MANU/DE/8609/2007

Equivalent Citation:

IN THE HIGH COURT OF DELHI

IA Nos. 14436/2006 and 558/2007 in CS(OS) No. 2395/2006

Decided On: 14.09.2007

Appellants: Frankfinn Aviation Services Pvt. Ltd.Vs.

Respondent: B.C. Gupta

Hon'ble Judges: Gita Mittal, J.

Counsels: For Appellant/Petitioner/plaintiff: J.R. Midha and Ajit Niar, Advs

For Respondents/Defendant: V.P. Singh, Sr. Adv. and Dinkar Singh, Adv.

Subject: Property

Catch Words

Mentioned IN

Acts/Rules/Orders: Specific Relief Act, 1963 - Section 10, Specific Relief Act, 1963 - Section 12.5, Specific Relief Act, 1963 - Section 14, Specific Relief Act, 1963 - Section 14(1), Specific Relief Act, 1963 - Section 41; Motor Vehicles Act ;Transfer of Property Act ;Code of Civil Procedure (CPC) - Order 39 Rules 1, Code of Civil Procedure (CPC) - Order 39 Rules 2, Code of Civil Procedure (CPC) - Order 39 Rules 3, Code of Civil Procedure (CPC) - Order 39 Rules 4

Cases Referred: Aggarwal and Modi Enterprises (Cinema Project) Pvt. Ltd. v. New Delhi Municipal Council 123 (2005) DLT 154; Associated Hotels of India Ltd. v. R.N. Kapoor AIR 1959 SC 1262; Atlas Interactive (India) Pvt. Ltd. v. Bharat Sanchar Nigam Limited and Anr. 126 (2006) DLT 504; Baker v. Merckel (1960) 1 All ER 668; Bal Sahyog v. UOI and Anr. 107 (2003) DLT 373; Bank of India Ltd. and Ors. v. Jansetji A.H. Chenoy and Chenoy and Co. AIR 1950 Privy Council 90; Behnke v. Bede Shipping Co. Limited (1927) 1 K.B. 649; C.M. Beena and Anr. v. P.N. Ramachandra Rao AIR 2004 SC 2103; Caltex (India) Ltd. v. Bhagwan Devi Marodia AIR 1969 SC 405; Deoraj v. State of Maharashtra and Ors. (2004) 4 SCC 697; Gajraj Singh etc. v. The State Transport Appellate Tribunal and Ors. AIR 1997 SC 412; J.C. New v. Ed. P.N. AIR 1998 MP 271; Jabalpur Cable Network v. E.S.P.N. Software India Pvt. Ltd. and Ors. AIR 1999 Madhya Pradesh 271; Kalidas Sadhu v. Sushil Kumar Agarwal AIR 2005 Calcutta 274; Khalil Ahmed Bashir Ahmed v. Tuff hussein Samasbhai Sarangpurwala AIR 1988 SC 184; Mahendra Saree Emporium v. G.V. Srinivasa Murthy AIR 2004 SC 4289; Metropolitan Sports Facilities Commission v. Minnesota Twins Partnership 638 N.W.2d 214 : 2002 Minn. App. LEXIS 91; Prakash Chandra v. Angadlal and Ors. AIR 1979 SC 1241; Provash Chandra Dalui and Anr. v. Biswanath Banerjee and Anr. 1989 Supp. (1) SCC 487;

Rajasthan Breweries Ltd. v. Stroh Brewery Co. AIR 2000 Del 450; The (Oro Chief) 1983 (2) LB 509; S. Petroleum Limited v. V.I.P. Petroleum Limited (1974) 1 All. E.R. 954; State for India in council v. Ah Forbes; State of U.P. and Ors. v. Lalji Tandon (Dead) AIR 2004 SC 32; Syed Jaleel Zane v. P. Venkata Murlidhar and Ors. AIR 1981 Andhra Pradesh 328; The East India Hotels Ltd. v. Syndicate Bank 1997 (1) Bom C.R. 234; U.P. State Electricity Board, Lucknow v. Ram Barai Prasad and Anr. AIR 1985 Allahabad 265; UOI v. Commercial Metal 2nd 1981 (II) Delhi 775; UPSC Board v. Ram Babu Pd. AIR 1985 All. 265; Vijaya Minerals Pvt. Ltd. v. Bikash Chandra Deb AIR 1996 Calcutta 67

Disposition: Application dismissed

Citing Reference:

Discussed  15

Distinguished  1

Mentioned  15

Case Note: Civil - Interim Injunction - Section 10(ii)(a) of Specific Relief Act, 1963 and Order 39 Rules 1, 2 and 4 of Code of Civil Procedure, 1908 (CPC) - Present application filed by plaintiff under Order 39 Rules 1 and 2 of CPC for interim prohibitory injunction and objection filed by defendant against grant of injunction under Order 39 Rule 4 of CPC - Held, copy of brochures printed by plaintiff contains its course content which includes training inside a leased real airbus A-300 - plaintiff has stated in its brochures that it is only institute in world to have such a facility - It appears that course and training imparted by plaintiff contains training inside airbus A-300 as its integral part which has to be essentially undergone by each student in order to obtain qualification of BTEC - Therefore refusal to renew contract would jeopardise career of thousand of students as well as their future prospects - Airbus fuselage is only fuselage available anywhere in India and no other fuselage would be available and this position is not disputed by defendants - This facility would certainly fall within definition of not being ordinary article of commerce and being of special value and interest to plaintiff falling within expression of such unique item in explanation to Section 10(ii)(a) of Act - Therefore plaintiff has made out a prima facie case for grant of ad interim protection and that award of damages would not be a complete or adequate remedy or relief - plaintiff acted in good faith and would certainly suffer irreparable loss and damage in case interim protection is not granted - Conduct of defendant in not making available log books and not even disclosing same on record of case and its belated response to letter and reminder of defendant shows that defendant has not acted bonafide - Balance of convenience is clearly in favor of plaintiff who has exercised option to renew

agreement between parties in manner envisaged in agreement - Hence, application of plaintiff allowed subject to payment of enhanced amount by plaintiff to defendant in terms of agreement and application of defendant dismissed

JUDGMENT

Gita Mittal, J.

1. In a suit filed by the Frankfinn Aviation Services Limited seeking a prayer that its facility and use agreement dated 5th January, 2005 continues to subsist and bind the parties, the plaintiff has filed this application being is No. 14436/2006 under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for a relief of interim prohibitory injunction and sought the following prayer:

It is, Therefore, most respectfully prayed that this Hon'ble Court may be pleased to pass an ad-interim ex parte injunction restraining the defendant interfering/obstructing usage of the stationary Airbus 300 by the plaintiff in terms of the lease agreement dated 5th January, 2005 during the pendency of the suit.

