M/S BEST SELLERS RETAIL (INDIA) PVT. LTD.versusM/S ADITYA BIRLA NUVO LTD. & ORS.

                          [2012] 5 S.C.R. 834


A         MIS BEST SELLERS RETAIL (INDIA) PVT. LTD.
                                    v.
              MIS ADITYA BIRLA NUVO LTD. & ORS.
                (CivilAppeal Nos.4313-14 of 2012)

                             MAY 08, 2012
B
         [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

         Code of Civil Procedure, 1908 - Order 39 Rules 1 and 2
    rlw s. 151 -Temporary injunction - Respondent no. 1 filed suit
C   for specific performance of agreement in respect of property
    and in the alternative for damages for expenses and losses
    if specific performance of the agreement was refused by the
    Court - Along with the suit, respondent no. 1 also filed
    application for temporary injunction restraining the defendants
D   from leasing, sub-leasing, alienating or encumbf;ring the
    property in any manner pending disposal of the suit - Trial
    court allowed the application for temporary injunction - Order
    upheld by High Court - Held: While passing an interim order
    of injunction under Order 39 Rules 1 and 2 CPC, the Court
E   is required to consider (i) whether there is a prima facie case
    in favour of the plaintiff; (ii) whether the balance of
    convenience is in favour of passing the order of injunction;
    and (iii) whether the plaintiff will suffer irreparable injury if an
    order of injunction would not be passed as prayed for - In the
F   instant case, the trial court and the High Court were right in
    coming to the conclusion that there was a prima facie case
    in favour of respondent no. 1 - However, even where prima
    facie case is in favour of the plaintiff, Courts ought to refuse
    temporary injunction if injury suffered by plaintiff on account
G   of refusal of temporary injunction was not irreparable - In the
    present case, respondent no. 1 itself had claimed alternative
    relief of damages if relief for specific performance was to be
    refused by the Court - If temporary injunction restraining the
    defendants from allowing, leasing, sub-leasing or

H                                  834
 BEST SELLERS RETAIL (INDIA) PVT. LTD. v. ADITYA 835
           BIRLA NUVO LTD. & ORS.
encumbering the suit property was not granted, and               A
respondent no. 1 ultimately succeeded in the suit, it would be
entitled to damages claimed and proved before the court -
Respondent no. 1 will not suffer irreparable injury - Order of
temporary injunction accordingly set aside - Specific Relief
Act, 1963 - s.37.                                                B

      In the year 2005, respondent no.1 had entered into
 an agreement with Liberty Agencies whereunder Liberty
Agencies agreed to sell the products of respondent no.1
 in the property in question and also agreed to retain the       C
 possession of the property until the expiry of the term of
agreement and Liberty Agencies was not to sell any other
articles or goods other than that supplied by respondent
no.1. Under the agreement, Liberty Agencies was entitled
to a fixed commission per month. Thereafter, respondent
no.1 notified to Liberty Agencies various breaches of the        D
terms and conditions of the agreement but Liberty
Agencies did not set right the breaches. As a result,
respondent no.1 suffered huge financial losses.
Respondent no.1 issued a legal notice calling upon
Liberty Agencies to comply with the terms of the                 E
agreement. Liberty Agencies, however, sent a letter dated
26-2-2010 claiming that the constitution of the partnership
firm has changed and that its partner A.C. Thirumalaraj
had retired and that A.C. Thirumalaraj as the owner of the
property had terminated the tenancy of the property in           F
favour of Liberty Agencies.

     Respondent no.1 filed suit for specific performance
of the agreement and in the alternative for damages for
expenses and losses if the specific performance of the           G
agreement was refused by the Court. Along with the suit,
respondent no.1 also filed an application under Order 39
Rules 1 and 2 read with Section 151 of CPC praying for
a temporary injunction restraining the defendants from
leasing, sub-leasing, alienating or encumbering the              H
    836      SUPREME COURT REPORTS              [2012] 5 S.C.R.


