M/s.Sauter Race Technologies Private Ltd. v. M/s.Tidel Park Coimbatore Ltd.

order of this Court dated 18.12.2009 made in O.A.No.1179 of 2009 inC.S.No.1018 of 2009 praying that this Hon'ble Court be pleased topass an order of ad interim injunction restraining the 1st respondentfrom anyway permitting the 2nd respondent to do any work covered bythe agreement dated 14.10.2009 pertaining to the Integrated BuildingManagement System Works entered into between the 1st Respondent and2nd Respondent pursuant to the alleged letter of ward dated25.09.2009 Ref. TPCL/IBMS/2009 issued by the 1st Respondent to the2nd Respondent relating to tender dated 18.05.2009 for integratedbuilding management systems works in construction of building complexof information technology park at Villankurichi (SEZ area) Coimbatorepending final disposal of the Civil Suit No.1018 of 2009.For Appellant: Mr.T.V.Ramanujan Senior Counsel for Mr.P.J.RishikeshFor Respondents: Mr.G.Masilamani Senior Counsel for M/s.King & Patridge for R1 Mr.V.T.Gopalan Senior Counsel for M/s.M.G.Rajeswari for R2JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This intracourt appeal challenges an order of the learned SingleJudge of this Court made in O.A.No.1179 of 2009 whereby the requestof the appellant/plaintiff for an interim order of injunction wasdenied.2.The facts and circumstances, under which the instant appealhas arisen are as follows:(a) The appellant as plaintiff filed a suit in C.S.No.1018 of2009 for declaration that the agreement entered into between thefirst defendant and the second defendant on 14.10.2009 is null andvoid and also for a permanent injunction to restrain the firstdefendant from permitting the second defendant to do the workpursuant to the said agreement alleging that pursuant to the tenderscalled for by the first respondent, the appellant and the secondrespondent participated in the tender process. The entire processconsists of three stages namely (i) opening of EMD; (ii) evaluationof the technical cum prequalification; and (iii) price bid. Theplaintiff has followed and satisfied the conditions as prescribed in https://hcservices.ecourts.gov.in/hcservices/ the tender documents. After declaring the plaintiff as the lowestbidder, the first respondent called upon the plaintiff to attend anegotiation meeting. In that meeting, one of the officials of thefirst respondent raised a query whether a Sony CCTV system could beprovided for the video streaming instead of Indigovision CCTV offeredby the plaintiff. The plaintiff sought time. (b) It was further alleged that the procedure followed by thefirst respondent is in violation of the tender conditions. Theappellant sent number of communications, but was always kept in dark,and hence, they invoked the provisions of RTI Act and sought answersto several questions. But the first respondent has not responded.In the meanwhile, the first respondent awarded the contract in favourof the second respondent, and it was out of collusion between them.Thereafter, the appellant filed a suit in C.S.No.964 of 2009 for amandatory injunction. The second respondent is not even qualified toparticipate in the tender itself. The second respondent, a foreigncompany, participated in the tender without a branch office in India.Apart from that, the second respondent has not fulfilled the tenderconditions. Under the circumstances, the balance of convenience is infavour of the appellant. Under the circumstances, the appellantfiled an application for interim injunction.(c) The opposite party was given an opportunity for filing theircounter. Accordingly, counter affidavits were filed.(d) The learned Single Judge on enquiry, dismissed theapplication. Hence this appeal has arisen before this Court.3.Advancing arguments on behalf of the appellant, the learnedSenior Counsel Mr.T.V.Ramanujan would submit that the secondrespondent was not even qualified to participate in the tenderprocess; that the mere averment in the affidavit that the seconddefendant has got a branch office in India is not at all sufficient;that even in an interlocutory application, averments and statementsmade in affidavits must be supported by documents; that by allowingsome a company namely the second respondent, which is not at allqualified to participate in the tender, the first respondent hascommitted a fraud on the tender conditions with an intention tonullify the bonafide rights of the lowest bidder namely theappellant; that apart from that, FEMA regulations have been violatedby the respondents; that the contract awarded to the secondrespondent, is against the provisions of Sec.23 of the IndianContract Act; and that it is pertinent to note that it was always thevendor's prerogative to select the design, size and the quantities ofthe servers; that even the second respondent has also provided onlyone server with required storage for 90 days. https://hcservices.ecourts.gov.in/hcservices/

