VINODCHANDRA HIRALAL GANDHI Vs. VIVEKANAND MILLS LIMITED

JUDGEMENT

(1.) A very short question arises in this appeal namely how far a negative stipulation can be implied in a contract of personal service. The plaintiffs own a textile mill and carry on business of manufacturing cotton textiles in the textile mill. Defendant No. 1 is a qualified technician and holds a Diploma in Electrical and Mechanical Engineering By a letter of appointment dated 14th May 1962 the plaintiffs appointed defendant No. 1 as an Electrical and Mechanical Supervisor in their textile mill on the terms and conditions contained in the letter of appointment The main terms and conditions of the appointment were as follows :-

(2.) The appointment was accepted by defendant No. 1 by putting his signature at the foot of the letter of appointment and a contract was thus entered into between the plaintiff and defendant No. 1. Pursuant to the contract defendant No. 1 started working as Electrical and Mechanical Supervisor in the textile mill of the plaintiffs. Though the period of the contract had not expired defendant No. 1 by his letter dated 24th June 1963 requested the plaintiffs to accept his resignation and to relieve him with effect from 24th July 1963. The plaintiffs however declined to accept the resignation and insisted that defendant No. 1 must continue to serve the plaintiffs in accordance with the terms of the contract. As defendant No. 1 threatened to leave the service of the plaintiffs and to join service elsewhere the plaintiffs filed Suit No. 711 of 1963 in the City Civil Court Ahmedabad praying for an injunction to restrain defendant No. 1 from serving or engaging himself directly or indirectly for or under any other person firm or company in India as Electrical and Mechanical Supervisor or in any other capacity whatever and acting in any way contrary to the terms of the contract. Immediately after filing the suit the plaintiffs took out a Notice of Motion for an interim injunction pending the hearing and final disposal of the suit and the learned Judge of the City Civil Court who heard the Notice of Motion granted such injunction subject to this modification that it would not prevent defendant No. 1 from taking up some other employment in any capacity other than that of Electrical and Mechanical Supervisor or similar post where he is required to do the same or similar work called by any other name. Defendant No. 1 thereupon preferred the present appeal in this Court.

(3.) Now obviously there is no express negative stipulation in the contract between the parties prohibiting defendant No. 1 from serving any other employer during the period of the contract. The plaintiffs however contended that there was an implied negative stipulation in the contract and they were entitled to enforce that negative stipulation by means of an injunction. Now it is undoubtedly true that unlike the English law on the subject sec. 42 of the Specific Relief Act 1963 empowers the Court to grant an injunction to restrain the breach of a negative stipulation even if the negative stipulation be not express but implied. If therefore any negative stipulation can be implied in the present contract it would be open to the Court to grant an injunction to restrain the breach of the negative stipulation if it otherwise in the exercise of its discretion thinks it fit and proper to do so. But the question is can a negative stipulation be implied in a contract such as the one we have in the present case ? Now in a sense every contract to serve a particular employer for a specified period must necessarily involve the proposition that the employee would not serve any other employer during that period but can it be said that a negative stipulation not to serve any other employer should therefore be implied in every case of a contract of personal service ? The question is a larger question for logically it must lead to the conclusion that every affirmative stipulation to do a positive thing must of itself imply a negative stipulation not to do anything inconsistent therewith. It was contended on behalf of the plaintiffs that such indeed was the position and support for it was sought to be found in Illustration (d) to sec. 57 of the Specific Relief Act 1877 That Illustration ran as follows :-