Universal Business School

Cardiff Metropolitan University

Name Jayesh Garg

Course BABM5[Level 4]
Student ID ST20112433
Professor Mr. Siddhartha Bose
Subject BHL4010 Foundation of Law

Introduction
DMarkr Pvt. Ltd. (India) Vs. Mr. Zaheer Khan and Anr, has the Case in the High Court
of India in the jurisdiction of Maharashtra at the bench of Mumbai under the case given to Mr.
Ashok H. Desai the Judge of the court. The respondent No. 1 Mr. Zaheer Khan and Anr and
respondent No. 2 DMarkr Pvt. Ltd. was fighting the case and the case was on the contract given
by Respondent 2 and the Respondent 1got expired and the Respondent No. 1 dont want to sign
the further contract and Respondent No. 1 Zaheer Khan and Anr was void under the Section 27
of Indian Contract Act, formed in 1872. The final judgement of the order was released on
19.12.2003 and passed under the Appeal No. 1109/2002, 514/2003 and 1110/2003 by the
Mumbai High Court.

Facts of the Case

Respondent No. 1 was also educated according to the terms of the said assentation, before
the execution of the main transaction time frame gave in Clause 31 , he couldn't acknowledge
any offer for supports, advancements, promoting or other alliance with respect to any item or
administrations and that preceding tolerating any offer, he was under a commitment to give the
litigant in composing every one of the terms and states of such outsider and offer the appealing
party the privilege to match such outsider offer.

Respondent, by his letter dated 23.09.2003, did not deny his portrayal to the reality and the
impact that he didn't expect to name any specialist for dealing with his media issues, in any case,
illuminated that he planned to play out the subsisting assentation which had been gone into
between the appealing party and him and outsiders which would proceed past the terms of the
said understanding.

The appealing party, by its letter, cleared up its position as respects its dispute in passages 3 and
4 of letter dated 15.09.2003 and further emphasized that if respondent No. 1 was whenever amid
or after the term of the said understanding envious of designating some other individual as his
specialist for rendering administrations like the administrations rendered by the appellants under
the said assentation, respondent No. 1 was initially required to offer the litigant the privilege to
coordinate the outsider offer just in the occasion the appealing party does not practice its
entitlement to acknowledge respondent No. 1s offer on an indistinguishable terms and conditions
from the outsider offer.

It was additionally expressed that if the terms offered by the outsider really changed for such
outsider after the same had been offered by respondent No. 1 to the litigant, respondent No. 1
would be required to re-offer the overhauled terms of the outsider offer. (Lakshaman)

Argument
Analysed whether between time help could be allowed in a mediation appeal, wherein
there has been unreasonable deferral in starting the discretion procedures with respect to the
gathering looking for the break alleviation Third, it was tried to be resolved whether interval help
could be conceded against an outsider, who is not gathering to the intervention understanding.

A court may likewise concede a contingent request for between time alleviation with terms
guaranteeing that the candidate initiates assertion procedures inside a sensible timeframe.
B. Reason for an Interim Injunction Before conceding an order under segment 9(ii), the Court
must investigate whether particular type of help looked for is passable.

In the moment case, the Court investigated the lawfulness of the directive under segments 14 and
41(e) of the Specific Relief Act, 1963 Additionally, the Court noticed that point of reference on
the indicate had reliably denied particularly implement an agreement for individual
administrations where the connection between the gatherings was one of trust and certainty.

In the meantime, the refusal to concede interval alleviation to the petitioner may render a
definitive help looked for useless and the mediation procedures infructuous,16 Hence, segment 9
ought to be interpreted in a way to such an extent that a fragile adjust is struck between the
privileges of the inquirer and the rights influenced outsider by evaluating the relative bias that
would be brought about to each Vipul Jain UBS: D. Practicality of an Arbitration Petition
Against a Third Party As respects the fourth issue it was contended that the reason for an in the
assertion appeal, which was constituted by the agreement between respondent No.2 couldn't fall
inside the discretion provision and segment 9 couldn't be summoned. (Jeswant)

Judgement
Those focal issue for essentialness in this claim will be if the good about To begin
with refusal under statement 31(b) of the reasonably assentation entered under the middle of
those appealing party percept D.Markr Pvt. Ltd. And the respondent no. 1 Zaheer khan may be
void under segment 27 of the Indian Agreement Act, 1872 need been for restriction of exchange.