4.Added further the learned Senior Counsel that there was noinconsistency in the statements made by the appellant on the makes ofthe CCTV and price implications; that the appellant offered makes ofIndigovision and GE as per their letter dated 2.7.2009, which wasvery well within the scope of the tender conditions; that the firstrespondent has not responded to the letters addressed by theappellant; that in fact, the second respondent has violated Clause 23of Part-1A of the conditions of contract; that the supply andinstallation of IBMS works can be started only after the buildingworks including the civil works are completed; that even as ontoday, the building has not been completed; that under thecircumstances, interim injunction should have been granted; thatinterim injunction if granted would not affect anybody's right norwould prejudice the respondents; that in such a situation, the Courtshould have interfered into the matter for granting an injunctionsince the decision of the first respondent in awarding the contractin favour of the second defendant is unreasonable; that the balanceof convenience is always in favour of the appellant and hence theorder of the learned Single Judge has got to be set aside.5.The learned Senior Counsels Mr.G.Masilamani and Mr.V.T.Gopalanappearing for the respective respondents in their sincere attempt ofsustaining the order of the learned Single Judge, have made theirsubmissions.6.This Court paid its anxious consideration on the submissionsmade.7.As could be seen above, the plaintiff filed the suit seeking adeclaration that the agreement dated 14.10.2009, pertaining to theIntegrated Building Management System Works entered into between thefirst defendant and the second defendant pursuant to the letter ofaward dated 25.9.2009, relating to the tender dated 18.5.2009, isnull and void and also consequential permanent injunction to restrainthe first defendant from in any way permitting the second defendantto do the work pursuant to the said agreement. Pending the suit, theinstant application was filed by the plaintiff seeking an interiminjunction against the first defendant from permitting the seconddefendant to do any work covered under the said agreement dated14.10.2009. In other words, the interim injunction asked for in theinterlocutory application was in the line of the consequential reliefasked for in the main suit.8.Admittedly, the first defendant for construction of the stateof the art IT park with built up area namely 161500 sq. m. in IT SEZarea at Vilankurichi, Coimbatore, called for the internationalcompetitive tender for providing Integrated Building ManagementSystem Works. The scope of work included monitoring and control ofutility systems and safety and security systems. Accordingly, itcalled for tender on 18.5.2009, and in total eight companies https://hcservices.ecourts.gov.in/hcservices/ including the plaintiff and the second defendant, participated in thetender process. The plaintiff furnished the earnest money deposit ofRs.7 lakhs vide a bank guarantee which was a pre-requisite toparticipate in the tender process. Following the tender noticepublished on 11.5.2009, the pre-bid meeting was held on 3.6.2009.The last date for submission of tender document was 19.6.2009. Theplaintiff and the second defendant had submitted their tenders withinthe stipulated time. On 9.7.2009, the tender evaluation meeting washeld. Following the same, a letter dated 12.8.2009, was sent by thefirst defendant to the plaintiff communicating that the price bidwill be opened on 14.8.2009 at 10.00 A.M. Accordingly, on that date,the price bid was opened, and the first defendant sent a letter on21.8.2009, to the plaintiff calling upon it to attend the evaluationmeeting on 27.8.2009. There was a board of directors meeting of thefirst defendant on 28.8.2009 wherein a decision was taken that theplaintiff's bid was not acceptable on technical grounds. Thereupon,the first defendant called the second defendant, the next lowesttenderer, on 14.9.2009, and had discussions with him. Pursuant tothe negotiation, the second defendant reduced the price so as to putit in par with the plaintiff's price. Accordingly, the contract wasawarded to the second defendant. There were exchange ofcommunications between the parties, and finally, the plaintiff filedthe suit before the Court on 12.11.2009.9.Though an application for interim injunction was filed alongwith the suit, notice was issued, and both the defendants enteredappearance and filed their respective counters. The learned SingleJudge took the view that it was not a fit case where interiminjunction could be granted. 