BHAVESH J BHATT Vs. CYRUS N BAXTER

JUDGEMENT

(1.) THE appellant, who is the original plaintiff, is the Principal and proprietor of coaching classes known as Sukh Sagar Classes giving tuitions to students studying in different branches of commerce, economics, costing, accountancy, maths etc. The Sukh Sagar Classes have their centres at Chowpatty, Andheri, Ghatkopar and Goregaon. The 1st respondent who is the original defendant No. 1 Cyrus N. Baxter joined the plaintiffs coaching classes in 1978. He teaches the subject of accounts Upto March 1987 there was no written agreement between the plaintiff and the 1st defendant in respect of the terms and conditions of service of the 1st defendant, who was employed by the plaintiff. In 1987, however, a written agreement was arrived at between the plaintiff and the 1st defendant. This agreement is dated 12th March, 1987. Under this agreement of 12th March, 1987 the plaintiff agree to hire the services of the 1st defendant and the 1st defendant agreed to serve the plaintiff for a period of 6 years from the date of commencement of the agreement. The agreement was to commence from 1st June, 1987 Under clause (3) of the agreement the plaintiff agreed to pay to the 1st defendant for each year of service a sum of Rs. 2 lacs or 43% of collection from the students by way of tuition fees in respect of the subjects taught by the 1st defendant, whichever is higher. The 1st defendant agreed to remain available for 12 batches per day, the batches not being of less than 50 students. Clauses of this agreement, which are material for the purpose of this appeal, are clauses (7) and (8) which are as under:

(2.) ACCORDING to the 1st defendant, on or about 27th March, 1990 he had a talk with the plaintiff to the effect that he was not satisfied with the remuneration which was being paid to him by the plaintiff. According to the 1st defendant, for the years 1987-88, 1988-89 and 1989-90 he has not been paid 43% of the collection from tuition fees received from students taking the 1st defendants subject. According to the plaintiff; he came to know on or about 29th March, 1990 that the 1st defendant was joining she coaching classes of the 2nd defendant-respondent No. 2 herein known as Deepak Commerce Classes. It seems that on 29th March, 1990 an advertisement in the Bombay Samachar appeared from Deepak Commerce Classes to the effect that Professor-Cyrus Baxter of Sukh Sagar Classes was joining Deepak Commerce Classes from the ensuing term. The plaintiff also inserted an advertisement in the same news-paper on the same day to the effect that Professor Cyrus Baxter was teaching in Sukh Sagar Classes. On 30th March, 1990 the plaintiff filed the present suit praying, inter alia, for an injunction restraining the 1st defendant from joining the 2nd defendant-classes as a professor until 31st May, 1993 as per the negative covenant in the agreement dated 12th March, 1987. The plaintiff applied for an ad-interim injunction in terms of the negative covenant which has been refused. The plaintiffs Notice of Motion for an interim injunction in terms of the negative covenant has also been dismissed by a judgment and order dated 8th June, 1990. Hence the present appeal.

(3.) IN the meanwhile the 1st defendant claims to have entered into a partnership with Deepak Mistry, the sole proprietor of the 2nd defendant under a deed of partnership dated 3rd April, 1990 for conducting coaching classes known as Deepak Baxter Classes.