A property in any manner pending disposal of the suit. The
  trial court allowed the application for temporary injunction
  and restrained Liberty Agencies and its partners
  including A.C. Thirumalaraj from leasing, sub-leasing,
  alienating or encumbering the property in any manner
s pending disposal of the suit.
         Aggrieved, A.C. Thirumalaraj filed a Miscellaneous
    Appeal under Order 43 Rule 1 of the CPC against the
    order of temporary injunction before the High Court.
    While the Miscellaneous Appeal was pending, it was
C   brought to the notice of the High Court in an I.A. that in
    spite of the temporary injunction granted in favour of
    respondent no.1, A.C. Thirumalaraj and Best Sellers Retail
    (I) Pvt. Ltd., were opening a shop in the suit schedule
    property in the name of 'Jack & Jones' and by an interim
D   order the High Court restrained Best Sellers (I) Pvt. Ltd.
    from carrying on business in the suit schedule property
    until further orders of the High Court. Best Sellers Retail
    (I) Pvt. Ltd. then filed an application for vacating the
    interim order. By the impugned judgment, the High Court
E   dismissed the Miscellaneous Appeal and rejected the
    application for vacating the interim order but directed
    respondent no.1 to give an undertaking to the trial court
    that in case respondent no.1 fails in the suit, it will
    compensate the loss to A.C. Thirumalaraj and Best
F   Sellers Retail (I) Pvt. Ltd. for not using the suit schedule
    property.

       Aggrieved, A.C. Thirumalaraj and Best Sellers (I) Pvt.
  Ltd. filed the instant appeals contending that the Courts
G below ought not to have granted temporary injunction in
  favour of plaintiff-respondent no.1.

          Ailowing the appeals, the Court

     HELD:1.1. Section 37 of the Specific Relief Act, 1963
H makes it clear that temporary injunctions are to be
BEST SELLERS RETAIL (INDIA) PVT. LTD. v. ADITYA 837
          BIRLA NUVO LTD. & ORS.
regulated by the CPC and not by the provisions of the          A
Specific Relief Act, 1963. In fact, the application for
temporary injunction of respondent no.1 before the trial
court is under the provisions of Order 39 Rules 1 and 2
read with Section 151 of the CPC. It is well established
that while passing an interim order of injunction under        B
Order 39 Rules 1 and 2 CPC, the Court is required to
consider (i) whether there is a prima facie case in favour
of the plaintiff; (ii) whether the balance of convenience is
in favour of passing the order of injunction; and (iii)
whether the plaintiff will suffer irreparable injury if an     c
order of injunction would not be passed as prayed for.
[Para 12] [846-C-F]

     1.2. In the instant case, on a reading of clause B-2 of
the agreement, it is found that Liberty Agencies had given
a warranty that the suit schedule property was owned by D
it and that it will retain the possession of the suit schedule
property until the expiry of the agreement. Clause D of
the agreement clearly stipulated that the duration of the
agreement shall be for a period of twelve years from the
date of the agreement unless terminated in accordance E
with the provisions of the agreement. Clause E-2 further
provides that respondent no.1 and not Liberty Agencies
could terminate the agreement by giving a notice of not
less than three months after the end of six years from the
date of the agreement and respondent no.1 had not F
terminated the agreement under this clause. Before the
expiry of six years from the date of the agreement, Liberty
Agencies sent the letter dated 26.02.2010 to respondent
No.1 committing a breach of clause B-2 of the agreement
which provided that Liberty Agencies will retain G
possession of the suit schedule property until the expiry
of the agreement. This was the breach of the agreement
which was sought to be prevented by the trial court by
an order of temporary injunction. The trial court and the
High Court were thus right in coming to the conclusion H
    838     SUPREME COURT REPORTS                [2012] 5 S.C.R.

