JUDGMENT
S.K. Mahajan, J.
1. This order will dispose of the application of the plaintiff for the grant of an injunction restraining the defendant from interfering and/or withholding the plaintiff from broadcasting of its programme for P.M. Channel of All India Radio, Delhi in accordance with the terms of the agreement dated March 16,1998 alleged to have been executed between the parties. The facts in brief are:
That the plaintiff was broadcasting its programme on the P.M. Channel of the All India Radio, Delhi since November, 1993. In 1993 it was decided by the Ministry of Information & Broadcasting to invite private parties to take up broadcasting on the P.M. Channels by allotting various time slots for certain licence fee to be payable by them. On 13.10.1993 on an application made by the plaintiff the Government allotted to it one hour time slot every day except Friday for the city of Delhi from November 1,1993 to August 14. 1994. In terms of this licence, the plaintiff commenced broadcasting in November l993 and has been broadcasting its programme continuously since then as the licence was extended by the Department from time to time. In 1997 the licence of the plaintiff was extended only upto March 31,1998. In the meantime on 13.1.1998 the Department decided to enhance the licence fee w.e.f. 1.2.1998 from Rs.3,000/- per slot to Rs. 10,000)/- per slot for the prime time and from Rs.2,000/- per slot to Rs.4,000/- per slot for non-prime lime. On January 22,1998 the plaintiff was informed that no more
extensions beyond March 31,1998 would be granted to the plaintiff. Certain other parties were also affected by the decision of the Department not to extend their licences beyond March 31,1998 and consequently negotiations were held between the parties on March 16,1998. It is alleged that a valid and binding agreement came into existence between the parties after negotiation on March 16,1998 and the defendant, therefore, filed this suit for specific performance of the said agreement and for perpetual injunction restraining the defendant from interfering and/or withholding the plaintiff from broadcasting its programme for FM Channel of the All India Radio, Delhi in accordance with the terms of the agreement dated March 16,1998 alleged to have been entered into between the parties.
2. By order dated June 24,1998 this Court while giving time to the defendant to. file written statement to the suit as well as reply to the application for injunction, directed that there shall be an injunction restraining the Prasar Bharti from preventing the petitioner from broadcasting FM on the basis of the arrangement dated March 16,1998 until further orders.
3. Written statement was filed by the defendants stating that the plaintiff had not come to the court with clean hands. It was stated that the parties who were affected by the order of the Department in not extending their licences beyond March 31,1998 had filed a writ petition in this Court being C.W.P.No.1066 of 1998 and vide an interim order dated 3.4.1998 this Court made certain directions so as to govern the quantum of payment for the interim licence in the interregnum occasioned by the expiry of the licence on March 31,1998 and the commencement of the fresh licences subject to the result of the writ petitions. The plaintiff also paid the interim licence fee by virtue of this order passed by the Division Bench of this Court in C.W.P.No.1066/98. By judgment dated 29.5.1998 the Division Bench of this Court dismissed C.W.P.No.1066 of 1998 as well as other writ petitions which were listed alongwith that writ petition and the Special Leave Petition against this judgment was dismissed by the Supreme Court on June 1.5,1998. It is stated that as the licence fee had been paid by the plaintiff beyond March 31,1998 by virtue of the interim order passed by the Division Bench of this Court in C.W.P.No.1066 of 1998 it was fully aware of the proceedings of the said writ petition.The suit, therefore, filed by the plaintiff after the dismissal of the Special Leave Petition by the Supreme Court is stated to be a misuse of the process of law.
4. Mr. L.K.Bhushan, learned counsel for the plaintiff stated that the judgment of this Court in C.W.P.No.1066 of 1998 was not applicable to the plaintiff inasmuch as the judgment proceeded on the basis that the agreement dated March 16,1998 was signed by the petitioners in that case without prejudice to their rights and interests and with the qualification that the number of hours to come under capping be renewed and reconsidered by the All India Radio. Mr. Bhushan, therefore, submits that as the plaintiff had signed the agreement dated March 16,1998 without any protest and unconditionally there was a concluded contract between the parties in so far as it related to the plaintiff and the parties were bound by the same.
