JUDGMENT
R.C. Chopra, J.
1. This application under Order 39 Rules 1 & 2 read
with Section 151 of the Code of Civil Procedure is for
grant of ad interim injunction in favor of the
plaintiffs to restrain the defendants from placing on
board of Indian Airlines and Alliance Air Flights, their
offices and in lounges at various Airports in the
country, any other in-flight magazine except the
plaintiffs magazine named “SWAGAT”. In the course of
the arguments, however, Shri Gopal Subramanium, Sr.
Advocate for the plaintiffs has limited his prayer to
interim injunction for restraining the defendant No. 1
from putting on the flights of Indian Air Lines only the
proposed Magazine “DARPAN’ which is being printed by
defendant No. 3 for defendant No. 2, Alliance Air.
2. The facts relevant for the disposal of this
application, briefly stated, are that the plaintiffs
have filed a suit for declaration and permanent
injunction against the defendants alleging that the
plaintiffs had entered into an Agreement dated 14.5.1998
with defendant No. 1 in regard to the publication of an
in-flight Magazine titled “SWAGAT”. According to the
plaintiffs all over world an in-flight Magazine is
exclusive in character and is identified as the brand
ambassador of the concerned Airlines and as such has
exclusivity. According to the plaintiffs their
agreement of 1998 subsists up to 2004, in terms of which
the plaintiffs are printing and supplying 60,000/-
copies of the magazine “SWAGAT” to defendant No. 1 every
month for placing the same on board the flights of
Indian Airlines defendant No. 1 and the Alliance
Air-defendant No. 2. The plaintiffs are not only
supplying 60,000 copies every month free of cost but in
addition are paying a royalty also of Rs. 8,75,000/- per
month to defendant No. 1 for the privilege of exclusive
circulation rights. They are also providing free
advertising space worth of Rs. 5,20,000/- to defendant
No. 1 by giving it two full page advertisements. Under
the Agreement the ratio of the editorials and
advertising space is fixed and the only benefit that the
plaintiffs derive out of the Agreement is by way of the
advertisements which they receive for the magazine.
3. The plaintiffs allege that in or about October,
2001 they were shocked to see an advertisement in “Times
of India” by which the defendant No. 2, Alliance Air, had
issued a tender seeking bids for appointing an agency to
undertake designing and printing of its in-flight
monthly magazine. The plaintiffs made efforts to obtain
details about this advertisement and sought
clarification from defendant No. 1 also but there was no
response. In the month of May 2002 the plaintiffs
discovered that defendant No. 3 was openly interviewing
people in the travel and hospitality industry in
connection with its in-flight Magazine to be printed
for defendant No. 2 Alliance Air. It was being
represented that the said in-flight Magazine was meant
for distribution in Indian Airlines as well as Alliance
Air Flights. According to the plaintiffs the impugned
action on the part of the defendants was in violation of
the plaintiffs rights and privileges in regard to the
exclusivity of printing and circulating “SWAGAT” on
Indian Airlines flights and was in violation of the
agreement dated 14.2.1998. On 3.6.2002 the defendant
No. 3 announced the launch of its new in-flight magazine
for Alliance Air and Indian Airlines and the letters
issued by defendant No. 3 invited proposals for
advertising space in its proposed magazine. On
10.6.2002 the plaintiffs wrote a letter to the
Chairman-cum-Managing Director of defendant No. 1 seeking
clarifications on the matter but there was no response.
On 13.6.2002 and 14.6.2002 the plaintiffs wrote two more
letters to defendant No. 1. Only on 26.6.2002, a letter
was received from defendant No. 1 in which a stand was
taken that the contract between the plaintiffs and
defendant No. 1 in no way gave exclusivity of circulation
to plaintiffs magazine “SWAGAT”. The plaintiffs alleged
that the Agreement between defendants No. 2 and 3, in
regard to the printing and publication of another
in-flight magazine was in violation of the Agreement
between the plaintiffs and defendant No. 1 as defendants
had no right to put any other in-flight magazine on
Indian Airlines Flight and was aimed at causing huge
financial loss to the plaintiffs. The application under
Order 39 Rule 1 and 2 of the CPC for ad interim
injunction was also based on the aforesaid pleadings.
