UMESH CHANDRA BANERJEE, J.

(1) THIS stay petition is directed against an order of the learned Single Judge, confirming the earlier interim order passed in the matter.

(2) ONE redeeming feature, however, ought to be noted at this juncture that against the grant of interim order in terms of prayers (c) and (d) of the petition, the appellant herein moved this Court on an earlier occasion, but this Court did not consider it fit to pass any order and disposed of the matter with an observation that the main interlocutory application ought to be disposed of with utmost expedition.

(3) THE records depict that the matter has since been finally disposed of by the learned Trial Judge, wherein the interim order passed earlier stands confirmed and it is against the final order in the interlocutory application that mr. Anindya Mitter has moved this application for stay.

(4) MR. Mitter appearing in support of the stay application submitted in no uncertain terms that even though there exists an agreement between the parties but the same relates to specific performance of movables being ordinary articles of commerce and the terms depict that the same is for an indefinite period and does not provide for revision of price. The agreement Mr. Mitter contended has never been acted upon nor was given any effect and the Court ought not to lend its assistance and grant specific performance of the said agreement, as otherwise it could be giving effect to an onerous contract between the parties.

(5) ADMITTEDLY there exists an agreement between the parties and the appellate Court cannot possibly intervene or interfere at this stage of the proceedings, more so, when the suit is still pending disposal before this Court. As noted above, there exists a written agreement between the parties dated 1st october, 1994 and on the basis thereof the appellant has agreed and declared that he shall not sell or otherwise part with or dispose of any Manganese and iron Ore from the mine and the buyer being the respondent herein and the plaintiff in the suit, shall be the sole and the only buyer of all the manganese and iron ore from the mine during the continuance of the agreement.

(6) MR. Mitter, however, drew our attention to the factum of the rates, as has been mentioned in the agreement and submitted that the rate is so inexplicably low that the same cannot but be termed to be an unconscionable bargain which the Law Court ought not to enforce and the parties cannot possibly be ad idem on that score and the agreement cannot thus be declared to be valid.

(7) THE agreement, however, records as a matter of fact transfer of a sum of rs. 15 lacs to the appellant, though Mr. Mitter in no uncertain terms upon instructions submitted that the receipt of the sum of Rs. 15 lacs has been disputed by his client and as a matter of fact Mr. Mitter contended that no such payment as has been recorded in the agreement, has been made.

(8) MR. Mitters further submission is that there appears to be existing a negative covenant which in any event is unenforceable and question of directing specific performance of the contract does not and cannot arise. Mr. Mitter contended that the grant of the interim order of injunction in terms of prayers (c) and (d) of the petition would unmistakably lead to the conclusion that the agreement has bene given effect to without the suit being decreed.

(9) FOR conveniences sake, prayers (c) and (d) of the petition are set out hereinbelow, as has been passed by the learned Trial Judge :

" (c) Injunction restraining the defendant, its servants, agents and/or assigns from transferring and/or selling and/or delivering any extracted manganese and iron ore lying at and/or to be extracted at the Inganijharan Mines located at Village Inganijharan, Dist. Keonjhar, Orissa covering 284 acres of land and more fully described in Annexure-A hereto to any third party save and except the petitioner herein ; (d) Injunction restraining the defendant, its servants, agents and/or assigns from applying to the Deputy Director of Mines, Joda, Keonjhar, Orissa and/ or to any other authority for transport permission for delivery and/or sale of manganese and iron extracted ores from the aforesaid mine to any other person other than the petitioner. "

(10) WHILE it is true that Mr. Mitters submission initially seemed to have some force, but on a closer scrutiny the same does not withstand and the test of being substantive. There is a written agreement between the parties and as a matter of clause 14 (b) of the agreement does envisage grant of a mining lease in favour of the respondent. The factum of payment of a sum of Rs. 15 lacs has been recorded in the agreement and there is also a receipt which was produced before the Learned Trial Judge.

(11) ON the wake of the evidence, as is available from the records, question therefore arises as to whether the appellant has been able to make out a prima facie case for the purpose of intervention of this Court at this stage of the proceedings.

(12) IT is true that the learned Trial Judge has passed an ad interim order of injunction and there is some amount of sufferance so far as the appellant is concerned, but does that negate an agreement in writing We are afraid that at this interlocutory stage of the proceedings, we are not in a position to go into the same.

(13) IN any event, as regards the onerous term, Explanation to section 20 of the Specific Relief Act, makes the position clear. Explanation I, categorically records that mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b) of section 20.

(14) BE it recorded that we are not expressing any opinion at this stage of the proceedings and the matter is left to be decided by the Learned Trial Judge, at the time of final disposal of the suit and at this interlocutory stage of the proceedings question of interventions of this Appellate Court or to entertain an appeal or grant an interim order on the basis of submission of the appellant that the agreement is onerous does not and cannot arise.

(15) IN this context the observation of the House of Lords in the case of White and Carter (Councils) Ltd. vs. Mcgregor, 1962 AC 413, seems to be very apposite. The House of Lords observed : "it may be unfortunate that the appellants have saddled themselves with an unwanted contract causing an apparent waste of time and money. No doubt this aspect impressed the Court of Session, but there is no equity which can assist the appellant. It is trite that equity will not rewrite an improvident contract where there is no disability on either side. "

(16) ADMITTEDLY there is no disability in the facts of this matter under consideration, neither there is any pleading or submission to that effect.

(17) TURNING attention on to Mr. Mitters further contention viz. issue of balance of convenience, it is to be noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be an one-sided affair.

(18) ON the factual score as above, can it be said that the agreement between the parties unmistakably depicts an unfair advantage in favour of the respondent The answer, on the basis of the observations of the House of Lords, cannot but be in the negative. A sum of Rs. 15 lacs has been paid on account of the consideration money and as such, question of reduction in price cannot be stated that to be that onerous so as to prompt the Appellate Court to intervene at the interlocutory stage of the proceedings.

(19) INSOFAR as their issue of negative covenant is concerned, the same cannot, in our view, be decided at this stage of the proceedings.

(20) AS regards the forum convenience clause, be it noted here that the agreement specifically provides the same and as such it is too early to record our views in that regard.

(21) IN that view of the matter, this stay application fails and is dismissed.

(22) THERE shall be no order as to costs.

(23) IN view of the above, question of entertaining the appeal at this stage of the proceedings does not and cannot arise.

(24) PARTIES are, however, directed to take expeditious steps for the disposal of the suit.

(25) BE it clarified that observations made herein will not prejudice the rights of the parties at any subsequent stage of the proceedings.

(26) XEROXED certified copy of this order be made available to the parties with expedition as and when, applied for. Stay application dismissed.