tag:blogger.com,1999:blog-3202774368551476669.post3604161104644314593..comments2023-09-15T16:21:31.980+05:30Comments on INDIAN CORPORATE LAW: Restraining the Breach of a Negative CovenantUmakanth Varottilhttp://www.blogger.com/profile/12438677982004444359noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-3202774368551476669.post-29753309518471010802013-06-09T21:42:13.504+05:302013-06-09T21:42:13.504+05:30Hi Niranjan, It is worth look at Yogesh Radhakrish...Hi Niranjan, It is worth look at Yogesh Radhakrishnan Case on negative covenant by Delhi High Court. it is of 2013. Anonymoushttps://www.blogger.com/profile/11225812139886282808noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-22466726834756673472011-06-22T20:46:45.511+05:302011-06-22T20:46:45.511+05:30Thx a lot Niranjan for letting us know abt these p...Thx a lot Niranjan for letting us know abt these prestigious journals..Generally, how long does it take for these journals to publish the articles (of course, after acceptance)?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-14057433404693514512011-06-20T18:45:13.723+05:302011-06-20T18:45:13.723+05:30@Anonymous, the leading specialist journal in tax...@Anonymous, the leading specialist journal in taxation is the British Tax Review. The Journal of Corporate Law Studies and Company Lawyer are specialist company law journals. The finest general journal is the Law Quarterly Review - it features several articles on commercial law, and some on taxation. Lloyd's Maritime and Commercial Law Quarterly and the Journal of Business Law are also very useful for practitioners.V. Niranjanhttps://www.blogger.com/profile/08357572960266796641noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-16000053824194541382011-06-20T09:51:17.248+05:302011-06-20T09:51:17.248+05:30slightly off the topic comment. Would u mind menti...slightly off the topic comment. Would u mind mentioning some good foreign journals in the area of corporate law, tax etc?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-58212550633482844742011-06-18T18:40:21.107+05:302011-06-18T18:40:21.107+05:30Thanks for your comments. The differences between ...Thanks for your comments. The differences between Indian and English law are especially sharp when the covenant potentially infringes the restraint of trade prohibition, because it is widely thought that the Indian version of that doctrine (s. 27 Contract Act) is more stringent. Gujarat Bottling is a s. 27 case, as is Murgai, where Sen J. held that s. 27, unlike the common law principle, does not permit a reasonableness enquiry so far as post-contractual restraints are concerned - in Percept D'Mark, the Court left the question open. Shantanu has discussed the cases in detail in a recent paper, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1500192. <br /><br />In Araci, Jackson LJ acknowledged that restraint of trade is one of the "special circumstances" that may justify the refusal of an injunction, but it was common ground in the case that the particular covenant was not in restraint of trade (para 56).V. Niranjanhttps://www.blogger.com/profile/08357572960266796641noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-86929986083373064462011-06-18T00:04:13.565+05:302011-06-18T00:04:13.565+05:30If you read the judgments mentioned in my comment ...If you read the judgments mentioned in my comment above, the Indian position will be clarified further.Renu Guptahttps://www.blogger.com/profile/13605419535223237023noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-16130392203429671832011-06-15T16:44:41.697+05:302011-06-15T16:44:41.697+05:30This is an informative post. Thanks. But don't...This is an informative post. Thanks. But don't you think the Indian position is a bit different? let me cite a couple of paras from Gujarat Bottling case:<br /><br />42. In the matter of grant of injunction, the practice in England is that where a contract is negative in nature, or contains an express negative stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is equitable and thus in principle a discretionary one and a defendant cannot resist an injunction simply on the ground that observance of the contract is burdensome to him and its breach would cause little or no prejudice to the plaintiff and that breach of an express negative stipulation can be restrained even though the plaintiff cannot show that the breach will cause him any loss. [See Chitty on Contracts, 27th Edn., Vol. I, General Principles, paragraph 27-040 at p. 1310; Halsbury's Laws of England, 4th Edn., Vol. 24, paragraph 992.] In India Section 42 of the Specific Relief Act, 1963 prescribes that notwithstanding anything contained in Clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. This is subject to the proviso that the plaintiff has not failed to perform the contract so far as it is binding on him. The Court is, however, not bound to grant an injunction in every case and an injunction to enforce a negative covenant would be refused if it would indirectly compel the employee either to idleness or to serve the employer. [See: Ehrman v. Bartholomew MANU/SC/0364/1967 : (1967)ILLJ740SC .<br /><br />43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion the Court applies the following tests-(i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies. [See: Wander Ltd. v. Antox India (P) Ltd. MANU/SC/0595/1990.]Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-92162817706273881362011-06-13T23:01:37.069+05:302011-06-13T23:01:37.069+05:30Section 42 of the Specific Relief Act provides for...Section 42 of the Specific Relief Act provides for similar position under Indian law.<br /><br />Cases where negative covenants have been enforced are:<br /><br />Dirk India Private Ltd. v. Mahagenco, 2007 (5) Bom CR 207: MANU/MH/0748/2007<br /><br />Burn & Co. Ltd. v. McDonald, 31 CWN 255<br /><br />Indian Charge Chrome Ltd. v. Tata Iron and Steel Co. Ltd., (1996)1CALLT214(HC) : MANU/WB/0229/1995Renu Guptahttps://www.blogger.com/profile/13605419535223237023noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-71500305013739108692011-06-13T01:31:04.187+05:302011-06-13T01:31:04.187+05:30As an aside, did Ladbrokes or William Hill take be...As an aside, did Ladbrokes or William Hill take bets on which way the Court of Appeal would rule?Renganathhttps://www.blogger.com/profile/07911643264523245215noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-66246529376008025462011-06-13T01:29:09.875+05:302011-06-13T01:29:09.875+05:30As an aside, did Ladbrokes or William Hill take be...As an aside, did Ladbrokes or William Hill take bets on which way the Court of Appeal would rule ?Renganathhttps://www.blogger.com/profile/07911643264523245215noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-72438904026740133982011-06-11T05:26:34.455+05:302011-06-11T05:26:34.455+05:30The discussion is confined to what the foreign cou...The discussion is confined to what the foreign court has ruled.<br /> <br />A point which arises, which will be worthwhile to make a special study, is this: <br /><br />Is there any Indian court case, though cannot be cited or relied on as a ‘precedent’, which has dealt with or covered in any manner whatsoever all or any of the facets of the subject proposition; especially, in the matter of granting an 'injunction' of this kind.?vswaminoreply@blogger.com