A that respondent no.1 had a prima facie case. (Para 13]
  (846-G-H; 847-A-D]

         Kishoresinh Ratansinh Jadeja v. Maruti Corporation &
    Ors. (2009) 11 sec 229: 2009 (5) SCR 527 - relied on.
8       Indian Oil Corporation Ltd. v. Amritsar Gas Service & Ors.
    (1991) 1 SCC 533: 1990 (3) Suppl. SCR 196; Percept
    D'Mark (India) (P) Ltd. v. Zaheer Khan & Anr. (2006) 4 SCC
    227: 2006 (3) SCR 146 - cited.

c       Page One Records Ltd. v. Britton (1968) 1 WLR 157:
    (1967) 3 All ER 822 - cited.

      2.1. Yet, the settled principle of law is that even where
  prima facie case is in favour of the plaintiff, the Court will
  refuse temporary injunction if the injury suffered by the
D plaintiff on account of refusal of temporary injunction was
  not irreparable. (Para 14] (847-D-E]

       2.2. In the present case, respondent no.1 itself had
  claimed in the plaint the alternative relief of damages to
E the tune of Rs.20, 12,44,398/- if the relief for specific
  performance was to be refused by the Court. The
  statement of damages claimed by respondent no.1 in the
  plaint show that respondent no.1 itself calculated a
  projected loss of profit for the balance seven year term
F of the agreement as Rs.10,31,00,000/- and has also
  assessed loss of goodwill at Rs.2,00,00,000/- besides the
  loss of Rs.6,00,00,000/- in relocating the store to another
  place in Brigade Road, Bangalore. [Paras 15, 16] [847-H;
  848-A; F-H]
G      2.3. Despite this claim towards damages made by
  respondent no.1 in the plaint, the trial court has held that
  if the temporary injunction as sought for is not granted,
  Liberty Agencies may lease or sub-lease the suit
  schedule property or create third party interest over the
H same and in such an event, there will be multiplicity of
 BEST SELLERS RETAIL (INDIA) PVT. LTD. v. ADITYA 839
           BIRLA NUVO LTD. & ORS.
 proceedings and thereby respondent no.1 will be put to          A
 hardship and mental agony, which cannot be
 compensated in terms of money. Respondent no.1 is a
 limited company carrying on the business of readymade
garments and one fails to appreciate what mental agony
and hardship it will suffer except financial losses. The         B
 High Court has similarly held in the impugned judgment
that if the premises is let out, respondent no.1 will be put
to hardship and the relief claimed would be frustrated
and, therefore, it is proper to grant injunction and the trial
court has rightly granted injunction restraining the             C
partners of Liberty Agencies from alienating, leasing, sub-
leasing or encumbering the property till the disposal of
the suit. The High Court lost sight of the fact that if the
temporary injunction restraining Liberty Agencies and its
partners from allowing, leasing, sub-leasing or                  D
encumbering the suit schedule property was not granted,
and respondent no.1 ultimately succeeded in the suit, it
would be entitled to damages claimed and proved before
the court. In other words, respondent no.1 will not suffer
irreparable injury. [Para 17] [849-A-F]
                                                                 E·
   Dalpat Kumar & Anr. v. Prah/ad Singh & Ors. (1992) 1
sec 719: 1991 (3) Suppl. SCR 472 - relied on.
    The Attorney-General vs. Hallett 153 ER 1316: (1857)
16 M. & W.569 - referred to.
                                                                 F
      3. The order of temporary injunction passed by the
trial court as well as the impugned judgment of the High
Court are set aside. [Para 18] [849-G-H]

                    Case Law Reference:                          G
    2009 (5) SCR 527            relied on          Para 6
    1990 (3) Suppl. SCR 196 cited                  Para 8
    2006 (3) SCR 146            cited              Para 8
                                                                 H
    840      SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A         (1967) 3 All ER 822        cited               Para 8
          1991 (3) Suppl. SCR 472 relied on              Para 14
          (1857) 16 M. & W.569       referred to         Para 17

B       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4313-14 of 2012 etc.