2. The matter came up before this Court for hearing on 22nd December, 2006 when the following interim order of injunction was passed.

IA No. 14436/2006

Notice, returnable on 3.6.2007.

Subject to the service upon the defendants not later than 29.12.2006 and up to the next date of hearing, the plaintiff is permitted to use and access without hindrance Air bus A-300 parked at Sector-8, Dwarka, Opposite CRPF Camp.

The provisions of Order XXXIX Rule 3 CPC be complied with within three days. dusty.

3. The defendant has objected to the grant of the injunction and filed is No. 558/2007 under Order 39 Rule 4 of the Code of Civil Procedure. Consequently, parties have been heard on both these applications.

4. So far as the material facts are concerned, I find that there is no material dispute so far as the documentation is concerned. The parties are at variance over the construction to be placed on them. It appears that by an agreement dated 5th January, 2005 executed by Shri Bahadur Chand Gupta as sole proprietor of M/s Aviation (India) Pvt. Ltd. and Mr. Shoba Ram Gupta on the one hand with M/s Frankfinn Institute of Air Hostess Training (a unit of Frankfinn Aviation Services Pvt. Ltd.), the plaintiff was given the right of commercial use of the fuselage of the MSN 111 Air Bus 300 B to EXVT EFW (hereinafter referred to as the air bus) placed on the land being Block A, Sector 8, opposite CRPF Camp Owari New Delhi-75 (at Khasra No. 4/13, Village Badge admeasuring 550 sq. yards).

5. Mrs. Bhateri Devi, mother of Shri Bahadur Chand Gupta, joint owner of these premises has signed the agreement as a consenting party. This agreement was entered into to enable the plaintiff to provide basic cabin crew/cabin crew training for aspiring air hostesses and flight stewards. Some of the material terms of this agreement which have given rise to these disputes deserve to be considered in extenso and read thus:

A. SUBJECT OF LEASE:

i. That the Lesser has given to the lessee the lease hold rights in the Airbus

for the agreed period Along with other facilities co-related to the same at the said premises.

B. LEASE PERIOD:

i. That the lease period shall be for a period of two years i.e. commencing from 01.01.2005 to 31.12.2006. The lease shall be renewed thereafter at the option of the lessee.

ii. That the lease period is in terms of 1550 hours in a year which is equated as commencing from 12 noon to 6 pm on a day for 5 days in a week i.e. Monday to Friday, excluding national holidays. In the event the lessee wishes to increase the hours then the lessee shall be entitled for the enhancement of the hours to the extent of 20% i.e. additional 310 hours on the same rate of lease amount per hour.

xxx

D. REFUNDABLE AMOUNTS:

i. That the LESSEE has paid a total amount of Rs. 10,11,000/- (Rupees Ten Lakhs Eleven Thousand Only) as interest free refundable security deposit i.e. Rs. 10 lacs vide Cheque No. 000279, dated 23/11/2004 drawn on UTI Bank Ltd., and Rs. 11,000/- as Cash before the date of signing of this LEASE agreement. The Lesser shall be liable to pay the said refundable security unconditionally to the LESSEE upon the termination of this LEASE agreement.

ii. That the Lesser shall refund the security deposit back to the LESSEE, in full upon termination of this LEASE agreement.

iii. That the Lesser shall refund the security and excess lease amount that shall be accountable towards the lessee in the event the agreement cannot be operated due to disability of the Lesser of whatsoever nature by the lessee during the tenure of the present agreement.

6. In terms of Clause F of the agreement, the defendant had covented to allow the plaintiff the usage of all facilities that are connected to the air bus in imparting the basic cabin crew/cabin crew training during the training hours that were agreed to be from 12 noon to 6 p.m. from monday to friday. The defendant had agreed to maintain cleanliness and hygiene at the premises; provide adequate steps for escape chutes/slides and ditching demonstration with requisite pond and cushion at the premises; permit the plaintiff to make use of the first built up cabin on the premises admeasuring 8 × 10 feet as the room allotted to the lessee for its use, disposal, storage/management of its belongings and staff required during the lease period for the basic cabin crew/cabin crew training for all days in a week including Sunday; provide the facility of drinking water and toilets for the students to be maintained and cleaned by the defendant; provide the left hand side wall on the entrance gate for advertisement and promotion of the trade name logo and address of the plaintiff and permit putting up a hoarding; maintain cafeteria/stall/canteen provide eatable lunch/snacks etc to the students; permit the plaintiff to carry out promotional activities.

7. The defendant was also responsible for the maintenance activities at the premises in terms of Clause G. By virtue of Clause J, the defendant and his family members were prohibited from entering into any competitive and/or similar activities As those of the defendant from the plaintiff from the premises and/or any other premises or in the air

bus.

8. The obligations of the plaintiff were detailed in Clause L. Both parties have placed heavy emphasis on the stipulations contained in Clause L(viii), (x), (xi), (xv) and (xvi) which read thus:

L. OBLIGATIONS OF THE Lesser:

(viii). That if in the total lease period the requisite hours are not utilized on account of Lesser's disability for any reason, whatsoever then the remaining hours shall be compensated to the lessee by addition of the equivalent lease period. However, if the lessee is not able to utilise the requisite hours by the end of 18 months, the remaining hours shall be compensated to the lessee by addition of equivalent hours to be utilised within the lease period with mutual convenience.

(x). That the Lesser shall adjust or refund in favor of the lessee the lease amount that is received in excess, in the event the activities in the premises and the Airbus are suspended due to disability on the part of Lesser for whatsoever reason.

(xi). That the Lesser shall adjust or refund in favor of the lessee the rent that is received in excess, in the event the activities in the premises and the Airbus is suspended for whatsoever reason due to the disability of the Lesser. The Lesser shall give first option to the lessee to restart its lease agreement for the remaining period under the present agreement.

(xv). The Lesser shall maintain a log book of hours to be utilised daily by the lessee with entries of time in and time out to have a record that not more than the Designated Time Period has been utilised by the lessee and shall get it signed by lessee's authorized staff(s) on daily basis. The lessee having entered into the premises with its students and having signed the log book then that shall be treated as having utilized 6 (six) hours of the day even if same number of hours are not properly utilised. In the event if the lessee wants to utilize additional hours that shall be allowed by the Lesser, if Airbus is available accordingly.

(xvi). That in the eventuality the operation of the present agreement is stopped due to disability on the part of Lesser for whatsoever reason for a particular period then the left out period shall be added thereafter in favor of the lessee.

