ALOK SHARMA,J. - (1.) Under challenge in this Civil Misc. Appeal under Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereafter 'the Act of 2015') is the order dated 2.11.2018 passed by the Commercial Court No.1 (District Level), Jaipur dismissing the plaintiff-appellant's (hereafter 'the plaintiff') application under Order 39 Rule 1 and 2 CPC filed with the suit for declaration and permanent injunction. Necessary facts for the disposal of this appeal are that the plaintiff and the defendant-respondent (hereafter 'the defendant') entered into a MOU dated 9.9.2008 in the first instance for a period of five years from the date specified for installation, operation, maintenance, collection and taking free of cost / supply Dry Fly Ash generated from unit 3 and 4 of Chhabra Thermal Power Plant (CTPP) extendable by 5 years on agreed terms and conditions subject to mutual agreement on price to be charged for the dry fly ash, if the government prescribed the levy of any price. Clause 2.8 and Clause 6 of the MOU dated 9.9.2008 relevant for the disposal of this appeal read as under: "2.8 RVUN/CTPP agrees to supply dry fly ash free of cost, initially for a period of 5 years from the commissioning of CTPP unit # 3 and 4 and thereafter it will be extended for a period of 5 years on the terms and conditions as agreed upon. However, at the time of extension, if the Govt. prescribes levy of any price for the dry fly ash, the price, if any, to be charged, will be mutually decided." "6. This agreement will be in force initially for a period of 5 years from the date of commissioning of CTPP unit # 3 and 4 and thereafter it will be extended for a period of 5 years on the terms and conditions as agreed upon. However, at the time of extension, if the Govt. prescribes levy of any price for the dry fly ash, the price, if any, to be charged, will be mutually decided." Pursuant to the MOU aforesaid, over the land made available by the defendant at the CTPP, the plaintiff developed a Dry Fly Ash Handling and Maintenance System prior to the defendant commissioning unit 3 of CTPP on 31.12.2013 and unit 4 on 30.12.2014. Admittedly vide Notification dated 3.11.2009 issued by MoEF Government of India, dry fly ash generated as Thermal Power Plants was required to be charged a price - the regime of its free supply coming to an end. Vide letter dated 17.8.2018, the plaintiff appears to have taken view that as the MOU dated 9.9.2008 pertaining to Unit 3 of CTPP commissioned on 31.12.2013 was to expire on 30.12.2018 and it be extended under clause 2.8 and 6 thereof for a further period of 5 years. That letter however was revoked / withdrawn on 27.10.2018 subsequent to the defendant's refusal to renew the MOU beyond 30.12.2018 qua unit 3 of CTPP on its view of Clauses 2.8 and 6 and instead stating that in terms of the Notification dated 3.11.2009 issued by MoEF requiring that Fly Ash generated by the Thermal Power Stations be sold at the best market price available, Notice Inviting Bid (for short 'NIB') for sale of Dry Fly Ash from unit 3 of CTPP subsequent to 30.12.2018 was to be issued and the plaintiff, if interested, could participate therein. It was thus the defendant's case that the plaintiff did not have an indefeasible right to extension of MOU dated 9.9.2008 beyond 30.12.2018 in respect of unit 3 CTPP as the pre condition therefor, of a mutually agreed price of the dry fly ash was absent.