        From the Judgment & Order dated 25.08.2010 of the High
    Court of Karnataka in M.F.A. No. 4060 of 2010.

c                                WITH
    C.A. No. 4315 of 2012.

         Altaf Ahmed, A.K. Ganguly, Vikram Gurunath, Balaji
    Srinivasan, Jaikriti S. Jadeja, G. Vikram, S. Srinivasan for the
o   Appellant.

        K.K. Venugopal, Harish V. Shankar, Gopal
    Shankaranarayanan, Rajesh D.M., Jyothi V.K. Ansar Ahmad
    Chaudhary, Madhusmita Bora for the Respondents.

E         The Judgment of the Court was delivered by

          A.K. PATNAIK, J. 1. Leave granted.

      2. These are appeals by way of special leave under Article
  136 of the Constitution of India against the judgment and order
F dated 25.08.2010 of the High Court of Karnataka in MFA
  No.4060 of 2010 and in M.C. No12036 of 2010 and in M.C.
  No.12036 of 2010.
       3. The relevant facts briefly are that Aditya Birla Nuvo Ltd.,
G respondent no.1 in both the appeals, filed a suit O.S. No.1533
  of 2010 against Liberty Agencies, a partnership firm and its
  partners, in the Court of the City Civil Judge at Bangalore. The
  case of the respondent no.1 in the plaint was as follows: The
  respondent no.1 was engaged in the business of readymade
H garments and accessories under various reputed brand names
BEST SELLERS RETAIL (INDIA) PVT. LTD. v. ADITYA 841
   BIRLA NUVO LTD. & ORS. [A.K. PATNAIK, J.]
and in the year 1995 had appointed Liberty Agencies as an A
agent to conduct its business of readymade garments and
accessories with the reputed brand name 'Louis Philippe'.
Thereafter, on 02.03.2005 respondent no.1 entered into a fresh
agreement with Liberty Agencies under which Liberty Agencies
agreed to sell the products of the respondent no.1 in the suit B
schedule property and also agreed to retain the possession of
the suit schedule property until the expiry of the term of
agreement and Liberty Agencies was not to sell any other
articles or goods other than that supplied by the respondent
no.1. Under the agreement dated 02.03.2005 (for short 'the C
agreement'), Liberty Agencies was entitled to a fixed
commission of Rs.7,50,000/- per month and by an addendum
dated 01.07.2008 the fixed commission payable to Liberty
Agencies was increased to Rs.9,62,500/-. Thereafter, the
respondent no.1 notified to Liberty Agencies various breaches D
of the terms and conditions of the agreement but Liberty
Agencies did not set right the breaches. As a result, the
respondent no.1 suffered huge financial losses. The respondent
no.1 issued a legal notice on 06.02.2010 calling upon Liberty
Agencies to comply with the terms of the agreement. Liberty
Agencies, however, sent a letter dated 26.02.2010 claiming that E
the constitution of tr.e partnership firm has changed and that
its partner A.C. Thirumalaraj had retired and that A.C.
Thirumalaraj as the owner of the suit schedule property had
terminated the tenancy of the suit schedule property in favour
of Liberty Agencies and initiated a collusive eviction proceeding F
with an intention to defeat the claim of the respondent no.1. The
respondent no.1 thus prayed for specific performance of the
agreement and in the alternative for damages for expenses and
losses amounting to Rs.20, 12,44,398/- if the specific
performance of the agreement was refused by the Court.            G
     4. Along with the suit, respondent no.1 also filed an
application under Order 39 Rules 1 and 2 read with Section
151 of the Code of Civil Procedure (for short 'the CPC') praying
for a temporary injunction restraining the defendants from
                                                                   H
    842      SUPREME COURT REPORTS                  [2012) 5 S.C.R.