4. The defendants filed their written statements and
replies controverting the plea of the plaintiffs that
they had any right of exclusivity in regard to the
printing and circulation of an in-flight Magazine on
Board Indian Airlines flights. It was further pleaded
that the plaintiffs had no privity of contract with
defendant No. 2 and as such the defendant No. 2 was free
to enter into an agreement with defendant No. 3 in the
matter of printing and publishing its own in-flight
magazine. It was pointed out that defendants No. 2 and 3
had already entered into an Agreement for printing an
in-flight magazine for defendant No. 2 under the name of
“DARPAN”. It was pleaded that the in-flight magazine of
plaintiffs “SWAGAT” was being placed on the flights of
Alliance Air, defendant No. 2, without there being any
contract between the plaintiffs and defendant No. 1 in
this regard and similarly the defendant No. 2 was also
free to place on the flights of defendant No. 1, Indian
Airlines, its in-flight magazine “DARPAN”. It was
clarified that neither the number of the copies received
from the plaintiffs was being reduced nor any other
action was being contemplated which could be stated to
be in violation of the Agreement between the plaintiffs
and defendant No. 1. The defendant No. 2 and 4 pleaded
that they had no privity of contract with the plaintiffs
and as such they could not be injuncted from having a
separate in-flight magazine. It was also pleaded that
there was nothing in the agreement between the
plaintiffs and defendant No. 1 to give exclusivity to the
magazine of the plaintiffs or to curtail the rights of
defendant No. 1 or defendant No. 2 to have any other
magazine. It was stated that suit against defendant
No. 2 to 4 was not even maintainable as there was no
privity of contract between them.
5. I have heard Sh. Gopal Subramanium, Sr.
Advocate for the plaintiffs, Sh. Harish N. Salve, Sr.
Advocate for defendant No. 1, Sh. Mukul Rohtagi, Sr.
Advocate for defendants No. 2 & 4 and Sh. Arun Jaitley,
and Sh. Rajiv Nayyar, Sr. Advocates for defendant
No. 3.
6. Shri Gopal Subramanium, Sr. Advocate, appearing on
behalf of the plaintiffs has vehemently argued that the
exclusivity in favor of the plaintiffs in the matter of
the circulation of its magazine “SWAGAT” on board Indian
Airlines flights may not be explicit in the agreement
dated 14.5.1998 but it is implicit in as much as the
concept of an in-flight magazine on the flights of
airlines all over the world is based on the exclusivity
of such magazines and they are identified as brand
ambassadors of their respective Airlines. It is
submitted that the agreement between the parties and the
facts and circumstances placed on record prima facie
establish that the exclusivity was implicit in the
agreement and as such, the defendant No. 1 has no right
to permit any other in-flight magazine on board its
flights. It is submitted that the plaintiffs are not
only supplying 60,000 magazines free of cost to
defendant No. 1 every month but are paying it a huge
royalty also besides providing free advertisement space
in its magazine worth Rs. 5,20,000/-. It is argued that
all these payments and facilities being provided by the
plaintiffs to defendant No. 1 at their cost are in
consideration of plaintiffs right to attract
advertisements in their magazine “SWAGAT” and in case
another in-flight magazine is put on board of Indian
Airlines flights it would make serious inroads into the
revenue of the plaintiffs and jeopardies the economic
viability of their agreement with defendant No. 1. It is
submitted that under the circumstances, the plaintiffs
have a prima facie case for an interim relief during the
pendency of the suit by way of restraining the defendant
No. 1 from permitting the defendants No. 2 & 3 to place
their proposed magazine “DARPAN” on the flights of
defendant No. 1 Indian Airlines.
7. Shri Harish N. Salve, Sr. Advocate for defendant
No. 1 has strongly repudiated the claim of the plaintiffs
in regard to any exclusivity of rights in the matter of
the printing and circulation of an in-flight magazine on
board of Indian Airlines flights. According to him, the
agreement dated 14.5.1998 did not contain any negative
stipulation curtailing the right of defendant No. 1 to
have another in-flight magazine on board its flights.