10.From the submissions made by the learned Senior Counsel forthe appellant, it could be seen that the second defendant is aforeign company which was not having a branch in India, and so longas the second defendant was not having a branch in India, it was notcompetent to get the contract, and hence the first defendant shouldnot have awarded the contract in favour of the second defendant, andthus, the contract itself was illegal. It could be further seen thatthough there were exchange of communications, the plaintiff was keptin darkness in respect of the award of contract in favour of thesecond defendant which would be indicative of the malice and also thefraud committed by the first defendant; that by awarding the contractall the legal formalities and procedures have been bypassed; that theawarding of the contract was in utter violation of Sec.23 of theIndian Contract Act and also FEMA regulations; that despite the factthat the plaintiff sought for information under the provisions of theRight to Information Act, the first defendant did not give any replywhich would clearly indicate that there was no transparency at all;that even the reply given belatedly was so bald; that was intended toprevent the plaintiff from approaching the Court and obtain the legalremedies, and hence it was to be restrained. https://hcservices.ecourts.gov.in/hcservices/

11.On the contrary, the defence plea before the learned SingleJudge and equally here also is that the plaintiff has not made out aprima facie case or shown balance of convenience in its favour forgetting an interim relief; that there were laches on the part of theplaintiff which would suffice to deny the interim injunction soughtfor; that apart from that, if the conduct of the plaintiff is lookedinto, it would be quite clear that it was not a fit case where theplaintiff can seek for interim injunction or the relief of interiminjunction could be granted in its favour; that there was noviolation of any one of the provisions of law either the Contract Actor FEMA Regulations or RTI Act in awarding the contract by the firstdefendant in favour of the second defendant; that during the relevanttime, the second defendant, a foreign company, had sufficientexperience in the field and was also having number of branches asstated in the counter; that apart from that, as per the FEMAregulations, it has to establish a branch in India provided it hassecured a project in India; that the bid of the plaintiff was notfound acceptable on technical grounds; that the plaintiff was notentitled for the relief of interim injunction also on the ground thatall the contentions raised by both sides could be decided only onappreciation of evidence to be adduced by both sides at the time oftrial and not at this stage; that the work under the contract awardedto the second defendant is nearing completion and the inauguration isscheduled according to the completion of work on or before 31.3.2009;that the inauguration is scheduled to take place in the first week ofApril 2010; that under the circumstances, the balance of conveniencewould be in favour of the defendants by refusing to grant interiminjunction; that apart from all the above, if the plaintiff's casewas finally accepted by the Court at the time of trial, the plaintiffcould be well compensated by awarding damages, and in suchcircumstances, it was not a fit case for granting interim injunctionand hence, it should be refused.12.At the outset, it has to be pointed out that it is a suit fordeclaration that the agreement entered into between the firstdefendant and the second defendant dated 14.10.2009, pursuant to theletter of award dated 25.9.2009, relating to the tender dated18.5.2009, was null and void and also for a consequential permanentinjunction to restrain the first defendant from permitting the seconddefendant to do any work under the said agreement. Thus, theplaintiff has not sought for any relief on the strength of the tenderplaced by the plaintiff. Even if the reliefs asked for by theplaintiff were to be granted, fresh tenders were to be called for fordoing the said work, and the plaintiff could also participate alongwith others in the tender auction after following the proceduralformalities. Hence, it can be stated that the suit itself with theconsequential relief of such an injunction in the line of which theinterim relief is sought for, is to maintain the status-quo on thefervent hope that the plaintiff might get the contract in its favourin future. Since the plaintiff has not asked for any relief in its https://hcservices.ecourts.gov.in/hcservices/ favour, it would be quite evident that the intention of the plaintiffin filing the suit and asking for a consequential relief is to stallthe entire construction work.13.Admittedly, the tender notice was published on 11.5.2009followed by a pre-bid meeting on 3.6.2009. Both the plaintiff andthe second defendant submitted their tender documents in time.Tender meeting was held on 9.7.2009. Following the communication tothe plaintiff, the price bid was opened on 14.8.2009. A negotiationmeeting was convened on 27.8.2009. Admittedly, the plaintiff alsoparticipated in that meeting. At the time of that meeting, thesecond defendant sought for revising its offer to installINDIGOVISION CCTV by Sony. The plaintiff informed the firstdefendant that if they were to be done, it would result in increasein price. The next day, the Board of Directors when they met,decided that the plaintiff's bid was not acceptable on technicalgrounds. From the available materials, it could be seen that theprice bid has taken place at the third stage following the firststage namely opening of the EMD, and the second stage namely theevaluation on the technical cum prequalification bid to assess thebasic prequalification criteria and the queries in the bid document.Thus, the final stage in that process was the price bid in which thebidders were to satisfy the basic prequalification criteria, and theyhave substantially responded to the queries. If it was satisfied,only then the contract could be given in favour of that bidder. Theplaintiff has sent a communication on 27.8.2009, wherein it is statedas follows:"Thank you for inviting us for techno commercialdiscussions today. As explained during the discussions, wehave offered Indigovision CCTV system, which uses state ofart H.264 compression technology. This helps in effectivetransmission of video streaming and saving in the serversand the storage without compromising the quality andresolution at continuous recording. As desired by you, if alternative vendor Cameras are to beoffered, there will be a change in the requirements ofsoftware and servers. In case if you need any specificmake cameras, we need to look at the entire requirement ofservers and software, which will have a price implication."14.As pointed out by the learned Senior Counsels for therespondents, the first respondent was sticking on to thespecifications made in the tender documents; but, the appellant wasto make a deviation therefrom. It is also quite evident from theabove communication that there will be price implication if they needany specific cameras. Under the tender conditions, it was specifiedthat the system should support the ability to provide continuousbackground recording from any camera managed by the system. But, the https://hcservices.ecourts.gov.in/hcservices/ representatives of the plaintiff informed to the Committee that therewas no provision for 24 Hrs x 7 days continuous recording in casethere was no movement in the coverage area in the make offered bythem. No doubt, this was also contrary to the tender conditions. Onthe next day, when the matter was placed before the Board, they didnot give acceptance to the plaintiff's offer since the bid made bythe plaintiff, was not in accordance with the technologicalspecifications and have rejected the same. 15.The contention put forth by the learned Senior Counsel forthe appellant that all attempts were made by the officials of theplaintiff to satisfy the requirements of the first defendant, in theconsidered opinion of the Court, cannot be accepted. It is true thatthe plaintiff came forward to provide CCTV System with art H 264;but, that was not the requirement of the first defendant as could beseen from item 71(a) of the Bill of Quantity wherein it isspecifically stated that the requirement of the first defendant wasthe compression MPEG 4. Hence it would be quite evident that theplaintiff did not satisfy the specifications as found in the tenderdocuments and as required by the first defendant. Under suchcircumstances, the contract was not awarded in favour of theplaintiff. Even now, the appellant/plaintiff is unable to show thatthe plaintiff company was ready to place necessary technicalrequirements. So long as the plaintiff was unable to place thespecifications as found in the tender documents and also as requiredby the first defendant, it cannot have any grievance to ventilatethat the contract should have been awarded in favour of theplaintiff. It is not in controversy that among the tenderers, thelow cost was quoted by the plaintiff. But, since the plaintiff didnot satisfy the technical requirements as found in the tenderdocuments, the first defendant did not accept the same. 16.It could also be