9. The defendant has placed reliance on the stipulations in the agreement that it was to station its staff at the premises in terms of Clause m(ii) which reads thus:

M. OBLIGATIONS OF THE LESSEE:

(ii). That the lessee shall be responsible to have its staff stationed at the premises half an hour before the start of the training hours on each day for inspection of the high standard of cleanliness and sanitation at the premises and in the Airbus maintained by the Lesser.

10. The suit of the plaintiff is premised on the renewal Clause in the agreement contained in Clause N which stipulates as follows:

N. RENEWAL OF LEASE:

i. That the lessee shall exercise its option of renewal of the present lease two months prior to the termination of the present lease by the efflux of time i.e. On or before 31.10.2006. The lessee shall exercise its option of renewal of lease by intimating the Lesser through written communication. Upon such renewal the Lesser shall increase 20% enhancement in the bi-annual lease amount.

11. On the other hand, the defendant places reliance on Clause P in the agreement which stipulates that in case of breach of the present agreement by the defendant shall entitle the plaintiff to claim unconditional damages which is hereto agreed to as Rs. 4.68 crores (Rupees Four Crore Sixty Eight Lacs) i.e. thrice the amount of the total lease amount payable under the present agreement by the lessee to the Lesser and vice-versa.

12. Pursuant to this agreement, the plaintiff entered upon the premises on 29th June, 2005. The plaintiff has submitted that it exercised its option of a renewal of the agreement in terms of Clause n and sent a letter dated 19th October, 2006 requesting the defendant to extend the agreement by addition of the equivalent lease period as the air bus was provided for training and the plaintiff was entitled to such extension by virtue of Clause B(iii) and Clause l(viii). The plaintiff also requested the defendant for furnishing log books to enable it to calculate further loss of hours. The defendant was also notified by the plaintiff by this communication that it was confirming exercise of the plaintiff's option to renew the lease for another period of two years from expiry of the additional equivalent lease period and that in terms of Clause N(i), the monthly rent would be increased by 20%. In furtherance of this letter, the plaintiff also claims to have delivered cheques for the enhanced lease rent to the defendant on 19th October, 2006.

13. By a letter dated 27th October, 2006, the plaintiff informed the defendant that it was treating the agreement as renewed and that it was going ahead with all schedules and commitments.

14. The suit has been filed by the plaintiff who submits that it received a letter dated 18th December, 2006 from the defendant informing it that it was not possible to extend the lease agreement and to provide the plaintiff with the aircraft fuselage for training activities. Two reasons given in this letter were, firstly, that the air hostess training was not permissible in the premises and in view of the orders of sealing passed by the Apex Court, it was more appropriate to stop the crew training activities, and secondly that maintenance cost of the aircraft fuselage was very high and this was not feasible on the amount being received from the plaintiff. Thus, the Clause period would not be enclosed. The defendant also disputed the date of handing over of the possession of the aircraft and stated that before the commencement of the agreement on 24th November, 2004, the defendant had called a press conference in the fuselage and that trainees were being sent from 24th November, 2004 apart from the media coverage and admission interviews. According to the defendant, the plaintiff also was getting the painting of the aircraft done and that the defendant was utilising the aircraft for 24 hours a day. The defendant also claimed huge amount from the plaintiff for the reason that the plaintiff had painted its logo on both sides of the fuselage in variation of the agreement and consequently the defendant claimed that it was entitled to advertisement rental. In this background, the defendant notified the plaintiff that it was unable to extend the agreement and requested it to stop using the same with effect from 1st January, 2007.

15. The defendant had sent a reply dated 20th December, 2006 informing the plaintiff that inasmuch as the agreement postulated that the plaintiff alone had the option to renew the agreement and that the plaintiff had exercised such option by the communication dated 19th October, 2006, Therefore the refusal to renew by the plaintiff

was illegal. The suit was filed immediately thereafter on 21st December, 2006 on the averment that the plaintiff had paid the rent payable by it up to April, 2007 and contending that the action of the defendant was contrary to both law and facts.

16. According to the plaintiff, the defendant had no right to refuse the renewal under the terms of the agreement. The submission is that the right to extension was unilateral.

17. The plaintiff has also urged that balance of convenience, interest of justice and equity are in favor of the plaintiff and against the defendant. It is further urged that the agreement in question related to utilisation of the airbus and other allied facilities by the plaintiff. The air bus was not an ordinary article of short period arrangement/agreement according to it was communicated to it by the defendant by the letter of 26th December, 2006. It has been urged that compensation in such a case can never be an adequate remedy and an injunction must follow. According to the plaintiff, no other aircraft (fuselage) is available in the country and that an injunction must follow in all such cases. In this behalf, reliance is placed on MANU/DE/0197/1981 : 1982RLR163 UOI v. Commercial Metal. The plaintiff has urged that the aircraft fuselage is not an ordinary article of commerce but has 'commercial uniqueness/distinctiveness' and consequently the plaintiff would be entitled to the relief of specific performance in respect of such a contract. For this reason, it is urged that the prohibition contained in Section 14 of the Specific Relief Act would not operate. Reliance is placed by the plaintiff in support of this submission on Chitty on contracts 29th Edition 2004 Volume 1 (para 27 - 014) at page 1527; (1974) 1 All. E.R. 954 S. Petroleum Limited v. V.I.P. Petroleum Limited; MANU/WB/0008/1996 : AIR1996Cal67 Vij Minerals Pvt. Ltd. v. V.C.D.; AIR 1998 MP 271 J.C. New v. Ed. P.N.; AIR 950 PC 90 Bank of India v. Janset JI AH; Chonoy v. Co. MANU/UP/0173/1985 : AIR1985All265 UPSC Board v. Ram Babu Pd.; (126) 2006 DLT 504 Atlas Interactive (India) Pvt. Ltd. v. BSNL; 1927 (1) KB 649 Behnke v. Bede Shipping Co. Limited; 1983 (2) LB 509 The (Oro Chief) and has also cited Ferns Worth on contracts (iii) 2nd Ed. Para 12.1 at page 151. It has been urged that so far as ships aircraft logo are concerned, the contracts relating to them are unique and provision of actual damages over breach would not prohibit grant of an injunction which has to follow as a matter of course. Ref MANU/SC/0022/1979 : AIR1979SC1241 . The plaintiff urges that denial of the interim relief would tantamount to dismissal of the suit and in the light of the principles laid down in MANU/SC/0314/2004 : AIR2004SC1975 Devraj v. State of Maharashtra and Ors., the injunction in favor of the plaintiff is liable to be confirmed. Mr. J.R. Midha, learned Counsel appearing for the plaintiff has also placed the instances of similar facility use agreement for the use of theaters, class rooms equipped with it in educational institutions etc. In this behalf reliance has been placed on para 24 in the case of Metropolitan Sports Facilities Commission v. Minnesota Twins Partnership 638 N.W. 2D 214 : 2002 Minn. App. LEXIS 91, the court of appeals of minnesota dealt with the Facility use agreement and the injunction. Lastly it has been urged that the conduct of the defendant has been such as to cause irreparable loss and injury to the plaintiff and which disentitles the defendant to exercise of discretion in its favor. The plaintiff has prayed that its application being is No. 5113/2007 for the deposit of the lease amount be granted and, subject to an undertaking of the defendant to restore the facility, the same may be released to the plaintiff.