It might have been submitted Toward scholarly senior guidance for those appealing party - Mr.
Ashok H. Desai that the procurement for example, those straight for Initially refusal may be just
administrative and not Previously, restriction of exchange.

The over speaks were documented from those basic last judgment What's more request dated 19.
12. 2003 passed for claim no. 1109/2003 to mediation appeal to no. 514/2003 What's more claim
no. 1110/2003 in mediation appeal to no. 514/2003 Eventually Tom's perusing those division
seat of the high official for judicature at Bombay whereby the speaks documented by the
appealing party against those request of the discovered absolute judge were permitted and the
mediation request documented Toward those appealing party herein When those single judge
might have been rejected. (Verma)

Conclusion
This remark started by watching that segment 9 of the 1996 Act speaks to now seek
between time help even before the beginning of mediation procedures.

Considering the realities of this case, the enquiry ought to have stopped by then and the
appealing party's petition for between time alleviation rejected.

The Court put truck before the stallion by basically tending to the topic of whether a break order
for an agreement of individual administration could be allowed for an intervention that could
never begin: in the meantime, a unimportant enquiry into the goal of a gathering to start assertion
does not give a successful weapon to prepare for manhandle.

It is presented that the ideal arrangement is the consideration of a condition to area of the 19g6
Act commanding a restrictive request at whatever point between time alleviation is conceded
before the beginning of discretion procedures, the terms of the request will stipulate a sensible
time inside which mediation must be started.

Thirty The court may coordinate that if such strides are not taken inside the time of days
indicated under sub-segment, the break measure conceded under sub-segments and, should stand
emptied on the expiry of the said period: the postponement in taking Provided that the court may
on adequate cause being appeared for such strides, augment the said period.

Sub-segment Where a request allowing a between time measure stands emptied under esteem fit,
the court may pass such further requests as to compensation as it might segment.

" against the gathering in whose support the break measure is allowed under this.

My Opinion

This condition does not essentially limit or preclude respondent No. 1 to enter into any
agreement with an outsider however, best case scenario it gives the appealing party an
opportunity to pick up from the notices the petitioner has made during the time spent marketing
and production of the picture of respondent No. 1 which was slowly developed by the appellant.
This condition does not limit the privilege of respondent No. 1 to acknowledge any offer for
endorsement, promotion, publicizing or other association either all alone or through any
gathering in case of disappointment of the litigant to coordinate the offer of the outsider from
whom respondent No. 1 would receive any offer, respondent No. 1 would be allowed to contract
with such outsider.
The limitation put under last some portion of sub-statement on the respondent to first offer his
item Brand underwriting to the candidate on the terms offered to him by an outsider is not
concurred with a view to put a restriction on the respondent No. 1 in his opportunity of
agreement yet with a view to advance exchange, best case scenario to manage exchange.
That was an interlocutory request in which while issuing notification to the respondents, the
scholarly Judge allowed ex parte directive just against the respondent No. 1 and declined to
concede it against respondent No. 2 on the ground that respondent No. 2 was not a gathering to
the mediation assentation.
In any case, since the candidate realized that the respondent No. 1 had gone into a concurrence
with respondent No. 2 and the enthusiasm of respondent No. 2 are probably going to be
influenced in the occasion order is allowed against respondent No. 1, the applicant, made the
respondent No. 2 a gathering to the appeal to empower it to advance its case.
Exception to the rule of Restrained to Trade (Singh)