seen from the materials available that whenfive servers were needed with one redundancy, the plaintiff was ableto give only one server for one redundancy, and this would alsoindicate the non-compliance of the specifications in the tenderdocument. The contention put forth by the learned Senior Counsel forthe appellant that even now they are ready to provide five servers asrequired by the first defendant was after the non-acceptance of thebid. Hence, in short, it can be well stated that the plaintiff didnot satisfy the specifications in respect of the technologicalrequirements as put forth in the tender document. In suchcircumstances, this Court is of the considered opinion that theplaintiff has not sought for any relief in its favour on the strengthof the bid made by it.17.Admittedly, the plaintiff has already filed a suit inC.S.No.964 of 2009 seeking for a mandatory injunction against thefirst defendant in which the second defendant was neither a party,nor any relief was sought for against the second defendant. It is https://hcservices.ecourts.gov.in/hcservices/ pertinent to point out that a letter emanated from the plaintiff on25.9.2009, which reads as follows:"We were informed by Mr.Lakshmanan that the subject withregard to CCTV was discussed by the committee includingyour Architects and Consultants M/s. TCE after the openingof the price bid and based on their recommendation, it hasbeen decided to award the contract to the L2."18.No doubt, L2 which is mentioned therein is the seconddefendant in the present suit. From the very reading of the saidcommunication sent by the plaintiff on 25.9.2009, it would be quiteclear that the plaintiff had the clear knowledge that the firstdefendant has decided to award the contract to the second defendant.But, after a month when the said suit was filed on 28.10.2009, therewas no whisper about the decision of the first defendant to award thecontract in favour of the second defendant. The instant suit waslaid on 10.11.2009, seeking for the declaration that the contractgiven by the first defendant to the second defendant is null andvoid. It remains to be stated, at this juncture, that even beforethe filing of the instant suit, the plaintiff has got back the EMDmoney and that too without any protest whatsoever. Thus, it would bequite clear that the plaintiff who had the knowledge of the decisionof the first defendant to award the contract in favour of the seconddefendant even on 25.9.2009 itself, filed a suit for mandatoryinjunction in C.S.No.964 of 2009 on 28.10.2009, and after receivingthe EMD without protest, has filed the instant suit on 10.11.2009.All these facts would clearly be indicative of the conduct of theplaintiff. 19.In a given case like this while exercising the discretion togrant an interlocutory injunction, the Court is not only to look intothe prima facie case and balance of convenience, but also the conductof the party seeking injunction. In the case on hand, admittedly, onthe rejection of the bid made by the plaintiff, the contract has beenawarded to the second defendant. It is also an admitted position thatthe cost of the entire construction of the Tidel Park would be morethan Rs.300 crores out of which the present tender would cover Rs.6crores and odd. It is brought to the notice of the Court that themajor part of the construction work of the entire project iscompleted. It is also not in controversy that the second defendantpursuant to the contract awarded in its favour, has commenced itswork, and also the part of the work is done. In such circumstances,if an injunction as asked for by the plaintiff is granted, the entireproject will come to a halt, and no doubt, injury would be caused notonly to the first defendant, but also to the second defendant. Ontrial, if the plaintiff makes out a case that he should have beenpreferred than the second defendant, he could be well compensated interms of money. It is settled proposition of law that in a givencase, if the plaintiff could be compensated by way of damages for the https://hcservices.ecourts.gov.in/hcservices/ breach caused, injunction has to be necessarily refused in view ofthe availability of the alternative remedy. Under the statedcircumstances, the following decisions of the Apex Court wouldsquarely apply to the present facts of the case.