(2.) The polar opposite positions taken by the defendant and the plaintiff with regard to the extension of the MOU dated 9.9.2008 for a further period of 5 years from 30.12.2018 for appropriation and use free of cost Dry Fly Ash generated at unit 3 of the CTPP entailed the plaintiff laying a suit for declaration and permanent injunction against the defendant. An accompanying application under Order 39 Rule 1 and 2 CPC for interim relief was also filed. The reliefs broadly sought in the suit inter-alia were that; a declaration be issued by the trial Court that the MOU dated 9.9.2008 was valid upto 29.12.2019; the defendant be injuncted from obstructing the plaintiff from the appropriation and use of Dry Fly Ash free of cost after 30.12.2018, upto 29.12.2019 and even beyond till the plant for the purpose so fabricated by the plaintiff for appropriation and use of Dry Fly Ash from Unit 3 (and Unit 4) was in a functioning condition; the letters dated 14.9.2018 and dated 11.10.2018 by defendant JVVNL stating that the plaintiff had no indefeasible right of extension of MOU upto 30.12.2018 and that the letter for NIB for sale of Dry Fly Ash be held to be of no legal effect and not binding on the plaintiff; the NIB No. NIB-209/2018-19SE(CA)/CTPP dated 12.10.2018 be declared to be contrary to Clause 2.8 and Clause 6 of the MOU dated 9.9.2008 and any proceedings taken thereunder against the interest of the plaintiff be held null and void; the MoEF Notification dated 14.9.1999 be held to be of no effect on the MOU dated 9.9.2008 and the subsequent Notification of MoEF issued on 3.11.2009 be held to be inoperative and not applicable on the plaintiff; Clause 2.12 of MOU dated 9.9.2008 be declared null and void against the plaintiff; it be declared that the plaintiff was an irrevocable licensee of the defendant over the parcel of land over which the Dry Fly Ash Handling and Maintenance System was fabricated and finally that the defendant be restrained from dispossessing the plaintiff from the plant for disposal of Dry Fly Ash without due process of law. In the application under Order 39 Rule 1 and 2 CPC for interim relief it was prayed that the plaintiff not be obstructed upto 29.12.2019 and even beyond 29.12.2019 and further till the plant was functional, from removal and appropriation free of cost of Dry Fly Ash generated from unit 3 and 4 of the CTPP. It was also prayed that the defendant be restrained / injuncted from acting contrary to MOU dated 9.9.2008 and also be restrained / injuncted in the interim during the pendency of the suit from acting in furtherance of its NIB dated 12.10.2018. The application for interim relief under Order 39 Rule 1 and 2 CPC was obviously opposed by the defendant on various counts including that the plaintiff had no legal right to seek the court's intervention for a declaration that the MOU dated 9.9.2008 was valid for a further five years subsequent upto 30.12.2018, and that the issue of further 5 years' extension of the MOU following the expiry of the initial 5 years effective 30.12.2018 was a matter of plaintiff's discretion which in the context of the MoEF Notification dated 3.11.2009 had been appropriately exercised for cessation of free supply as the best market price for the Dry Fly Ash through open bid / tender system was to be ascertained and dry fly ash sold thereon. It was stated that with the NIB the plaintiff could have no quarrel and it could itself freely participate therein. It was also stated that the plaintiff in the facts of the case had neither been able to make out any prima-facie case either on fact or law nor had any balance of convenience in its favour to warrant the exercise of the Court's discretion in its favour for grant of a temporary injunction and continuation of the supply of dry fly ash free of cost during the pendency of the suit.