18. Mr. V.P. Singh, learned senior counsel for the defendant, has urged the principal challenge to grant of injunction to the plaintiff based on the provisions of the Specific Relief Act, 1963. The submission is that the agreement in the instant case is determinable and consequently by virtue of Section 14(1)(c)(d) of this statute, such contract cannot be specifically enforced. Consequently no injunction thereof can be issued under Section 41 of the Specific Relief Act, 1963. Reliance is placed on MANU/DE/0860/2000 : AIR2000Delhi450 Rajasthan Breweries Ltd. v. Stroh Brewery Co. Learned senior Counsel for the defendant places reliance on MANU/SC/0254/2004 : AIR2004SC2103 C.M. Beena and Anr. v. P.N. Ramachandra Rao; MANU/SC/0526/1987 : [1988]1SCR1057 Khalil Ahmed

Bashir Ahmed v. Tuff hussein Samasbhai Sarangpurwala; MANU/SC/0168/1959 : [1960]1SCR368 Associated Hotels of India Ltd. v. R.N. Kapoor; MANU/SC/0671/2004 : AIR2004SC4289 Mahendra Saree Emporium v. G.V. Srinivasa Murthy. It has been urged that the plaintiff has placed reliance on the agreement as if it was intended to create a lease which required compulsory registration. In this regard reliance is placed on MANU/MH/0408/1996 : 1997(1)BomCR234 The East India Hotels Ltd. v. Syndicate Bank. Mr. Singh, learned senior Counsel has urged at length that the defendant has validly revoked the agreement vide the letter dated 19th December, 2006.

19. I have heard learned Counsel for the parties. There is no dispute by the plaintiff that the agreement contract between the parties was for leasing out the airbus which is not immovable property. The whole case of the plaintiff rests on its communication dated 19th October, 2006 which according to the plaintiff in terms of Clause n of the agreement dated 5th January, 2005. The plaintiff has submitted that Clause 9 permitted it to exercise option of renewal on or before 31st October, 2006 and that the plaintiff having exercised the option within such period, nothing further remained to be done and the lease between the parties stood renewed.

20. In view of the submissions of the plaintiff, there is no dispute that the plaintiff is claiming rights of facility and use in the aircraft fuselage and an agreement in respect thereof would not require registration and appropriate stamp duty.

21. I find that the plaintiff has laid three fold submissions before this Court. Its first contention is that having regard o the nature of the renewal Clause as contained in Clause N of the agreement between the parties, the plaintiff being the lessee had absolute right to exercise the option for renewal. In this behalf, reliance has been placed on MANU/SC/0422/1989 : [1989]2SCR401 Provash Chandra Dalui v. Biswanath Banerjee and Anr. and MANU/SC/0116/1997 : AIR1997SC412 Gajraj Singh etc. v. The State Transport Appellate Tribunal and Ors. It has been contended that the option to extend is given absolutely to the plaintiff under the agreement and such extension requires only a unilateral act upon the part of the plaintiff. It is not dependent upon the consent of the defendant. In support of this submission, reliance has been placed on the judicial pronouncements reported at MANU/SC/0861/2003 : AIR2004SC32 State of U.P. and Ors. v. Lalji Tandon (Dead); MANU/DE/1087/2005 : 123(2005)DLT154 Aggarwal and Modi Enterprises (Cinema Project) Pvt. Ltd. v. New Delhi Municipal Council; MANU/DE/0847/2003 : 107(2003)DLT373 Bal Sahyog v. UOI and Anr. and (1960) 1 All ER 668 Baker v. Merckel.

22. It is necessary to notice the basic and inherent distinction between the cases relied upon in support of this contention and the facts of the instant case. These precedents cited by the plaintiff related to contracts of immovable property and renewals/extension Clauses in relation thereto. The instant case, even according to the plaintiff, is not relating to any immovable property but to moveable property. In the written submissions which have also been filed, the plaintiff has clearly contended that the parties entered into a contract for leasing the fuselage of the air bus, which is moveable property, to the plaintiff for its exclusive use Along with other facilities correlated thereto. In this view of the matter, the judicial pronouncements relied upon by the plaintiff with regard to contracts relating to Immovable property would have no bearing on the matters in issue except to a limited extent of guiding adjudication on the manner, an option to renew an agreement is to be exercised and impact thereof.

23. In Provash Chandra Dalui and Anr. v. Biswanath Banerjee and Anr. MANU/SC/0422/1989 : [1989]2SCR401 , the Apex Court considered the distinction between extension of a lease and its renewal. Placing reliance on the dictionary meaning of these expressions, the court emphasized that every contract is to be construed with reference to its object and the whole of its term. The whole context must be considered to

ascertain the intention of the parties.

24. In Gajraj Singh v. The State Transport Appellate Tribunal and Ors. MANU/SC/0116/1997 : AIR1997SC412 , the Apex Court was concerned with renewal of a transport permit under the Motor Vehicles Act. The principles which were laid down by the court in these judicial pronouncements would thus have no bearing on the facts of the instant case.

25. The plaintiff has placed strong reliance on the terms of Clause N. This covenant between the parties itself postulated a unilateral act on the part of the lessee to exercise the option of renewal of the lease. The lessee is required to exercise such option of renewal by intimating the lesser through a written communication two months prior to the termination of the present lease by efflux of time, that is on or before the 31st October, 2006.

26. Such issue with regard to renewal of a lease of Immovable property arose for consideration before the Apex Court which has authoritatively pronounced the applicable principles in MANU/SC/0861/2003 : AIR2004SC32 State of U.P. and Ors. v. Lalji Tandon (Dead). The Apex Court considered the entire law on the subject. The court placed reliance on the principles laid down in (1960) 1 All ER 668 Baker v. Merckel wherein it had been laid down that where a covenant for renewal exists, its exercise is, of course, a unilateral act of the lessee and the consent of the Lesser is unnecessary. In para 13 of this pronouncement, the court noticed the difference between the extension of a lease and a renewal Clause in a lease. The court noticed with approval the principles laid down by the Andhra Pradesh Division Bench in MANU/AP/0112/1981 : AIR1981AP328 Syed Jaleel Zane v. P. Venkata Murlidhar and Ors which were to the following effect:

(i) In India, the law does not prohibit a perpetual lease; clear and unambiguous language would be required to infer such a lease, if the language is ambiguous the Court would opt for the interpretation negating the plea of the perpetual lease;

(ii) To find an answer to the question whether a covenant for renewal contained in the lease deed construed properly and in its real context, entitles the tenant to continue as long as he chooses by exercising the option of renewal at the end of each successive period of 5 years subject to the same terms and conditions depends on the deed of lease being read as a whole and an effort made to ascertain the intention of the parties while entering into the contract. No single Clause or term should be read in isolation so as to defeat other clauses. The interpretation must be reasonable, harmonious and be deduced from the language of the document.