A leasing, sub-leasing, alienating or encumbering the suit
  schedule property in any manner pending disposal of the suit.
  Liberty Agencies and A.C. Thirumalaraj filed their objections
  to the application for temporary injunction and stated, inter alia
  in their objections that the possession of the suit schedule
B property had been delivered to Best Sellers Retail (I) Pvt. Ltd.
  The Additional City Civil Judge heard the parties and by order
  dated 24.04.2010 allowed the application for temporary
  injunction and restrained Liberty Agencies and its partners
  including A.C. Thirumalaraj from leasing, sub-leasing, alienating
C or encumbering the suit schedule property in any manner
  pending disposal of the suit.

         5. Aggrieved, A.C. Thirumalaraj filed a Miscejlaneous
    Appeal under Order 43 Rule 1 of the CPC against the order of
    temporary injunction before the High Court. While the
D   Miscellaneous Appeal was pending, it was brought to the notice
    of the High Court in I.A. No.1 of 2010 that in spite of the
    temporary injunction granted in favour of the respondent no.1,
    A.C. Thirumalaraj and Best Sellers Retail (I) Pvt. Ltd., were
    opening a shop in the suit schedule property in the name of
E   'Jack & Jones' and by an order dated 16.07.2010 the High
    Co~rt restrained Best Sellers (I) Pvt. Ltd. from carrying on
    business in the suit schedule property until further orders of the
    High Court. Best Sellers Retail (I) Pvt. ltd. then filed an
    application M.C. No.12036 of 2010 for vacating the interim
F   order dated 16.07.2010. By the impugned judgment, however,
    the High Court dismissed the Miscellaneous Appeal and
    rejected the appeal for vacating the interim order but directed
    the respondent no.1 to give an undertaking to the trial court that
    in case respondent no.1 fails in the suit, it will compensate the
G   loss to A.C. Thirumalaraj and Best Sellers Retail (I) Pvt. Ltd.
    for not using the suit schedule property. Aggrieved, A.C.
    Thirumalaraj and Best Sellers (I) Pvt. Ltd. have filed these Civil
    Appeals.
          6. Mr. Altaf Ahmed and Mr. A.K. Ganguly, learned senior
H
 BEST SELLERS RETAIL (INDIA) PVT. LTD. v. ADITYA 843
    BIRLA NUVO LTD. & ORS. [A.K. PATNAIK, J.]
counsel appearing for the two appellants, submitted relying on            A
the decision of this Court in Kishoresinh Ratansinh Jadeja v.
Maruti Corporation & Ors. [(2009) 11 SCC 229] that while
passing an order of temporary injunction under Order 39 Rules
1 and 2 CPC, the Court is to consider (i) whether the plaintiff
has a prima facie case; (ii) whether balance of convenience is            B
in favour of the plaintiff; and (iii) whether the plaintiff will suffer
irreparable loss and injury if an order of injunction was not
passed. They submitted that the respondent no.1 itself has
claimed damages of Rs.20, 12,44,398/- as alternative relief in
the event the suit for specific performance of the contract is not        c
decreed. They argued that as the plaintiff itself had made a
claim for damages for the alleged breach of the agreement by
the defendants, the Court should not have granted the temporary
injunction in favour of the plaintiff.
     7. Learned counsel for the appellants further submitted that         D
 Section 14(1) of the Specific Relief Act, 1963 provides in
clause (b) that a contract which runs into such minute or
numerous details or which is so dependent on the personal
qualifications or volition of the parties, or otherwise from its
 nature is such, that the court cannot enforce specific                   E
performance of its material terms, such a contract cannot be
specifically enforced. They submitted that similarly Section
14(1) in clause (d) provides that a contract, the performance
which involves the performance of a continuous duty which the
court cannot supervise, is a contract which cannot be                     F
specifically enforced. They submitted that the agreement
between Liberty Agencies and respondent no.1 is a contract
of agency and is covered under clauses (b) and (d) of Section
14(l) bf the Specific Relief Act, 1963 and is one which cannot
be specifically enforced. They submitted that Section 14(1) of            G
the Specific Relief Act, 1963 in clause (c) further provides that
a contract which is in its nature determinable cannot be
specifically enforced. They argued that' on completion of six
years from the date of the agreement, Liberty Agencies could
terminate the agreement and the six years period had expired
                                                                          H
    844      SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A   in the year 2011 and hence the Court cannot specifically
    enforce the contract. They submitted that Section 41 (e) of the
    Specific Relief Act, 1963 clearly provides that an injunction
    cannot be granted to prevent breach of a contract, the
    performance of which would not be enforced.
B
       8. Learned counsel for the appellants cited the decision
  in Indian Oil Corporation Ltd. v. Amritsar Gas Service & Ors.
  [(1991) 1 SCC 533] in which this Court has held that a contract
  which is in its nature determinable cannot be enforced by the
  Court. They also cited the decision in Percept D'Mark (India)
C (P) Ltd. v. Zaheer Khan & Anr. [(2006) 4 SCC 227] in which
  this Court has held relying on the judgment of the Chancery
  Division in Page One Records Ltd. v. Britton [(1968) 1 WLR
  157: (1967) 3 All ER 822], that where the totality of the
  obligations between the parties give rise to a fiduciary
D relationship injunction would not be granted because the
  performance of the duties imposed on the party in the fiduciary
  relationship could not be enforced at the instance of the other
  party.

