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E.M.D. Cohen Vs. Allan Wilkie - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.215
AppellantE.M.D. Cohen
RespondentAllan Wilkie
Excerpt:
contract act (ix of 1872), section 27 - restraint of trade--theatrical party--agreement not to play anywhere else-injunction--specific relif act (i of 1877), section 57. - .....company known as allan wilkie co. the present application seeks to restrain and deter mr. wilkie by an injunction until the termination of the suit from playing: in any theatre in calcutta or any other town under his own or any other management other than the plaintiff's management until after the termination of the tour and the return of the defendant and his company to england as provided for in clause 9 of the agreement mentioned in the petition. the rest of the application refers to an application for attachment before judgment. mr. cohen, by an agreement dated the 21st june last year, engaged mr. wilkie and his company to come out to the east for a certain tour. there is no doubt to ay mind that the expense of bringing mr. wilkie and his company out was borne by mr. cohen.....
Judgment:

Fletcher, J.

1. This is an application by Mr. Elias Moses Cohen, proprietor of the Grand Opera House, Calcutta, against Mr. Allan Wilkie of the Empire Theatre, Calcutta, an actor and proprietor of a theatrical company known as Allan Wilkie Co. The present application seeks to restrain and deter Mr. Wilkie by an injunction until the termination of the suit from playing: in any theatre in Calcutta or any other town under his own or any other management other than the plaintiff's management until after the termination of the tour and the return of the defendant and his company to England as provided for in Clause 9 of the agreement mentioned in the petition. The rest of the application refers to an application for attachment before judgment. Mr. Cohen, by an agreement dated the 21st June last year, engaged Mr. Wilkie and his company to come out to the East for a certain tour. There is no doubt to ay mind that the expense of bringing Mr. Wilkie and his company out was borne by Mr. Cohen and although it may be that that money has been re-paid, the entire financing of the company was undertaken and the advances made by Mr. Cohen. It is not denied now that the tour has come to an end and the only question that I have to consider is whether the 9th Clause in the agreement can be enforced by an injunction. The 9th Clause is in these terms: 'The said Allan Wilkie undertakes not to play at any other theatre in Calcutta, or in any other town under his own or under any other management until after the termination of the tour and the return of himself and the company to England in pursuance of the agreement.' Now, in India the law relating to contracts in restraint of trade is codified in the 27th section of the Indian Contract Act. That section provides that every agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. It is pretty obvious that in the present case in the English Courts, Clause 9 of the agreement would be enforced by injunction on the ground (1) that the clause was considered by the parties to be reasonably necessary for the protection of the covenantee and (2) on the ground that the defendant had had all the benefits under the agreement. But in India one has simply got to look to see what the Legislature has provided in the Statute and Section 27 of the Contract Act clearly provides that a contract in respect of trade by which a man is restrained from exercising his lawful profession, trade or business, is void, and the words do, not mean that he should be absolutely restrained. Then, Mr. Sinha says this contract is really in the nature of the contract mentioned in Section 57 of the Specific Relief Act, That is not so. The contract provided for in Section 57 of the Specific Relief Act is where one party having undertaken to employ another, can obtain an injunction to restrain the other from working for any other person other than the one he has agreed to work for. It is not suggested in this case that if Mr. Wilkie be restrained by injunction, then he has got the right to perform in Mr. Cohen's theatre or that Mr. Cohen under the terms of the agreement is bound to employ him. It seems to me that this Clause 9 in the contract is under the terms of Section 27 of the Indian Contract Act void as being in restraint of trade. That being so, the present application, in so far as it seeks for an injunction to restrain Mr. Wilkie from performing until he has gone through the operation of going back from India to England and then starting again from England to India, fails. The other part of the application seeking to attach Mr. Wilkie's property has not been pressed. The present application, therefore, fails and must be dismissed with costs.


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