An injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced.

JUDGMENT

Hiranmay Bhattacharyya, J. - The defendant in a suit for infringement of copyright has preferred the instant first miscellaneous appeal challenging the order no. 1 dated August 20, 2020 passed by the learned District Judge, 24 Parganas (south) at Alipore in Title Suit No. 6 of 2020.

2. The author who is the appellant herein entered into a publishing and copyright agreement with the publisher being the respondent on November 24, 2017. The respondent filed the instant suit alleging illegal termination of the aforesaid agreement by the appellant through e-mail dated June 1, 2020. It was further alleged that the appellant herein through her learned advocate's letter dated July 20, 2020 threatened to institute legal proceedings against the respondent before the appropriate forum. The respondent claims that the appellant herein threatened to publish the books through other publishers which compelled the respondent to pray for an order of injunction restraining the appellant herein from giving any effect to the e-mail dated June 1, 2020 and the letter dated July 20, 2020 by filing an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure.

3. The Learned Trial Judge, by the order impugned, restrained the defendant/appellant herein from taking any steps pursuant to the letter dated June 1, 2020 as well as the letter dated July 20, 2020 till September 25, 2020.

4. Being aggrieved against the aforesaid order, the instant appeal has been preferred.

5. Mr. Saptansu Basu, learned Senior Advocate appearing for the appellant assails the impugned order on the following grounds. Firstly, the principles laid down by the Hon'ble Supreme Court of India in the case of Shiv Kumar Chadha versus Municipal Corporation of Delhi and others, (1993) 3 SCC 161 has not been followed by the learned court below while passing the ex-parte order of injunction.

6. Secondly, no order of injunction can be passed restraining a person from instituting a proceeding before a court of law.

7. Lastly, the respondent may, at best, be entitled to damages in the event the court finds that the notice period as mentioned in the termination letter falls short of the required notice period as per the agreement in question. Mr. Basu relied upon a judgment of the Hon'ble Supreme Court of India in the case of Indian Oil Corporation Ltd. versus Amritsar Gas Service and others, (1991) 1 SCC 533 in support of such submission. Thus, Mr. Basu concludes by submitting that no injunction can be passed restraining the appellant herein from taking further steps pursuant to the e-mail dated June 1, 2020 and the letter dated July 20, 2020.

8. Per contra Mr. Aritra Basu, Learned Advocate for the respondent submitted that the agreement dated November 24, 2017 contains a termination clause which provides that 90 days notice is mandatory before terminating the agreement by the appellant herein. He submitted that since the termination letter has been issued by the appellant herein in violation of the said agreement, the same cannot be given effect to and the learned court below was thus perfectly justified in passing an order of injunction. He further submitted that Section 42 of the Specific Relief Act empowers the court to grant an injunction directing the appellant to perform the negative agreement by issuing a 90 clear days' notice for termination of the agreement in the instant case even if the court is unable to compel the specific performance of the agreement. In other words, the court can direct the appellant to comply with the mandatory requirement of 90 days' notice as stipulated in the agreement for terminating the same.

9. Mr. Basu, the Learned Advocate for the respondent relies upon the judgment of Delhi High Court in the case of KSL & Industries Ltd. versus National Textiles Corporation Limited in O.M.P. 581/2010 decided on 14.08.2012 as well as the judgment of the Madras High Court in the case of Base International Holdings versus Pallav