E        9. Learned counsel for the appellants further submitted that
  the agreement between Liberty Agencies and the respondent
  no.1 was an agency agreement and it did not create any interest
  whatsoever in the suit schedule property and, therefore, the
  respondent no.1 was not entitled to any injunction restraining
  the owner of the suit schedule property from dealing with the
F property in any manner with a third party. They submitted that
  in any case since the defendants had clearly stated in their
  objections to the application for temporary injunction that
  possession of the suit schedule property had already been
  delivered to a third party, Best Sellers Retail (I) Pvt. Ltd., the
G trial court should not have granted any injunction without the third
  party being impleaded as a defendant. Learned counsel for the
  appellants submitted that the interest of the third party has been
  totally ignored by the trial court and the High Court and this is
  a fit case in which the order of temporary injunction should be
H set aside.
BEST SELLERS RETAIL (INDIA) PVT. LTD. v. ADITYA 845
   BIRLA NUVO LTD. & ORS. [A.K. PATNAIK, J.]
       10. Mr. K. K. Venugopal, learned senior counsel appearing    A
for the respondent no.1, on other hand, submitted that under
clause B-2 of the agreement, Liberty Agencies had given a
warranty that the suit schedule property is owned by it and that
it will retain possession of the suit schedule property until the
expiry of the agreement. He submitted that under clause D of        B
the agreement the duration of the agreement was for a period
of twelve years from the date of the agreement and this period
was to expire in 2017 and, therefore, it is not correct, as has
been contended by the learned counsel for the appellants, that
the period of the agreement has expired. He argued that under       C
clause E-2 of the agreement only the respondent no.1 company
had the right to terminate the agreement by giving a written
notice of not less than three months after the end of six years
from the date of the agreement and hence Liberty Agencies
had no right to terminate the agreement. He submitted that no       D
contention can, therefore, be raised on behalf of Liberty
Agencies that the contract was determinable in nature or that
the contract had expired.

     11. In reply to the contention that under Section 14(1 )(b)
and (d) of the Specific Relief Act, 1963 the agreement cannot       E
be specifically enforced, Mr. Venugopal cited Bowstead and
Reynolds on Agency for the proposition that in exceptional
cases specific performance of a contract of agency can also
be decreed by the Court. He argued that Section 42 of the
Specific Relief Act, 1963 makes it abundantly clear that where      F
a contract comprises an affirmative agreement to do a certain
act, coupled with a negative agreement, express or implead,
not to do a certain act, the circumstances that the court is
unable to compel specific performance of the affirmative
agreement shall not preclude it from granting an injunction to      G
perform the negative agreement. He also cited the decision of
the Chancery Division in Donnell v. Bennett reported in 22
Ch.D. 835 where it has been held that where there is a negative
clause in the agreement, the Court has to enforce it without
regard to the question of whether specific performance could
                                                                    H
    846      SUPREME COURT REPORTS                    [2012] 5 S.C.R.