(3.) The trial court having considered the contesting cases of the plaintiff and the defendant in the context of the conditions of the MOU dated 9.9.2008 more particularly clauses 2.8 and 6 thereof found that no case for grant of interim injunction to the plaintiff against the defendant was made out as no price for the supply of dry fly ash had been agreed. The plaintiff's application for temporary injunction under Order 39 Rule 1 and 2 CPC was accordingly dismissed. Aggrieved, this Civil Misc. Appeal has been filed. Mr. Sudhanshu Kasliwal, Sr. Counsel submitted that the order dated 2.11.2018 passed by the trial court dismissing the plaintiff's application for temporary injunction is a mechanical exercise of discretion without regard to the facts of the case in which both a prima-facie case and balance of convenience obtained for the plaintiff on a wholistic and purposeful construction of the clauses of the MOU dated 9.9.2008. Mr. Sudhanshu Kasliwal submitted that the trial court also failed to appreciate that in the context of the criticality of Dry Fly Ash for production of Cement by the plaintiff, in which business it was and for which the MOU dated 9.9.2008 had been entered into for the first place mandating only captive use of the Fly Ash, an abrupt and arbitrary discontinuation of the supply of Dry Fly Ash from Unit 3 of CTPP owned by the defendant would entail an irreparable loss to the plaintiff, which loss could not be computed in terms of money. Mr. Sudhanshu Kasliwal submitted that consequently damages were not adequate compensation for breach of the MOU dated 9.9.2008. Mr. Sudhanshu Kasliwal submitted that Clause 2.8 as also Clause 6 of the MOU dated 9.9.2008 entailed extension of the MOU for 5 years as a right for the plaintiff on such option being made. For this Mr. Kasliwal drew the attention of the Court to the language of both Clause 2.8 and Clause 6 of the MOU dated 9.9.2008 which provides that the MOU would be extended for a period of 5 years on the terms and conditions agreed upon." Mr. Sudhanshu Kasliwal submitted that the words in the two clauses above "will be extended for a period of 5 years" are reflective of the life of MOU being 10 years effective the date of commissioning of CTPP, qua unit 3 i.e. 31.12.2013 and qua unit 4 on 30.12.2014. Mr. Sudhanshu Kasliwal submitted that the mere fact that Clause 2.8 and Clause 6 both provided that at the time of extension of the MOU, in the event of the government in the meantime prescribing levy of any price for Dry Fly Ash, the price be charged by the defendant from the plaintiff as mutually decided was not a device for the plaintiff not to take steps for mutual determination of the price on the one hand, and not extension of the MOU for 5 years on the other i.e. take advantage of its own mischief. Mr. Sudhanshu Kasliwal submitted that the price to be paid for supply of Dry Fly Ash in the 5 years following 30.12.2018 was a matter to be reasonably resolved between the plaintiff and the defendant and the absence of such mutuality on the price of Dry Fly Ash could not denude the substantive right of the plaintiff under the MOU to an extension of additional 5 years subsequent to the expiry of first tranche of 5 years on 30.12.2018 qua unit 3 of CTPP. Mr. Sudhanshu Kasliwal submitted that clause 2.8 and clause 6 of the MOU dated 9.9.2008 thus consciously excluded all possibility of competitive bidding for the Dry Fly Ash generated by Unit 3 and 4 of CTPP as the supply was dedicated for a period of 10 years upto 30.12.2023 only to the plaintiff's benefit. It was submitted that in construction of clause 2.8 and clause 6 of MOU dated 9.9.2008, the rule of efficacy related to business contracts should be enforced as the defendants-RRVUNL thereby had effectively waived for ten years commencing installation of unit 3 and 4 CTPP, its right to obtain the market price during this period through an open bid process as is now in breach of contract sought to be done under NIB dated 12.10.2018. Mr. Sudhanshu Kasliwal further submitted that under its Notification dated 14.9.1999, the MoEF had conscious of the environmentally destructive effects of Dry Fly Ash generated in the production of Thermal Power provided that such Dry Fly Ash - a by product - be supplied to Cement Plant manufacturers and others free of cost for a period of ten years such that environmentally its damaging effects be dissipated and it be productively used. That was the background of the MOU and the defendant thus had agreed that the period of MOU would effectively be 10 years from the Commissioning of unit 3 and 4 of CTPP. He then argued that even otherwise the plaintiff having been permitted to set up the Dry Fly Ash Handling and Maintenance System for Unit 3 and 4 of CTPP on the land earmarked by the defendant, it became an irrevocable licensee-whose license could not be per-emptorily terminated and it dispossessed. In this context, Mr. Sudhanshu Kasliwal submitted that the defendant could not even otherwise dispossess the plaintiff from the Dry Fly Ash Handling and Maintenance System of Unit 3 and 4 and appropriating the dry fly ash available, except by due process of law. Yet it was so intended to do and hence an order of interim injunction was warranted in the facts of the case - which the trial court failed while failing to exercise its jurisdiction and discretion. Mr. Sudhanshu Kasliwal in support of his contentions in the appeal also invoked the doctrines of legitimate expectation and promissory estoppel and relied on various judgments in regard thereto. ;