filing any formal reply. They contest this application asserting that all the tickets numbering approximately 50,000 have already been sold and that it is not in public interest that an injunction be granted and further that the action on the part of the plaintiff seeking temporary injunction was a belated one as advertisements had been appearing for the past about two weeks.

(6) An agreement dated 2.1.1986 has been entered into between Lok Kalyan Samiti Eye Hospital with defendant no. 1, Annapoorna Advertising Pvt. Ltd. whereby the former appointed the latter as its managers for the purpose of organising and conducting the musical performances by BONEY-M-GROUP, to be held at Delhi, Bombay, Calcutta, Madras, Bangalorc and Goa etc. and this agreement is similar to the one which the plaintiff had entered into with defendant no. 1 much earlier on 15-6-1984.

(7) First of all it is to be seen whether the plaintiff has a prima facie case or not against the defendants. There is a letter dated 13.5.84 sent by Bryan Miller defendant no. 3 manager of BONEY-M-GROUP to the secretary of the plaintiff according to which the plaintiff was appointed as 'non-exclusive agent' in connection with arranging concert appearances in various cities in India by BONEY-M-GROUP for the period October/ November 1984. It was further made clear in in this letter that this letter did not constitute a contract and further that should a contract not be fully signed by 30-6-1984 by the parties, this offer would be deemed to have expired. It would, thus appear that the plaintiff had not been appointed as the exclusive agent of such performances by BONEY-M-GKOUP necessarily meaning thereby that other agents for this purpose could also be appointed by BONEY-M-GROUP. In none of the letters/ telex relied upon by the plaintiff there is made any mention that the plaintiff has been appointed as the exclusive agent of BONEY-M- Group for arranging and organising the musical concerts in various cities in India including Delhi. From the very nature of such musical concerts it is possible to appoint more than one agents as such performance can be done at various places on various dates and at different times, without offending the rights of several agents which could be appointed by BONEY-M-GROUP, and thus, it would appear that unless and until there is a negative covenant in a particular contract debarring such performances by BONEY-M-GROUP at the behest and instance of another, the question of the grant of temporary injunction daes not arise. In this case no fixed dates for 1986 had been intimated by BONEY-M- Group to the plaintiff and agreed upon by the plaintiff whereon BONEY-M-GROUP could display its shows at different places in India including Delhi and instead only the month of February 1986 had been intimated by BONEY-M-GROUP manager defendant No. 3 to the plaintiff vide letter dated 5.12.1985 which was followed by another letter dated 7.12.1985 sent by plaintiff's manager defendant No. 1 informing the plaintiff that the Group had tentatively agreed to cover India between 26.1.1986 and 15.2.1986 for musical performances whereas, on the other hand, the dates 12th and 1.3th March. 1986 have been specified for their performances at jawahar Lal Nehru Stadium, New Delhi by the defendants and news item to this effect finds mention in the columns of the issue dated 26.2.1986 of the English Dailies Indian Express, National Herald and Patriot which fact further goes to show that the action on the part of the plaintiff in bringing this suit and seeking temporary injunction on 10.3.86 against the defendants was a belated one and during all this period the defendants have made all the arrangements for the holding of the shows at Delhi and have also sold a large number (numbering about 50,000) of tickets to the public. The issue dated 4.3.1986 of the English Daily Statesman also covers about 2/3rd of its page No. 6 regarding the advertisement of defendant No. 2 regarding the BONEY-M-GROUP show at 6.30 P.M. on 12th March 1986 at Jawahar Lal Nehru Stadium and the aforesaid coverage as also the above mentioned news item could not possibly escape notice of the plaintiff and the plaintiff, thus, could have moved into the matter earlier well in time.

(8) In the absence of the prima facie case in favor of the plaintiff the remaining questions pertaining to balance of convenience and irreparable loss do not arise. Application dismissed.


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