He submits that the defendant No. 1 has already issued
instructions to defendants No. 2 to 4 not to publicise or
project that the magazine “DARPAN” being printed by them
is an in-flight magazine of defendant No. 1. He points
out that the defendant No. 1, without there being any
contract even was placing the magazine of the plaintiffs
on the flights of defendant No. 2 and as such, has a
right as well as justification to permit the defendant
No. 2 also to put its proposed magazine “DARPAN” on the
flights of defendant No. 1. It is argued that the
defendant No. 1 is abiding by all the terms and
conditions of its agreement dated 14.5.1998 with the
plaintiffs and has neither reduced the number of its
copies nor the share of editorials and advertisements
and as such, the plaintiffs cannot make any grievance in
regard to the contravention of the terms of their
agreement with defendant No. 1. It is submitted that
both, defendants No. 1 and 2, are free to have inflight
magazines of their choice for placing on board in their
flights and as such, the plaintiffs have no prima facie
case to show that they are entitled to ad-interim
injunction as prayed. Referring to para 10 of the
plaint, learned counsel for defendant No. 1 points out
that the plaintiffs have come to this Court raising
absolutely false and frivolous grounds and as such, they
are not entitled to an ad-interim injunction as prayed.
8. Shri Mukul Rohtagi, Sr. Advocate, appearing for
defendants No. 2 and 4 supports the submissions made by
learned Counsel for defendant No. 1 and submits that the
plaintiffs have no right to seek any relief against
defendants No. 2 and 4 for the reason that there is no
privity of contract between the plaintiffs and
defendants No. 2 and 4. It is submitted that defendant
No. 2 is a separate entity and was not a party to the
agreement dated 14.5.1998 between the plaintiffs and
defendants No. 1. He has drawn the attention of the
Court to the fact that the plaintiffs had come to know
about the decision of defendant No. 2 about the printing
and circulation of its in flight magazine in October,
2001 but still the plaintiffs kept on waiting and
watching and came to the Court in July, 2002 only when
the contract between the defendants No. 2 & 3 had matured
and the new magazine was ready for circulation. It is
also submitted that the new in-flight magazine of
defendant No. 2 has already been printed and its first
issue is already out.
9. Shri Arun Jaitley, Sr. Advocate, appearing for
defendant No. 3, the printer and publisher of the new in-flight
magazine of defendant No. 2 submits that
petitioners have no prima facie case in their favor.
It is submitted that the new inflight magazine of
defendant No. 2 will be promoting a healthy competition
between the plaintiffs and defendant No. 3 and as such,
the plaintiffs should not feel shy of competing with
defendant No. 3. It is pointed out that the plaintiffs
have been getting the contract in their favor without
any tenders and in violation of the guidelines
applicable to public sector undertakings. Not only
that, the plaintiffs have been enjoying undue benefit
also by way of circulation of its inflight magazine on
the flights of defendant No.2 inspite of the fact that
under the agreement dated 14.5.1998, the defendant No.1
was under no obligation to place the magazine of
plaintiffs on the flights of defendant No.2. It is
submitted its rights in the matter of having as many
magazines as it wanted for placing on board its flights
and as such, the plaintiffs have no prima facie case in
their favor. It is argued that the plaintiffs have no
cause of action against defendants No.2, 3 and 4 and as
such, no orders can be passed injuncting these
defendants. He further contends that in the plaint
itself, the plaintiffs have reserved their right to
claim damages and as such, it is a fit case in which the
plaintiffs should be left to pursue their remedy by way
of claiming damages only, if made out, in accordance
with law.
10. After considering the submissions made by learned
counsel for the parties, this Court is of the considered
view that the plaintiffs have not been able to establish
a prima facie case in regard to the exclusivity of their
right for the circulation of their magazine “SWAGAT” on
board Indian Airlines flights. Clause 3 of the
agreement dated 14.5.1998 relates only to the content of
the magazine and speaks of the exclusive nature of the
Articles to be printed therein so as to maintain an
exclusivity of the magazine but it does not suggest even
that the plaintiffs have any exclusive right to
circulate their magazine on board Indian Airlines
flights. Neither Clause (3) of the agreement speaks of
exclusivity in favor of the plaintiffs nor there is any
other negative covenant in the agreement forbidding the
defendant No.1 from having any other in-flight magazine
on its flights. The contention of learned counsel for
the plaintiffs that all over world, such magazines are
exclusive and are treated as the brand ambassadors of
their respective Airlines cannot be accepted in the face
of written agreement dated 14.5.1998 in which
exclusivity clause is conspicuously missing. This Court
does not agree with the submission that exclusivity
clause is implicit in the agreement. It appears that
after entering into the agreement dated 14.5.1998, which
had no exclusivity clause and enjoying the benefit of
having their magazine on the flights of defendant No.2
also, inspite of absence of any right in respect
thereof, the plaintiffs are now attempting to expand
their rights further without any lawful claim or justification.