(iii) The Court always leans against a perpetual renewal and hence where there is a Clause for renewal subject to the same terms and conditions, it would be construed as giving a right to renewal for the same period as the period of the original lease, but not a right to second or third renewal and so on unless of course, the language is clear and unambiguous.? The court has also noticed with approval the principles culled out by the Division Bench of the Calcutta High Court in State for India in council v. Ah Forbes the following principles on a consideration of several English decisions on the subject:

(1) A lease, which creates a tenancy for a term of years, may yet confer on the lessee an option of renewal.

(2) If the lease does not State by whom the option is exercisable, it is exercisable (as between the Lesser and lessee) by the lessee only, that is to say, a covenant for renewal, if informally expressed, is enforced only in

favor of the lessee.

(3) The option is exercisable not merely by the lessee personally but also by his representative-in-interest.

(4) If the option does not State the terms of renewal, the new lease will be for the same period and on the same terms as the original lease, in respect of all the essential conditions thereof, except as to the covenant for renewal itself.

(5) There is no sort of legal presumption against a right of perpetual renewal. The burden of strict proof is imposed upon a person claiming such a right. It should not be inferred from any equivocal expressions which may fairly be capable of being otherwise interpreted. The intention in that behalf should be clearly shown: otherwise, the agreement is satisfied and exhausted by a single renewal.

(6) A covenant for renewal runs with the land.

(7) The position of a lessee, who has been always ready and willing to accept a renewal on proper terms, is the same in equity as if a proper lease had been granted. Where the covenant for renewal was still specifically enforceable at the commencement of a suit for ejectment against the lessee, the position of the lessee in equity is the same as if it had been specifically enforced.

27. In Aggarwal and Modi Enterprises (Cinema Project) Pvt. Ltd. v. New Delhi Municipal Council MANU/DE/1087/2005 : 123(2005)DLT154 , a Division Bench of this Court had occasion to consider the issue relating to renewal of a lease and the following principles were culled out upon an extensive consideration of the entire law on the subject:

(a). In India, a lease may be in perpetuity and the law, either the Transfer of Property Act or the general law abhors a lease in perpetuity., If there is a covenant for renewal in the lease agreement, lessee can exercise his right unilaterally for extension of lease, for which consent of Lesser is not necessary.

(b) Where the principal lease executed between the parties containing a covenant for renewal, is renewed in accordance with the said covenant, whether the renewed lease shall also contain similar Clause for renewal depends on the facts and circumstances of each case, regard being had to the intention of the parties as displayed in the original covenant for renewal and the surrounding circumstances.

(c) There is difference between an extension of lease in accordance with the covenant in that regard contained in the principal lease and renewal of lease. In the case of extension it is not necessary to have a fresh deed of lease executed. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised, a fresh deed of lease shall have to be executed between the parties.

(d) Failing the execution of fresh deed of lease, another lease for a fixed terms shall not come into existence though the principal lease in spite of the expiry of the term thereof may continue by holding over for year by year or month by month, as the case may be.

(e) If the language in the lease deed is ambiguous, the Court would opt for an interpretation negating the plea of the perpetual lease. Where there is a Clause for

renewal subject to the same terms and conditions, it would be construed as giving a right to renewal for the same period as the period of the original lease but not a right to second or third renewal and so on unless, of course, the language is clear and unambiguous. While ascertaining the intention of the parties in this behalf, lease deed has to be read as a whole.

28. In the light of the aforenoticed principles, though the present case relates to an agreement in respect of a moveable property, the principles which would govern the manner in which a party would exercise the renewal option in respect of a lease for Immovable property as laid down in the aforenoticed judgments, would guide adjudication herein as well. Clause N of the agreement dated 5th January, 2005 contained a renewal option which was available to the lesses that is the plaintiff herein. Such option was to be exercised in writing on or before 31st October, 2006. Upon such renewal, there was a requirement to increase by 20% the bi-annual lease amount. It is not disputed that the plaintiff exercised such option on 27th October, 2006. Having regard to the nature of the contract between the parties an absolute option to renew the lease was vested in the plaintiff which was not dependant on the consent of the defendant. The plaintiff has admittedly communicated its intention and exercised the option on 26th October, 2006, the stipulated last date. Therefore, there can be no dispute to the fact that the plaintiff has exercised the option in terms of the renewal clause. The agreement would stand renewed immediately on the plaintiff having communicated exercise of the option in terms of Clause N prior to 31st October, 2006.

29. An objection has been taken by the defendant that the plaintiff is disentitled to any injunction inasmuch as the agreement between the parties postulated compensation in terms of money and consequently Clause P provide for damages. Therefore in terms of Section 14(a) of the Specific Relief Act, 1963 which provides that such contract where compensation in money is an adequate relief, shall not be specifically enforced. It has further been urged that the agreement dated 5th January, 2005 is determinable in nature and consequently in view of Section 14(d) of the Specific Relief Act, 1963, the same cannot be enforced. Placing reliance on the provisions of Section 14, it has been urged that for these reasons, the agreement is incapable of being specifically enforced, no injunction can be granted.

30. On the other hand, the plaintiff has placed reliance on the Explanationn to Section 10 and have urged that the property in question is not an ordinary article of commerce and, in addition, is of special value or interest to the plaintiff. It has also been urged that the fuselage of the aircraft is an item which is not easily obtainable in the market and consequently, in the light of Explanationn ii(b) to Section 10, the contract between the parties falls within the exception to the prohibitions under Section 14(a) and (d). It is urged that for this reason, the plaintiff would be entitled not only to specific performance of the contract but also to the relief of injunction. It has also been urged that the damages stipulated under the agreement do not provide adequate relief to the plaintiff.