Le Passage To India Tours & Travels Vs Deepak Bhatnagar

on 20 January, 2013 (Gupta)

The defendant first converted his firm into private company i.e. M/s. Le Passage To India
Pvt. Ltd. wherein the plaintiff No.2 bought 50% shares and since the defendant wanted further
investments, the plaintiff No.2 brought a German investor who bought the balance 50% share
holdings of the defendant and 30 other shareholders.
Even as per Article 4 Clause 2 of the Share Purchase Agreement Covenant d' of the NCA
clearly notes that the defendant who was a shareholder and employee of Le Passage had acquired
extensive experience, knowledge, reputation and goodwill over the years in the travel and
tourism industry and one of the express terms on which plaintiff No.2 had purchased the shares
of plaintiff No.1 from the defendant were that after the sales of shares the defendant shall not
carry on, within or outside India, directly or indirectly, any business which competes with the Le
Passage business for the term of the agreement, since by doing so the defendant would be
affecting adversely the business of the company.
The alleged letter of employment dated 27th April, 2005 is not a letter of appointment but a letter
revising the remuneration payable to the Defendant in his capacity as Vice President of the
Plaintiff No. 1 Company and as such is not material in the present case by which the Plaintiffs
are enforcing the terms of the NCA, which were executed by the Defendant in his capacity as a
seller of business and goodwill.
The two main conditions of TUI-AG were that it would not deal with 31 different shareholders
for acquiring 50% stake in the plaintiff No.1 company and that it would buy the shares from
plaintiff No.2 after he had purchased the shares from 31 different shareholders including the
defendant and that the transferor shareholders would enter into a NCA that they would not
compete with the business of the plaintiff No.1 company.
Learned counsel for the plaintiff has stressed that in view of clause D'of the NCA and the fact
that the shares of the defendant were purchased by the plaintiff No.2 for hefty consideration, the
defendant had actually sold the goodwill of the business and had agreed not to carry on a similar
business directly or indirectly so as to adversely affect the business of the Plaintiff No. 1 by
virtue of such competition and the information which the defendant had with respect to the
business and affairs of the company by virtue of his association with the company.
Even accepting the contention of the learned counsel for the plaintiff that the defendant sold the
goodwill in the business to the plaintiff No.1 by virtue of the NCA, the defendant agreed not to
carry on within India or outside India, directly or indirectly any business which competes with
the Le Passage business for the term of the agreement since by doing so the defendant would be
adversely affecting the business of the company, the other terms of the agreement are very wide
and contrary to law and thus the agreement will have to be given a narrower construction.
The defendant, a film artist, entered into a contract with the plaintiffs, film producers, for fifty-
two weeks, renewable for a further period of fifty-two weeks at the option of the plaintiffs,
whereby she agreed to render her exclusive service as such artist to the plaintiffs, and by way of
negative stipulation not to render, during the period of the contract, such services to any other
person.
References

Bibliography
Gupta, Mukta. "Le Passage To India Tours & Travels ... Vs Deepak
Bhatnagar On 20 January, 2013". Indiankanoon.org. N.p., 2017. Web. 14
Apr. 2017.

Jeswant, Divya Anne. "Manupatra Articles". Manupatrafast.com. N.p.,
2017. Web. 14 Apr. 2017.

Lakshaman, A. "Percept D'markr (India) Pvt. Ltd Vs Zaheer Khan & Anr On
22 March, 2006". Indiankanoon.org. N.p., 2017. Web. 14 Apr. 2017.

Singh, Rohit. "Exceptions Of Agreement In Restraints Of Trade With
Reference To Indian And English Case Laws". Legalservicesindia.com.
N.p., 2017. Web. 14 Apr. 2017.

Verma, Vivek. "Percept DMarkr (India) Pvt. Ltd. V. Zaheer Khan & Anr.".
Indiancaselaws.wordpress.com. N.p., 2017. Web. 14 Apr. 2017.