11. It is also to be noticed that the defendant No.2
is an altogether separate entity with whom the
plaintiffs have no privity of contract. The defendant
No.2 has full liberty to have its own in-flight
magazine. In view of the fact that it has no privity of
contract with the plaintiffs in the matter of any
in-flight magazine the plaintiffs have no prima facie
case in their favor to claim any restraint order
against defendant No.2 in the matter of printing and
circulation of its own in-flight magazine.
12. Learned counsel for defendant No.1 has
categorically stated that defendant No.1 is neither
violating nor intends to violate any term of its
agreement with the plaintiffs and it has also already
issued directions to defendants No.2, 3 & 4 to refrain
from representing or projecting to the public as well as
tourism and hospitality industry that their in-flight
magazine is an in-flight magazine of defendant No.1. It
is pointed out that the defendant No.1 is continuing to
receive 60,000 copies per month from the plaintiffs and
would continue to place them on its flights and shall
abide by the terms and conditions of agreement to ensure
that the contract between the plaintiffs and defendant
No.1 is abided by in its letter and spirit. The
plaintiffs’ apprehension that the magazine of defendants
No.2 & 3 would eat into their advertisements and thereby
cause loss of revenue to them say have some truth but so
long the defendant No.1 is acting within the terms of
its agreement with the plaintiffs this apprehension of
the plaintiffs cannot be made a ground for depriving
defendant No.1 of its right to have on its board the
magazine of defendant No.2. The plaintiffs must get
prepared and geared up for a healthy competition with
defendant No.3 and improve the quality and content of
their magazine so as to attract more advertisements for
their magazine “SWAGAT”.
13. Under the circumstances, this Court is of the
considered view that the plaintiffs have not succeeded
in establishing even prima facie that they have any
right to injunct the defendants in the matter of
printing or circulation of the new in-flight magazine of
defendant No.2. They have also failed to establish
prima facie that they have any right of exclusivity in
regard to the circulation of their in-flight magazine
“SWAGAT” on the flights of defendant No.1.
14. Not only that the plaintiffs have no prima facie
case in their favor, it is also shown on record that
the balance of convenience is more in favor of
defendants. The defendant No.1 is acting in accordance
with the terms and conditions of its agreement with the
plaintiffs and defendants No.2 to 4, who have no privity
of contract with the plaintiffs, are exercising their
own right to go for a separate in-flight magazine for
defendant No.2 under the name of “DARPAN”. In case an
ad interim injunction as prayed is granted, the
defendants No.2 to 4, who are already at a very advanced
stage of the printing and circulating of their magazine,
would suffer extreme inconvenience and financial loss.
As such, the balance of convenience is not at all in
favor of the plaintiffs.
15. In the plaint itself, the plaintiffs have
reserved their right to sue the defendants for damages.
It clearly conveys that damages would be an alternative
remedy for the plaintiffs. This Court is of the
considered view that the under the facts and circumstances
of the case, compensation in terms of money would be an
equally efficavious remedy for the plaintiffs.
Therefore, the plaintiffs cannot be held entitled to the
grant of an ad interim injunction as prayed.
16. Before concluding, this Court may further add
that the plaintiffs are liable to be denied the relief
of ad interim injunction on the ground of latches and
delay also in as much as it is shown that in the month
of October, 2001 itself, they had come to know that
defendant No.2 was contemplating to have its separate
in-flight magazine. When the plaintiffs came across an
advertisement in the ‘Times of India’ regarding tenders
for an in-flight magazine of defendant No.2 they ought
to have come to the Court immediately and should not
have slept over the matter for months together during
which period the defendants No.2 to 4 made substantial
progress in the matter of the printing and circulation
of new magazine “DARPAN”. In the course of the
arguments, learned counsel for defendants No.2 to 4
placed before the Court the first issue of “DARPAN”
which has already been printed and is ready for
circulation. Therefore, on the ground of delay and
latches also, the plaintiffs have rendered themselves
disentitled to the discretionary relief of ad-interim
injunction as prayed.
17. In view of the foregoing reasons, this Court is
of the considered view that plaintiffs have failed to
make out a case for grant of ad-interim injunction.
Application under Order 39 Rule 1 and 2 CPC filed by the
plaintiffs, therefore, stands dismissed.
18. Nothing stated herein shall be taken as an
expression of opinion on the merits of the suit pending
before this Court as the observations made herein are on
prima facie basis only.