A be granted of the entire contract. He referred to clause B-5 of
  the agreement which provides that Liberty Agencies shall only
  sell the products supplied by the respondent no.1 company and
  shall not sell any other articles/products manufactured by any
  other person/Company/Firm in the premises during the period
8 of the agreement unless approved by the respondent no.1
  company. He submitted that this is not a case where the
  appellants are entitled to any relief from this Court under Article
  136 of the Constitution of India.

         12. It is not necessary for us to deal with the contentions
C of learned counsel for the parties based on the provisions of
  Sections 14, 41 and 42 of the Specific Relief Act, 1963
  because Section 37 of the said Act makes it clear that
  temporary injunctions are to be regulated by the CPC and not
  by the provisions of the Specific Relief Act, 1963. In fact, the
D application for temporary injunction of respondent no.1 before
  the trial court is under the provisions of Order 39 Rules 1 and
  2 read with Section 151 of the CPC. It has been held by this
  Court in Kishoresinh Ratansinh Jadeja v. Maruti Corporation
  & Ors. (supra) that it is well established that while passing an
E interim order of injunction under Order 39 Rules 1 and 2 CPC,
  the Court is required to consider (i) whether there is a prima
  facie case in favour of the plaintiff; (ii) whether the balance of
  convenience is in favour of passing the order of injunction; and
  (iii) whether the plaintiff will suffer irreparable injury if an order
F of injunction would not be passed as prayed for. Hence, we only
  have to consider whether these well-settled principles relating
  to grant of temporary injunction have been kept in mind by the
  trial court and the High Court.
       13. On a reading of clause B-2 of the agreement, we find
G that Liberty Agencies had given a warranty that the suit
  schedule property was owned by it and that it will retain the
  possession of the suit schedule property until the expiry of the
  agreement. Clause D of the agreement clearly stipulated that
  the duration of the agreement shall be for a period of twelve
H
BEST SELLERS RETAIL (INDIA) PVT. LTD. v. ADITYA 847
   BIRLA NUVO LTD. & ORS. [A.K. PATNAIK, J.]

years from the date of the agreement unless terminated in             A
accordance with the provisions of the agreement. Clause E-2
further provides that respondent no.1 and not Liberty Agencies
could terminate the agreement by giving a notice of not less
than three months after the end of six years from the date of
the agreement and respondent no.1 had not terminated the              B
agreement under this clause. Before the expiry of six years from
the date of the agreement, Liberty Agencies sent the letter dated
26.02.2010 to the respondent No.1 committing a breach of
clause B-2 of the agreement which provided that Liberty
Agencies will retain possession of the suit schedule property         c
until the expiry of the agreement. This was the breach of the
agreement which was sought to be prevented by the trial court
by an order of temporary injunction. The trial court and the High
Court were thus right in coming to the conclusion that the
respondent no.1 had a prima facie case.
                                                                      D
     14. Yet, the settled principle of law is that even where prima
facie case is in favour of the plaintiff, the Court will refuse
temporary injunction if the injury suffered by the plaintiff on
account of refusal of temporary injunction was not irreparable.
In Dalpat Kumar & Anr. v. Prah/ad Singh & Ors. [(1992) 1              E
SCC 719] this Court held:

    "Satisfaction that there is a prima facie case by itself is
    not sufficient to grant injunction. The Court further has to
    satisfy that non-interference by the Court would result in
    "irreparable injury" to the party seeking relief and that there
                                                                      F
    is no other remedy available to the party except one to
    grant injunction and he needs protection from the
    consequences of apprehended injury or dispossession.
    Irreparable injury, however, does not mean that there must
    be no physical possibility of repairing the injury, but means     G
    only that the injury must be a material one, namely, one that
    cannot be adequately compensated by way of damages."
     15. In the present case, the respondent no.1 itself had
claimed in the plaint the alternative relief of damages to the        H
    848          SUPREME COURT REPORTS               [2012] 5 S.C.R.