(i) In AIR 2008 SC 2291 (MANDALI RANGANNA V. T.RAMACHANDRA), theApex Court has held thus:"21. While considering an application for grant ofinjunction, the court will not only take into considerationthe basic elements in relation thereto viz. existence of aprima facie case, balance of convenience and irreparableinjury, it must also take into consideration the conduct ofthe parties.22. Grant of injunction is an equitable relief. A personwho had kept quiet for a long time and allowed another todeal with the properties exclusively, ordinarily would notbe entitled to an order of injunction. The court will notinterfere only because the property is a very valuable one.We are not, however, oblivious of the fact that grant orrefusal of injunction has serious consequence dependingupon the nature thereof. The courts dealing with suchmatters must make all endeavours to protect the interest ofthe parties. For the said purpose, application of mind onthe part of the courts is imperative. Contentions raised bythe parties must be determined objectively."(ii) The Apex Court has held in a decision reported in AIR 1995SC 2372 (GUJARAT BOTTLING CO. LTD. V. COCA COLA CO.) as follows:"43. The grant of an interlocutory injunction during thependency of legal proceedings is a matter requiring theexercise of discretion of the court. While exercising thediscretion the court applies the following tests — (i)whether the plaintiff has a prima facie case; (ii) whetherthe balance of convenience is in favour of the plaintiff;and (iii) whether the plaintiff would suffer an irreparableinjury if his prayer for interlocutory injunction isdisallowed. The decision whether or not to grant aninterlocutory injunction has to be taken at a time when theexistence of the legal right assailed by the plaintiff andits alleged violation are both contested and uncertain andremain uncertain till they are established at the trial onevidence. Relief by way of interlocutory injunction isgranted to mitigate the risk of injustice to the plaintiffduring the period before that uncertainty could beresolved. The object of the interlocutory injunction is toprotect the plaintiff against injury by violation of hisright for which he could not be adequately compensated in https://hcservices.ecourts.gov.in/hcservices/ damages recoverable in the action if the uncertainty wereresolved in his favour at the trial. The need for suchprotection has, however, to be weighed against thecorresponding need of the defendant to be protected againstinjury resulting from his having been prevented fromexercising his own legal rights for which he could not beadequately compensated. The court must weigh one needagainst another and determine where the “balance ofconvenience” lies. [See: Wander Ltd. v. Antox India (P)Ltd., (SCC at pp. 731-32.] In order to protect thedefendant while granting an interlocutory injunction in hisfavour the court can require the plaintiff to furnish anundertaking so that the defendant can be adequatelycompensated if the uncertainty were resolved in his favourat the trial.47...... Under Order 39 of the Code of Civil Procedure,jurisdiction of the Court to interfere with an order ofinterlocutory or temporary injunction is purely equitableand, therefore, the Court, on being approached, will, apartfrom other considerations, also look to the conduct of theparty invoking the jurisdiction of the Court, and mayrefuse to interfere unless his conduct was free from blame.Since the relief is wholly equitable in nature, the partyinvoking the jurisdiction of the Court has to show that hehimself was not at fault and that he himself was notresponsible for bringing about the state of thingscomplained of and that he was not unfair or inequitable inhis dealings with the party against whom he was seekingrelief. His conduct should be fair and honest. Theseconsiderations will arise not only in respect of the personwho seeks an order of injunction under Order 39 Rule 1 orRule 2 of the Code of Civil Procedure, but also in respectof the party approaching the Court for vacating the adinterim or temporary injunction order already granted inthe pending suit or proceedings."20.The learned Senior Counsel for the appellant pointing to theprovisions of the Foreign Exchange Management (Establishment in Indiaof Branch Office or Office or other place of business) Regulations2000 (FEMA) would submit that the second defendant cannot participatein the tender auction in respect of the awarding of a contract by aGovernment Company in India unless it has a branch in India. FEMARegulations GSR 408(E) dated 8.5.2000, reads thus:"In exercise of the powers conferred by sub-section (6) ofSection 6 of the Foreign Exchange Management Act, 1999 (42of 1999), the Reserve Bank makes the following regulations https://hcservices.ecourts.gov.in/hcservices/ to prohibit, restrict and regulate establishment in Indiaor a branch or office or other place of business by aperson resident outside India, ........"21.Sec.2(c) defines 'Branch' as 'Branch' shall have the meaningassigned to it in sub-section (9) of Section 2 of the Companies Act,1956. Under Sec.3, a person resident outside India cannot establishin India a branch without prior approval of the Reserve Bank. Sec.5speaks of the application to Reserve Bank for opening a Branch orliaison (office). From the reading of the above, no doubt, it wouldbe quite clear that only by making a proper application to theReserve Bank of India and following the procedural formalities and onapproval of the Reserve Bank of India, a branch can be established bya person who is residing outside India. 