SIDDHARTH MRIDUL, J. - (1.) THE present is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the said Act.) against the judgment dated 15th December, 2010 in OMP No. 742/2010 whereby the application of the Appellant under Section 9 of the said Act was dismissed.
(2.) THE petition under Section 9 of the said Act filed by the Appellant prayed for the following reliefs: "(i) stay the operation of the letter dated 25/11/2010 cancelling the contract for display of advertisement through LED screens in market areas and forfeiture of the security amount, by the Respondent MCD. (ii) direct the parties to maintain status quo in respect of the possession and operation of the 9 sites. (iii) restrain the respondent MCD from taking any steps for recovery of the impugned demand in terms of the letter dated 25/11/2010, pending the disposal of arbitration proceedings. (iv) injunct the Respondent MCD from calling any tender for remaining 41 sites till the conclusion of the arbitration proceeding. (v) pass ex-parte orders in respect of prays at serial Nos. (i) to (iv). (vi) pass such other or further order(s) as it may deem fit and proper keeping in view the fact and circumstances of the case." The facts as are necessary for the adjudication of the present appeal are that: (a) A contract was entered into between the Appellant and the Respondent for display of advertisement through 50 LED screens at selected market areas of Delhi under the jurisdiction of Municipal Corporation of Delhi (MCD), Respondent herein, for a period of five years at the monthly licence fee of '1,01,750/- per screen per month totaling up to '50,87,500/- for all the screens. In this behalf it is stated that the tender notice dated 19th March, 2009 with details of sites to be provided for setting up of the LED screens was issued by the Respondent. It is further pertinent to note that the terms and conditions prescribed by the Respondent under the heading "Terms and Conditions. itself contained the expression "under the jurisdiction of MCD.. (b) Clause 2(a) of the terms and conditions prescribed the incubation period as two months of contract whereby no licence fee was to be charged for this period. The clause further provided that payments were to be made from the third month for the actual number of screens which had been set up by then. However, from the seventh month onwards payment had to be made for all 50 LED screens. (c) Clause 5 of the terms and conditions contains description of the sites wherein it was prescribed that inspection of sites before filing of tender to be made and if required clarifications be sought thereupon. This clause debarred any objection, dispute or grievance to be raised regarding the sites after submission of tenders. (d) Clause 6 relied upon by the Appellant provided for flexibility in the contract to the effect that it was specified that there may be an increase or decrease in the number of sites and, therefore, the licence fee would accordingly be charged in relation to the number of sites available. This clause further provided that if any site was removed in public interest or for any other reason, alternate site would be provided to the Appellant by the Respondent herein. If for any other reason site was not available their licence fee/ground rent was to be remitted back according to pro-rata basis. (e) Clause 10 of the agreement provided that if payment was not made in the stipulated manner, a late fee of 2% per month was liable to be charged. It further provided that if the licence fee/ground rent are not received by the 10th of the succeeding month, the contract would be liable to be terminated. (f) Clause 16 of the said agreement provided that the LED screens would be displayed only at the allotted sites and positions as may be determined by the Respondent. Clause 28 of the agreement provided for arbitration. (g) On 4th August, 2009 consequent upon deposit of security the Respondent issued an allotment letter in respect of the 50 LED display screens and after the grant of allotment on 25th June, 2009 the parties entered into the agreement in respect of these screens. Thereafter, the Appellant states that, out of the 50 designated sites 25 sites did not fall either within the jurisdiction of the MCD or were not permitted by traffic police as violating the Supreme Court guidelines in this behalf. (h) The Appellant also states that it paid licence fee to the Respondent from 10th October, 2009 to 13th July, 2010 amounting to '2,95,07,747/-(first seven months). Since payment were not made for all the 50 sites and the cheques furnished to the Respondent were dishonoured when presented for encashment, show cause notice dated 27th October, 2010 was issued to the Appellant as to why the contract be not cancelled and the security amount not forfeited for violation of the terms and conditions of the contract. The Respondent also demanded a balance outstanding payment of '3,05,25,000/- towards arrears of licence fee. (i) A reply was filed on behalf of the Appellant through letters dated 27th October, 2010 and 28th October, 2010 wherein the Appellant stated that they were liable to pay for only the 20 operational sites. (j) The subject contract was cancelled by the Respondent vide letter dated 25th November, 2010 and the said cancellation order provided for recovery of dues within a period of three days from the receipt of the said order dated 25th November, 2008. (k) The Appellant challenged the cancellation of contract vide Writ Petition (Civil) No.8114/2010. The writ petition was disposed of on 3rd December, 2010 as the agreement between the parties contained an arbitration clause. The arbitration proceedings were invoked by the Appellant and Arbitrator has been appointed on 11th January, 2011. (l) Aggrieved by the action of the Respondent, the Appellant, thereafter, filed OMP No.742/2010 under Section 9 of the said Act praying for interim protection as set out hereinabove. Vide the impugned order dated 15th December, 2010 the learned Single Judge came to the conclusion that the Appellant had been unable to make out a prima facie case for the grant of any interim relief and thereby dismissed the said OMP. (m) Aggrieved by the dismissal of its petition under Section 9 of the said Act, the Appellant has preferred the present appeal as aforesaid. On behalf of the Appellant Mr. Ramji Srinivasan, learned Senior Counsel, first submitted that out of the 50 sites provided by the Respondent 25 sites were either not under the control of the Respondent or objections were raised by the traffic police, market associations and car parking contractors. In this behalf, it was submitted that various letters had been addressed to the Respondents enumerating the various hurdles faced by the Appellant and the objections to the sites provided by the Respondent. In this behalf the Appellant further submitted that only 9 sites could be successfully installed by the end of October, 2010 and 16 sites were under consideration at that time. With regard to the remaining 25 sites, according to the Appellant, work could not even be started due to the non- viability from technical, commercial or other reasons. It was next urged by the learned Senior Counsel appearing on behalf of the Appellant that clauses 6 and 16 of the subject contract provided for an increase or decrease in the number of sites and payment of licence fee proportionally thereto and, therefore, the impugned order fell into error in not appreciating that the Appellant could have been allowed to continue to operate the licence in respect of 9 chosen sites and not in respect of others.
(3.) PER contra, on behalf of the Respondent, Ms. Pinky Anand, Senior Counsel, submitted that Section 14(1)(c) of the Specific Relief Act specifically provided that a contract which is in its very nature determinable could not be specifically enforced, which is what the Appellant were seeking by way of the present Appeal. It was then urged on behalf of the Respondent that Section 41(e) of the Specific Relief Act categorically provided that an injunction could not be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. In this behalf the Respondent relied upon the decisions of this Court in Rajasthan Breweries Ltd.-vs.-The Stroh Brewery Company, reported as 2000(3)Arb. LR 509(Delhi) and Raj Electricals (Regd.)-vs.-BSES Rajdhani Power Ltd. reported as 142(2007) Delhi Law Times 687. It was further urged on behalf of the Respondent that the 50 sites which were the subject matter of the contract had been identified by the Appellant themselves and were all within the jurisdiction of the Respondent. It was also urged that although the agreement was entered into in the month of June, 2009 the first objection with regard to the purported non-viability of the sites were raised only in the month of December, 2009. It was lastly urged on behalf of the Respondent that if the Arbitral Tribunal came to the conclusion that the cancellation of the contract was bad, in that event, the Appellant would be entitled to damages.;