A   tune of Rs.20, 12,44,398/- if the relief for specific performance
    was to be refused by the Court and break-up of the damages
    of Rs.20, 12,44,398/- claimed in the plaint was as follows:

          "I.     Net Book stock amount on 28.02.2010 is
B                 Rs.1, 15,97,638/-.

          II.     Loan amount due as           on   27.01.2010      is
                  Rs.44,81,584/-.

          Ill.    Amount due as per Statement of Accounts as on
c                 28.02.201 O is Rs.20,65, 176/-.

          IV.     Projected Loss of profit on sales, for the balance 7
                  year term of the Agency Agreement amounts to a
                  sum of Rs.10,31,00,000/-.

D         V.      Loss of Goodwill, Reputation including amount
                  spent on advertisement Rs.2,00,00,000/-.
          VI.     Loss of amount which Plaintiff would incur for
                  relocating the store to other place in the Brigade
                  Road, Bangalore and to continue its business for
E                 rest of the term 7 years would amount to
                  Rs.6,00,00,000/- along with simple interest at the
                  rate of 24% p.a. from the date of payment till
                  realization as the same being a commercial
                  transaction."
F
       16. Mr. Venugopal, learned counsel appearing for the
  respondent no.1, however, submitted that future profits and loss
  of goodwill of the respondent no.1 cannot be calculated in terms
  of the money, but the aforesaid statement of damages claimed
  by the respondent no.1 in the plaint would show that the
G respondent no.1 has itself calculated a projected loss of profit
  for the balance seven year term of the agreement as
  Rs.10,31,00,000/- and has also assessed loss of goodwill at
  Rs.2,00,00,000/- besides the loss of Rs.6,00,00,000/- in
  relocating the store to another place in Brigade Road,
H Bangalore.
BEST SELLERS RETAIL (INDIA) PVT. LTD. v. ADITYA 849
   BIRLA NUVO LTD. & ORS. [A.K. PATNAIK, J.]
      17. Despite this claim towards damages made by the                 A
respondent no.1 in the plaint, the trial court has held that if the
temporary injunction as sought for is not granted, Liberty
Agencies may lease or sub-lease the suit schedule property
or create third party interest over the same and in such an event,
there will be multiplicity of proceedings and thereby the                B
respondent no.1 will be put to hardship and mental agony, which
cannot be compensated in terms of money. Respondent no.1
is a limited company carrying on the business of readymade
garments and we fail to appreciate what mental agony and
hardship it will suffer except financial losses. The High Court          c
has similarly held in the impugned judgment that if the premises
is let out, the respondent no.1 will be put to hardship and the
relief claimed would be frustrated and, therefore, it is proper
to grant injunction and the trial court has rightly granted injunction
restraining the partners of Liberty Agencies from alienating,            D
leasing, sub-leasing or encumbering the property till the disposal
of the suit. The High Court lost sight of the fact that if the
temporary injunction restraining Liberty Agencies and its
partners from allowing, leasing, sub-leasing or encumbering the
suit schedule property was not granted, and the respondent no.1
ultimately succeeded in the suit, it would be entitled to damages        E
claimed and proved before the court. In other words, the
respondent no.1 will not suffer irreparable injury. To quote the
words of Alderson, B. in The Attorney-General vs. Hallett [153
ER 1316: (1857) 16 M. & W.569]:
                                                                         F
     "I take the meaning of irreparable injury to be that which,
     if not prevented by injunction, cannot be afterwards
     compensated by any decree which the Court can
     pronounce in the result of the cause."
    18. For the aforesaid reasons, we set aside the order of             G
temporary injunction passed by the trial court as well as. the
impugned judgment and the order dated 16.07.2010 of the High
Court. The appeals are allowed with no order as to costs. ·

B.B.B.                                           Appeals allowed.        H