22.The learned Senior Counsel for the appellant would furtheradd that since the second defendant is a foreign company, withoutestablishing a branch in India, which is a condition precedent, itshould not be awarded with any contract by the Government Company inIndia. On the contrary, pointing to Rule 5(1), the learned SeniorCounsels for the respondents would submit that it is true that'branch' shall have the meaning as assigned to it under sub-section(9) of section 2 of the companies Act 1956, since FEMA is a specialenactment, and Rule 5(i) and (ii) clearly stipulates that the foreigncompany which is awarded with the contract can establish a projectoffice in India provided it has secured a contract to execute aproject in India, and hence the establishment of a branch office inIndia by a foreign company would arise only after it secures acontract, and it is not a condition precedent. 23.After hearing both sides, this Court is of the consideredopinion that the contention put forth by the learned Senior Counselfor the respondents is acceptable. No need would arise forestablishing a branch office in India by a foreign company beforesecuring a contract. Apart from the same, it is contended by therespondents that the second defendant has got 25 years of experiencein the field and is having the branch office at Cochin, Calcutta,Hyderabad, etc. Even the plaintiff has described the seconddefendant in the proceedings as M/s.Metronic Engineering Sdn. Bhd.,having its registered office at No.2, Jalan Astaka, U8/83, SeksyenUS, Bukit Jelutong, 40150, Shah Alam, Selangor Darul Ehsan,Malaysia, represented by S.Manickavasagam, Director of MetronicEngineering Pvt. Ltd., at First Floor, Door No.2/9, 3rd Cross Street,Seethamma Colony, Alwarpet, Chennai 18. That apart, whether thesecond defendant has got a branch office or not is a triable issue inrespect of which the parties must be given an opportunity to putforth their evidence both oral and documentary. https://hcservices.ecourts.gov.in/hcservices/

24.It is contended by the appellant's side that there was abreach of the Contract Act and also FEMA Regulations. Contrarily, itis contended by the respondents' side that there was no violation ofany one of the provisions of the law, and the contract was awarded bythe first defendant to the second defendant strictly in accordancewith law. This contention of either side has got to be consideredand decided only on appreciation of evidence to be let in by theparties at the time of trial, and no decision can be taken at thisinterlocutory stage. 25.Hence, this Court is of the considered opinion that theplaintiff is not entitled for the interim injunction for thefollowing reasons:(i) There was no consensus ad idem between the plaintiffand the first defendant to indicate a concluded contract. (ii) The plaintiff has not made out a prima facie case inits favour.(iii) The balance of convenience is not in favour of theplaintiff to obtain an interlocutory injunction.(iv) The conduct of the plaintiff as stated above does notdeserve grant of interim injunction.(v) Even if the plaintiff on trial makes out a case, hecould be well compensated in terms of money.(vi) If the plaintiff makes out a case of injury or damageto him, there is an alternative remedy of damages.26.In the light of what is stated above, this Court is of theview that it is not a fit case where interim injunction could begranted. Hence the order of the learned Single Judge does not callfor any interference.27.In the result, this original side appeal fails, and the sameis dismissed confirming the order of the learned Single Judge. The https://hcservices.ecourts.gov.in/hcservices/ parties are directed to bear their costs. Consequently, connected MPis also dismissed.Sd/Asst.RegistrarDated : 25.02.2010(*) Corrected Order sd/-Asst.RegistrarDated : 02.03.2010/true copy/Sub Asst.RegistrarnsvTo The Sub Assistant Registrar, Original Side,To be substituted for the High Court, Madras.Order already despatched + 1 c.c. to Mr. P.J. Rishikesh, Advocate. S.R.No.12136.on 25.02.2010.+ 1 c.c. to Mr. King & Partridge, Advocate. S.R.No.12050.+ 1 c.c. to M/s. M.G. Rajeswari, Advocate. S.R.No.12049. O.S.A.No.12 of 2010BS (CO)GSK 25.02.2010.BVN (CO)GSK 02.03.2010.