31. My attention has been drawn to the judgment of the English courts reported at (1974) 1 All ER 954 Sky Petroleum Limited v. VIP Petroleum Limited. This case related to a contract between the parties whereby the plaintiff had agreed that for a minimum period of 10 years, it would buy all the petrol and diesel fuel that was needed for its filling station from the defendant. When the defendant terminated the contract in November, 1973, the plaintiff brought an action for breach of the terms and sought an interlocutory injunction restraining the defendant from withdrawing such supplies. The court considered the trade evidence laid before it and found that the plaintiff company would have little prospects of finding any alternative source of supply for petrol and diesel fuel needed for its filling stations. The defendant also expressed willingness to continue to supply subject to certain prices. The court was of the view that, on the evidence laid before it, there was serious danger that unless the court interferes, the plaintiff company would be forced out of

business and consequently granted an injunction to restore the formal position under the contract until the rights and wrongs of the parties can be tried out. Even though this case related to supply of fuel, the court departed from the general rule to preserve the position under the contract. It is noteworthy that the defendant had taken a plea that it was entitled to terminate and that the plaintiff company was in the wrong. The defendant also objected that the court refuses specific performance of a contract to sell and purchase chattels not specific or ascertained. This submission was based on the proposition that under the ordinary contract for sale of non-specific goods, damages are a sufficient remedy and that this was lacking in the circumstances of the present case.

32. Before this Court reliance has been placed on pronouncements of different High Courts wherein the courts have held several articles of commerce as being impregnated and stamped with the quality of commercial uniqueness. At this stage, it would be useful to consider the statutory provisions of the Specific Relief Act, 1963 in extenso which reads thus:

10. Cases in which specific performance of contract enforceable - Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-

(a) When there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or

(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation. - Unless and until the contrary is proved, the court shall presume-

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:

(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

(b) where the property is held by the defendant as the agent or trustee of the plaintiff.

33. This provision has fallen for consideration in several cases. In a pronouncement of the Calcutta High Court in MANU/WB/0008/1996 : AIR1996Cal67 Vijaya Minerals Pvt. Ltd. v. Bikash Chandra Deb wherein the defendant attempted to render nugatory a contract for sale of manganese and iron ores and excavated and received for delivery expiate mouth on the ground of inadequacy of consideration and that the same was an unconscionable bargain. The court observed that manganese and iron ores are available only in certain areas where such mines are located and consequently it could not be said that they were ordinary articles of commerce. Consequently, a decree for specific performance could be passed. It was also noticed that the contract contained a negative covenant that the ores from mines would not be sold to anyone except the buyer under the agreement which contract would bind the other party as well and consequently the question of balance of convenience and whether damages would be adequate would become immaterial. In MANU/MP/0066/1999 : AIR1999MP271 Jabalpur Cable Network v. E.S.P.N. Software India Pvt. Ltd. and Ors., the court held that the transmission signals which were being transmitted were not ordinary article of commerce and were of special value to the

appellant as they were goods which were not easily available in the market.

34. Again in MANU/PR/0035/1949 : AIR 1950 PC 90 Bank of India Ltd. and Ors. v. Jansetji A.H. Chenoy and Chenoy and Co. it was held that having regard to the nature of the company and the limited market for its shares, damages would not be an adequate remedy for non-performance on the part of the seller, of a contract to sell the shares.

35. I find that coal ash was held to be a type of property which is not easily available in the market. It is a waste product which is available only when a coal fired boiler is used. Therefore bulk supply of coal ash is available only when there is a thermal power station. It is Therefore not an easily or ordinarily available item for sale or purchase. It was so held in MANU/UP/0173/1985 : AIR1985All265 U.P. State Electricity Board, Lucknow v. Ram Barai Prasad and Anr. The court held that Clause (ii)(a) of the Explanationn to Section 10 of the Specific Relief Act, 1963 was fully attracted in the case of a contract relating to sale and purchase of coal ash and consequently upon a breach of a contract to transfer the coal ash, it was held that the plaintiff could not be adequately compensated in terms of money to relieve such breach. Therefore, Section 41 of the Statute would not be a bar to seeking relief of injunction in the present case.

36. In Atlas Interactive (India) Pvt. Ltd. v. Bharat Sanchar Nigam Limited and Anr. 126 (2006) DLT 504, the petitioner had entered into a franchise agreement with the respondent No. 1 for providing broad band services on T.V., the existing copper network of the respondent No. 1 in different places. In this case, the court noticed the submission that even though the contract may be determinable in nature, however since it was for setting up a unique project for which the petitioner had procured tailor made equipment which could not be utilised anywhere else, specific performance may be ordered. Undoubtedly, in this case the contract was between a private party and the respondent No. 1 which was held to be an instrumentality of the state and consequently the respondents were required to ensure that their actions were not arbitrary and were reasonable. The court also held that the breach of contract to transfer these goods cannot be relief of payment of money in lieu thereof and that there could be no standard of ascertaining the loss caused to the appellant by not displaying the live programmes of the Star Sports channel. In these circumstances, it was held that such a contract would be specifically enforceable under Section 10 of the Specific Relief Act, 1963 and read with Explanationn (ii)(a) thereof. Even otherwise, it was held to be covered by Section 10(b) of the Act. In these circumstances, an injunction restraining the respondent No. 1 from terminating the agreement between the parties was granted.

37. In the instant case, the court is concerned with the fuselage of an aircraft. In support of its contention that such an article is required to be considered as a unique and not easily procurable item, reliance has also been placed on the pronouncement in Behnke v. Bede Shipping Co. Limited (1927) 1 K.B. 649. The court held that there was adequate evidence before it that the ship was peculiar and of practically unique value to the plaintiff and consequently the plaintiff would be entitled to a decree of specific performance in respect of his contract for purchase of the same from the defendant. In the Partrederiet Oro Chief And Levant's Maritime Corporation (1983) 2 LR 509, the court was also concerned with the cancellation of a contract for sale of a ship. The owners cancelled the contract and sold the vessel to the second owners. In this case, it was held that the question which arose for consideration was as to whether the chattel to be sold, can or cannot be readily replaced by the purchase of a similar chattel in the market. If it cannot, there would be at least a prima facie case for specific performance.

