: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.319 OF 2008 IN NOTICE OF MOTION NO.3775 OF 2007 IN S.C.SUIT (ST.) NO.4072 OF 2007 Shilpa Shinde ....Appellant V/s. Ori.Defendant Samvad Video Pvt.Ltd. ....Respondent Ori.Plaintiff Mr.Simil Purohit i/b Mr.A.G. Purohit for the Appellant. Mr.R.R. Mishra for the Respondent. CORAM : S.J. VAZIFDAR, J. DATED : 7TH APRIL, 2008. P.C. : 1. By consent the Appeal from Order is heard finally at the admission stage. 2. The impugned order restrains the Appellant from working for a producer other than the Plaintiff from 21st to 28th of each month during the subsistence of the contract or till the final disposal of the suit whichever is earlier subject to certain conditions. 3. The suit is filed by the Respondent for an injunction to enforce a negative covenant. The : 2 : Respondent contends that the negative covenant arises from the following clauses in an undated agreement entered into some time in May, 2007. "2. Obligations of the Talent (a) The Talent shall provide and ensure. (b) His/Her services as Artist for the said programmes. (c) His/Her commitment of time as per the schedule fixed by producer for the smooth execution of the said programme. (d) Makes himself/herself available for the shooting for approx. 4 to 5 days per month on an average and our block date are for shooting is between 21 to 28 every month. (e) Will report for the shooting at least an hour before the commencement of the shoft and would make himself/herself available for the shoot till end of that day’s shooting." 4. It is difficult to sustain an ad-iterim order in the facts of the present case to enforce the alleged negative covenant in this contract of personal service. One of the requirements for such an injunction is certainly regarding the obligations of the parties. Clause 2-d for instance only mentions four to five days between the dates 21st to 28th of every month. It does not mandate the Appellant making herself available under the contract on every day from : 3 : 21st to 28th of every month. If, as contended on behalf of the Respondent this is an implied term, it certainly requires to be established by evidence. 5. Further there is nothing in the aforesaid clauses which requires the Appellant not to do any other work even during her free time between 21st to 28th of every month. 6. Faced with this, it was contended that the custom of the film industry is that the block dates implied such an obligation. 7. If the Respondent is relying on a custom or trade practice, it is for the Respondent to plead and establish the same. Despite repeated queries, Mr.Mishra, the learned counsel appearing on behalf of the Respondent was unable to indicate any pleading of such a custom or trade practice. 8. The balance of convenience also is in favour of the Appellant. It is the Respondent’s case in the plaint itself that it was dissatisfied with the Appellant’s work. As a result thereof, they have in fact engaged a substitute. The allegations are not merely about her looking tired, drowsy and sleepy but : 4 : even as to her performance in general. 9. It was contended that the Appellant has committed breach of the impugned order. It was further stated that in a Notice of Motion, she has been held guilty by the Bombay City Civil Court of having committed contempt of the said order. Mr.Purohit states that the appeal against that order will also be filed shortly. 10. I have not considered the rival contentions regarding the alleged contempt. That will be decided in an appropriate proceedings. Suffice it to state at this stage that the Appellant’s contention is that the contract was validly terminated and that as a result thereof the injunction ceased to subsist for the injunction in terms of the order is limited to the duration of the agreement. 11. It is clarified that this order will not come it the way of any order being passed against the Appellant including under Order 39 Rule 2-A of the Code of Civil Procedure in the event of her being held guilty of contempt. That matter will be decided on its own merits. : 5 : 12. In the circumstances, the Appellant’s remedy is in damages. The impugned order is set-aside. The Appeal from Order is therefore dismissed. The stay granted shall however, continue till 6.5.2008.