Dr.Abhishek Manu Singhvi, Sr.Advocate and Mr.Sanjay Jain, Sr. Advocate with Mr.S.K. Bansal,Mr.Tarun Singla and Mr.Ajay Amitabh Suman, Advocate. v. Babbar Wreckers Pvt.Ltd.& Anr.

1. Whetherthe Reporters oflocal papers may be allowed to see thejudgment? v

2. To be referred to the Reporter or not? Y

3. Whether thejudgmentshould be reported in the Digest?<- FAO(OS)No.195/2009 Page[1] of[7] 2009:DHC:13259-DB c JUDGMENT:MUKUL MUDGALJ.

1. This appeal challenges the ex-parte order of the learned Single Judge dated 4^*^ May,2009in Civil Suit(Original Side)NO. 803/1999 and lA No.5916/2009 under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short 'CPC'). The respondent no.l had filed a suit against the appellants for specific performance and permanent injunction restraining the appellants from infringing the plaintiffs copyright, committing breach of confidence and for rendition of accounts in respect of a supply order 286 LRVs (Wreckers) received by it from the Union of India.

2. The case setup by the respondentno.1 in the plaint wasthat the appellant no.l was not lifting the delivery of the vehicles though the respondentno.l's unitto be installed on the appellant's vehicles were ready. The plaint was founded on the exclusive

I. ownership,ofthe copyright ofthe wrecker unit to be installed on the vehicles by the respondent no.l. The learned Single Judge,at FAO(OS)No.195/2009 Paaelof? L I iT the ex parte stage formed a primafacie view and restrained the appellant no.l to 3 from using the drawings of the plaintiff to make stipply of LRVs (Wreckers) to respondent no.2 found fabricated as per the said drawings upon the cancellation of the. appellant's licence. The appellants have come up in appeal and according to it them impugned order has effectively decreed the suit on the first date ofhearing by ordering specific performance, of the contract, which the plaintiff claims exists in its favour, inasmuch as by grant of an injunction, the respondent no.l is in fact asking for specific performance ofthe contract, ofit with the appellant, as per which contract the appellant no.1 had promised to take 50 wrecker units to the respondent no.l to be installed on the vehicles ofthe appellantfor supply to the Union ofIndia. The appellant states that such relief ofinjunction is barred by Section 14(a)ofthe Specific Relief Act, 1963 read with Section 41(e)of the said Act inasmuch as if there was a breach of contract as alleged by the respondentno.l,the same could be compensated by money, which relief the respondent no.l/plaintiff has claimed, therefore, in such a case, the respondent no.l is disentitled to FAOIOS)No.195/2009 Page3of[7] c; specific performance and injunction underthe aforesaid provisions ofthe Specific ReliefAct.

3. After notice,Dr. A.M.Singhvi and Mr.Sanjay Jain learned Senior counsel for the appellants and Mr. A.S. Chandioke and Mr. J.P.Sengh learned Senior counsel for the respondent, were heard. During the course of hearing, the appellant had made certain suggestions which in our view would amply meet the interest ofjustice while protecting the interest of the respondent no.l which may be available at the interlocutory stage. The suggestions made bythe appellantis as under:- "1. DGQA have already inspected materials/components for all 286 wreckers offered by appellant No. 2 and has given clearance (refer clearance certificate and page No.703).

2. Now as. per norms of R-2, R-2 will not make fresh inspection ofmaterial/components which may be offered by R-1.

3. So it will help nobody ifappellants are directed to consume 50 wreckers ofR-1 for this order.

4. Appellants offer to consume 22 units of R-1 against the order which A-1 has received from Border Security Force, bonafidely, believing that 50 wreckers are fully ready with R-1 as on date as claimed by R-1.

5. For remaining 28 wreckers A-1 undertake to consume against the next order which A-1 may receive. For this A-1 imdertake to give priority to R-1 forthese 28 units/wreckers againstany other vendor. FAO(OS)No.195/2009 Page4of[7] 'C

6. Regarding money - for 22 units for which appellants will place purchase orderimmediately on R- 1 as per order ofESF and for 28 units, appellants are ready to secure R-1,in any way the Court directs(not by paying to R-1 directly, but by way furnishing bank guarantee or in any other form of security to be deposited in Court.)"

4. In our view the suggestion made is just and fair because it provides for payment as per the practice, upon clearance jfrom the Union ofIndia,after installing ofthe wrecker units on the vehicles given to the appellant by the respondentno.1. Thus,a provision is made that for the installation of 22 units, the respondent no.l would be paid for immediately out ofthe 50 units contracted for but even for the future orders of28 wrecker units,the respondent no.l is fully protected as appellant had gone to the extent of furnishing the bank guarantee for the price payable to the respondent as per the contract upon receipt of any further orders by the appellant. In our view the offer of the appellant amply r '} ^ protectsthe interests ofboththe parties.

5. Accordingly, suggestions 1 to 6 as given by the appellant are accepted by this Court and we hold the appellants bound by the same. The appellants or any one ofthem are bound to firmish FAO(OS)No.195/2009 Page5of[7] o Bank Guarantees in terms oftheir suggestion no.6 within a period oftwo weeks from today and which when filed shall be placed before the Registrar General for scrutiny and acceptance. In addition, we clarify that the injunction qua the copyright claimed by the respondent no.l shall continue until the application filed under Order 39 Rules 1 and 2 filed by the respondent no.l and under Order 39 Rule 4 proposed to be moved by the appellant within two weeks from today shall be disposed of, preferably on or before 31®^ August,2009.

6. We make,it clear that the interim order in respect of. copyright protection available, will not be available in respect of the 286 units to be supplied to the respondent no.2 under the existing contract and for 50 units for which we have already passed this order but with respect to further manufacture, copyright shall subsist as claimed by the respondent no.l until the ( ^ disposal ofthe applications under Order 39 Rules 1 and 2ofthe plaintiffrespondent no.l and the application proposed to be moved by the appellants/defendants under Order 39 Rule 4. The appeal is allowed to the extent indicated above and stands disposed of. FAOIOS)No.195/2009 Page6of[7] 0^- T