38. Strong reliance has been placed by the plaintiff on the pronouncement of this Court reported at 126 (2006) DLT 504 Atlas Interactive (India) Pvt. Ltd. v. BSNL to urge that even a contract which may be determinable could not be treated as an ordinary commercial contract and regard had to be had to the nature of the contract. It was argued

that in a contract involving a unique project requiring tailor made equipment, injunction would follow as a matter of course. Perusal of this judgment shows that the same would have no application to the matter in issue. In para 12 of the pronouncement, the court referred to the several judgments of this Court and affirmed a principle that contracts which are determinable in nature cannot be specifically enforced and injunctions cannot be granted to prevent breach of such contracts. However, the court clearly drew a distinction between 'private commercial contracts' and 'contracts of private parties with governmental authorities'. In this regard, the court had observed that the principle that injunctions cannot be granted to prevent a breach of terminable contracts apply to 'private commercial contracts' as held in the Rajasthan Breweries case. The court however observed having regard to the fact that one of the contracting parties, the defendant No. 1 was an instrumentality of the state and must act in a fair, just and equitable manner and that the freedom which is available to a private party in private contracts, in respect of the performance of contractual obligations, is not available to the state or its instrumentalities in the same manner because every action of the state has to be just, fair and devoid of arbitrariness. In para 14, it was observed that the petitioner could be ousted from the contract only for sufficient and good reasons. Furthermore the court considered the fact that in case heavy damages were imposed by the arbitral tribunal finally, the respondent No. 1 would have the risk of paying such heavy damages since respondent No. 1 is an instrumentality of the state and that risk of payment of such heavy damages should not be taken lightly as public money has to be protected with utmost care and concern. In this behalf in para 15, it was observed that hazardous and adventurous pleas should not be taken when public money is at stake. It was in this background that the court came to a conclusion that since the project under the agreement was unique and the equipment created tailor made for respondent No. 1 and since respondent No. 1 is an instrumentality of the state, it has no right to act arbitrarily and unreasonably. The court was of the view that highhandedness appear to be on the part of the state and consequently having regard to Section 10(ii) a of the Act, injunction was considered to be the appropriate remedy. The respondent No. 1, by its conduct, allowed the petitioner to invest more and more funds in the project and thereby drove the petitioner to a situation where it would not only suffer huge financial loss but loss of trade, reputation and goodwill also which may not be compensated in terms of money.

39. My attention has been drawn to the words of E. Allan Farnsworth in his text on Contracts in Volume 3 in Section 12.5 who has observed that the modern trend of law is clearly in favor of extension of specific relief at the expense of the traditional primacy of damages. It has been further observed that specific performance may be granted after there has been a breach of contract by either non-performance or repudiation. At page 167, the learned author has stated that the court will not, however, grant an injunction unless the remedy in damages would be inadequate and that a provision for liquidated damages would not preclude the grant of specific performance or an injunction instead of or in addition to the award of such damages.

40. On this subject, this text in respect of contracts relating to sale of goods throw valuable light on the issues before this Court. In this context, the author has observed thus:

The traditional attitude toward contracts for the sale of goods is quite the opposite of the attitude toward contracts for the sale of land. In a market economy it was supposed that, with rare, exceptions for such 'unique' items as heirlooms and objects of art, substantially similar goods were available elsewhere. The trend, however, has been to relax this restriction on the availability of specific performance. The commentary to the Uniform Commercial Code explains that it "seeks to further a more liberal attitude than some courts have shown in connection with the specific performance of contracts of sale" and that it introduces "a new concept of what are 'unique' goods" with a test of uniqueness that "must

be made in terms of the total situation which characterizes the contract." It asserts that the buyer's "inability to cover is strong evidence" of the propriety of granting specific performance and that "where the unavailability of a market price is caused by a scarcity of goods of the type involved, a good case is normally made for specific performance under this Article." But the text of the Code is more circumspect stating only, "Specific performance may be decreed where the goods are unique or in other proper circumstances. The Code does not reject the adequacy test, and specific performance remains the exception rather than the rule under contracts for the sale of goods. If the seller fails to deliver the goods, the typical buyer must still content itself with money as a substitute.

41. The purpose of stipulation of an amount on account of damages in a contract has been explained in MANU/SC/0022/1979 : AIR1979SC1241 Prakash Chandra v. Angadlal and Ors. In para 10, the Apex Court has held that perusal of the terms of the contract would indicate that the stipulation of damages was made only for the purposes of securing performance of the contract and not for the purposes of giving an option of paying money in lieu of specific performance. Even if a sum has been named in the contract for sale as an amount to be paid in case of a breach, the appellant is entitled in law to the enforcement of the agreement.

42. In the instant case, the plaintiff has pointed out that the damages mentioned in Clause P of the agreement relate to compensation for breach of the non-compete Clause mentioned in Clause J and have no bearing on the non- extension of the agreement or the period thereof. However, in case this Court arrives at a conclusion that the contract relates to goods or services which are unique and irreplaceable, then provision of liquidated damages in the contract would not prohibit the grant of specific performance or injunction.

43. The undisputed facts before this Court are that the parties had entered into a facility and use agreement on 5th January, 2005 for a period of two years commencing from 1st January, 2005 till 31st December, 2006. In Clause N of this agreement, the plaintiff had the unilateral right to seek renewal of the lease which was exercised by the plaintiff by its letter of 27th October, 2006. Such option having been exercised, nothing further remained to be done by the plaintiff except that the Lesser was required to effectuate a 20% enhancement in the bi-annual lease amount. This amount has also been tendered by the plaintiff Along with his letter of 27th October, 2006.

44. The plaintiff has pointed out that it had notified the defendant that the agreement between the parties having been renewed, it was going ahead with its schedule. Several steps appear to have been taken by the plaintiff on the basis of this renewal.

45. The plaintiff has placed reliance on communications dated 4th January, 2006, 14th February, 2006, 14th September, 2006 and 10th October, 2006 wherein the plaintiff had been pointing out to certain difficulties being faced on account of failure of the defendants to abide by the terms of the contract.

46. The plaintiff also places reliance on Clause B(iii) and L(viii) of the agreement dated 5th January, 2005 whereby loss of hours due to the airbus being provided late was to be added to the lease period. The plaintiff has submitted that despite requests to the defendant to make available the log books for completion of this period, the same have not been furnished and have not even been placed before this Court. The plaintiff sent a reminder of the letter dated 19th October, 2006 to the defendant on 27th October, 2006 whereby the defendants were clearly informed that the agreement was being treated as renewed and the plaintiff was going ahead with all arrangements and commitments in continuity of the agreement dated 5th January, 2005.

47. The plaintiff has placed reliance on lease deeds entered into by it in respect of the

premises which were to be used as hostels for its trainees for the purposes of training on the aircraft fuselage in question for the extended period.

48. It is an admitted position that the defendant for the first time wrote to the plaintiff only on 18th December, 2006 informing it that the agreement cannot be extended or renewed and raising other demands.

49. In the reply dated 20th December, 2006, the plaintiff clearly informed the defendant that it had exercised its option in view of the term in the contract and that the defendant had no option to refuse to renew or extend the lease. It was further pointed out that the plaintiff had spent crores of rupees in the electronic and print media to advertise availability of the airbus A-300 training facility. This training stood promised to thousands of its students in 65 centres across India. The plaintiff had also made the same representation in all its promotional materials including the prospectus, brochures, pamphlets etc pointing out with regard to availability of such training after due notice to the defendant.