5. Division Bench of this Court in judgment passed in C.W.P.No.1066/98 observed that the petitioner in that case, namely, M/s Bennett Coleman & Co. Ltd. had signed the agreement without prejudice to its rights and interests and that the said agreement
was signed with certain reservations and no reliance, therefore, can be placed on the same. It was observed by the Court that document dated March 16,1998 which purported to be the joint agreement between all parties was merely a draft agreement. It could not fructify and reliance on the said agreement was, therefore, not warranted. “In fact, the purpose of the purported settlement dated March 16,1998 was to put an end to all litigation in respect of FM slots and obviously the aforesaid document dated March 16,1998 did not achieve this object as several proceedings were still pending.” It is also observed by the court that the agreement dated March 16,1998 was to be always subject to approval of the higher authorities, which approval was not forthcoming and in fact the court was informed by the Solicitor General that the Government was advised against the legality of this settlement purported to have been arrived at between the parties on March 16,1998.
6. Faced with these observations of the Division Bench of this Court in the judgment passed in CWP No. 1.066/98, Mr. Bhushan contends that there was no requirement of approval of the competent authority as it was not the case of the defendant that signatories to the purported agreement of March 16,1998 were not competent to sign the same and any oral agreement requiring alleged approval cannot be relied upon by the defendant in view of the written agreement. The decision of the Division Bench of the Court, according to Mr. Bhushan, is not binding on the plaintiff.
7. I am afraid I am unable to pursuade myself to agree with the contentions of Mr. L.K.Bhushan. Clause (i) of the purported agreement dated March 16,1998 reads as under:
(i) All the Licencees will withdraw all the cases pending in different Courts and MRTP Commission.”
8. It is an admitted case of the parties that inspite of this clause existing in the purported agreement of March 16,1998 certain licencees filed CWP No.1066/98, CWP No.978/98 and CWP No.979/98. Besides these petitions, a writ petition being CWP No.357/98 was filed in the Calcutta High Court and another writ petition being CWP No.564/98 was filed in the Bombay High Court. Even assuming the purported agreement dated March 16,1998 to be an agreement between the parties, the whole purpose of this agreement was, therefore, defeated as the litigation continued between the licencees and the defendant. Efforts were made to settle the matter amicably so that the maximum revenue comes to the Government and also that the disputes between the parties were settled. However, as the purpose of this purported agreement was not achieved, the Department decided to ignore the draft agreement in view of the developments and facts brought to the notice of the Department and in my view, therefore, the plaintiff cannot place any reliance on the same.
9. The purposed agreement of March 16,1998 cannot be severed amongst the parties; (1) who had withdrawn the cases in terms of the settlement; (2) who had not withdrawn cases; and (3) who did not file cases subsequent to this settlement. The agreement has to be read as a whole and it cannot be made applicable to one set of parties and not applicable to the other set of parties. The agreement was, in my view, a contingent agreement dependent on the withdrawal of all cases and that having not happened the agreement, in my view, is not binding upon the parties. Moreover, the
Division Bench of this Court having already taken into consideration all these facts and having already held that the draft agreement could not fructify and, therefore, reliance cannot be placed upon the same by the parties, in my view, the plaintiff cannot be allowed to argue that these observations are not binding upon him.
10. In a suit for specific performance of an agreement, the parties are required to be ad item on the terms of the agreement and in this case as parties to the purported agreement were not ad idem, I am prima-facie of the view that a concluded contract did not come into existence between the parties.
11. Moreover, the plaintiff waited till the earlier litigation between some of the licencees and the respondents finally concluded by judgment of the Supreme Court on June 15,1998 and filed this suit immediately thereafter in this Court during vacations and concealed from the Court the outcome of the said litigation. In my view, therefore, the plaintiff has not come to the Court with clean hands and has concealed material facts from the Court which in itself are sufficient for not granting interim relief in favour of plaintiff.
12. In view of the above, in my opinion, the plaintiff has not only not been able to establish a prima facie case in his favour for the grant of slay but has also concelated material facts from the Court and it is, therefore, not entitled to any relief in this application. The application is accordingly dismissed with Rs.5,000/- as costs. Interim order passed on June 24,1998 stands vacated.