50. The copy of the brochures printed by the plaintiff placed before this Court contains its course content which includes training inside a leased real airbus A-300. The plaintiff has stated in its brochures that it is the only institute in the world to have such a facility.

51. It thus appears that the course and training imparted by the plaintiff contains training inside the airbus A-300 as its integral part which has to be essentially undergone by each student in order to obtain the qualification of BTEC Higher National Certificate awarded by EDEXCEL of the United Kingdom. Thus, refusal to renew the contract would jeopardise the career of thousand of students as well as their future prospects and lead to litigations.

52. The plaintiff has set up a case that this airbus fuselage is the only fuselage available anywhere in India and no other fuselage would be available. This position is not disputed by the defendants. Certainly this facility would certainly fall within the definition of not being the ordinary article of commerce and being of special value and interest to the plaintiff falling within the expression of such unique item in Explanationn to (ii) (a) of Section 10 of the Specific Relief Act, 1963.

53. In this background, it cannot be disputed that the plaintiff has made out a prima facie case for grant of ad interim protection and that award of damages would not be a complete or adequate remedy or relief. Several young trainees have opted to do the course conducted by the plaintiff in the above factual background and there is no reason at this stage to disbelieve the plaintiff's contention that it has expended substantial funding on the same. Certainly there is substance in the plaintiff's apprehension that it would be exposed to civil as well as criminal liabilities for not providing such training which would ruin the reputation and business of the plaintiff. The plaintiff is acted in good faith and would certainly suffer irreparable loss and damage in case interim protection is not granted. Undoubtedly, denial of the interim relief may cause a situation to emerge whereby the main suit itself may be rendered infructuous. Such considerations have weighed with the courts in granting ad-interim protections.

54. My attention has been drawn to pronouncements reported at MANU/WB/0044/2005 : AIR2005Cal274 Kalidas Sadhu v. Sushil Kumar Agarwal; MANU/SC/0314/2004 : AIR2004SC1975 Deoraj v. State of Maharashtra and Ors.; 638 2 N.W. 214 : 2002 App. LE 91 Metropolitan Sports Facilities Commission v. Minnesota Twins Partnership in support of the submission that the facility use agreement was a special type of commercial relationship in which an unhindered and absolute right to use the aircraft fuselage was created in favor of the plaintiff. Based on such right, the plaintiff had established its business on huge expenditure and investments and created third party rights as well. Such contract was clearly distinguishable from ordinary commercial agreements involving

mere sale and purchase of goods or services. I find that in Metropolitan Sports Facilities Commission, the court was concerned with an agreement to use a stadium in favor of the plaintiff. The court granted an injunction in favor of the plaintiff which was upheld by the appellate court.

55. So far as stipulations as to time giving an option for renewal are concerned, in MANU/SC/0263/1968 : [1969]2SCR236 Caltex (India) Ltd. v. Bhagwan Devi Marodia, it was held that at common law stipulations as to time in a contract giving an option for renewal of a lease of land were considered to be of the essence of the contract even if they were not expressed to be so and were construed as conditions precedent. Equity followed the common law rule in respect of such contracts and did not regard the stipulation as to time not being of the essence of the bargain, the reason being that a renewal of a lease is a privilege and if the tenant wishes to claim the privilege he must be so strictly within the time limited for the purpose. A lessee not having exercised the option of renewal within the time limited by the Clause is not Therefore entitled to a renewal. Where no time is however, fixed for the purpose, an application for renewal for the lease may be made within a reasonable time before the expiry of the term. However a delay on the part of the lessee to apply for renewal arising by mere neglect on his part and which could have been avoided by reasonable diligence will not entitle a lessee to claim renewal.

56. Undoubtedly, injunctive relief based on a contract would require to be co-extensive with the terms of the contract. In the instant case, the plaintiff has set up a case of it having exercised the option to renew the agreement with the defendant in terms thereof. The original agreement was for a period of two years which as per Clause B(i) was to be in force from 1st January, 2005 to 31st December, 2006. The plaintiff was required to exercise the renewal option before 31st of October, 2006 in terms of Clause N which it did. A reminder was also admittedly sent on 27th of October, 2006. The period after renewal would run from 1st January, 2007 till 31st December, 2009.

57. Deprivation of this fuselage for effectuating its training programme would as a result jeopardise the training imparted by the plaintiff and Clause irreparable loss and damage to its business. It has been pointed out that the same would render the trainees illegible for the prescribed certification from the institute in the United Kingdom.

58. The plaintiff has sought to urge that the airbus is a thing attached to the earth which would require to be treated as immovable property. In the light of the view which this Court has taken, at this stage it is not necessary to decide on this issue which is left open for consideration after evidence is recorded in the matter.

59. In view of the stand of the defendant before this Court, it is necessary to examine the case law relied upon by the plaintiff in support of its submission that the agreement dated 5th January, 2005 is a license agreement and not a lease. In the view I have taken renders it unnecessary to consider the submission of the plaintiff with regard to fuselage being attached to the ground and the consequences thereof. This aspect may arise for consideration at the time of final adjudication of the claims of the parties. For the same reason, the judicial precedents on the issue that a lease agreement in respect of Immovable property require registration are irrelevant for the purpose of consideration of the present application.

60. It may be noticed that the conduct of the defendant in not making available the log books and not even disclosing the same on the record of the case and its belated response to the letter dated 19 October, 2006 and the reminder dated 27th October, 2006 of the defendant shows that the defendant has not acted bonafide.

61. In view of the above, I am of the view that the plaintiff has made out a prima facie case for grant of injunction. Balance of convenience, interest of justice and equity are

clearly in favor of the plaintiff who has exercised the option to renew the agreement between the parties in the manner envisaged in Clause N of the agreement dated 5th January, 2005. However the plaintiff cannot be granted any interim relief without compliance of the stipulation to make payment to the defendant of the contracted amount.

Consequently, this application is allowed subject to payment of the enhanced amount by the plaintiff to the defendant with effect from 1st January, 2007 in terms of Clause N of the agreement dated 5th January, 2005. The arrears in terms of the orders passed today shall be paid to the defendant within a period of four weeks from today. The month by month payment shall be paid to the defendant on or before the 10th day of each English calendar month. is No. 14436/2006 is allowed and the defendant is restrained from interfering or obstructing usage of the stationery airbus by the plaintiff on the terms and conditions stipulated in the agreement dated 5th January, 2005 till 31st December, 2009 or the date of final adjudication in the suit, whichever is earlier.

As a consequence, is No. 558/2007 shall stand dismissed.

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