G.D. DUBE, J.

(1) THIS appeal arises from an order of Civil Judge, Allahabad issuing an ad-interim injunction before issuing notice to the appellant, asking the appellant and respondent to maintain status quo on the spot and not to proceed with further commencment of the work on spot till 24-8-1992. From the annexures to the application for staying the order of the trial Court it transpires that at the first instance the above order was extended up to 26-8-1992 and thereafter on 26-8-1992 it has been extended to 4-11-1992.

(2) ADMITTEDLY the appellant had taken a contract from the National Thermal Power Corporation (NTPC in brief hereinafter) for raising a micro-wave tower at Noida district Ghaziabad. The appellant had invited tender for foundation work and the respondents tender was accepted. From the papers annexed to the affidavit, counter-affidavit and rejoinder affidavit it transpires that a series of letters were exchanged between the parties. Annexure No. 4 of counter-affidavit indicatesthat on 13-2-1992 the appellant indicated their acceptance of the tender of the respondent. The respondent informed through a letter dated 27/04/1992 (C. A. 5) that they were ready to start the work and asked the appellant to handover the lay out of the site. On 5-5-1992 the appellant informed the respondent that their engineer will be available on site for laying down the site. The respondent were also asked to mobilise their man-power, tools etc. at the spot. On 17-5-1991 another letter was written to the respondent by the appellant that the work had not started despite the request of the engineer of the appellant to start the foundation work on 12-5-1992. On 18-5-1992 the appellant had issued a time schedule for the work. According to this time schedule mobilisation of the site was to be completed by first week of the May. On 25-5-1992 the appellant had written to the respondent that the time schedule had been handed over to the respondents officer and they were asked to mobilise and start excavation work within 7 days starting from 25-5-1992. On 4-6-1992 the respondent wrote to the appellant that the site has been mobilised and the excavation has been completed by 4-6-1992. After excavation, the respondent wrote to the appellant for making running payments. On 22-7-1992, the appellant categorically stated that the appellant was not entitled to the running payments. However, Rs. 15,000. 00 was released for payment to the respondent. It appears from the papers on record that on 28-7-1992, the parties agreed to a fresh schedule of work. The minutes of meeting is Annexure 5 to the affidavit of the appellant. The respondent was clearly informed that he had not brought any materials etc. till 3-8-1992 and he was directed to complete lean concreting by 5-8-1992. Annexure "6" also indicates that the appellant had informed the respondent that it had not started the work at the site. The respondent was specifically informed that it was going to get the work complete through other agency. Thereafter, the respondent filed the suit before the lower court, copy of which is Annexure "8".

(3) LETTERS dated 24/06/1992 and 4/07/1992 (Annexure "ca-1" and "ca-2") are letters of the respondent to the Chief Engineer of the appellant. In these letters, they have indicated the revised rates of concreting at the present market position of metal and sand.

4) ON the above facts, it was argued that the respondent had no intention to start the work. The respondent Company was interested in getting the rates revised and that is why the letters dated 24-6-1992 and 4-7-1992 (Annexures "ca-1" and "ca-2") were written to the appellant. It was argued that the appellant was bound by a contract with N. T. P. C. to deliver the micro-wave tower to the N. T. P. C. by November, 1992. If the work assigned to the respondent was not completed in a short time, they would not be able to perform their part of the contract. Instead of completing the work, the respondent has rushed to the Court.

(5) LEARNED counsel for the appellant drew our attention to S. 14 of the Specific Relief Act, 1963 (hereinafter referred to as the). It is as under :

"section 14. Contracts not specifically enforceable.- (1) The following contracts cannot be specifically enforced, namely-- (a) a contract for the non-performance of which compensation in money is an adequate relief; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties; or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms; (c) a contract which is in its nature determinable. (d) a contract the performance of which involves the performance of a continuous duty which the Court cannot supervise. 2. Save as provided by the Arbitration Act; 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer the existence of such contract shall bar the suit. (3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of Sub-Section (1), the Court may enforce specific performance in the following cases (a) where the suit is for the enforcement of a contract, - (i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once : provided that where only a part loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract, or (ii) to take up and pay for any debentures of a company; (b) where the suit is for, - (i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or (ii) the purchase of a share of a partner in a firm; (c) where the suit is for the enforcement of contract for the construction of any building or the execution of any other work on land, provided that the following conditions are fulfilled, namely : (i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work; (ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and (iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed. "

(6) IT was urged that the contract between the parties cannot be specifically performed. It has its own technicalities. Such a work cannot be supervised by the Court. It was also argued that the respondent may get damages for breach of contract from the appellant, if any. Hence, the suit cannot be decreed for permanent injunction. In this respect, learned counsel referred to S. 41 of the. The relevant portion of this Section reads :- 41. An injunction cannot be granted - (e) to prevent the breach of contract the performance of which could not be specifically enforced.

(7) ADVANCING his contention, the learned counsel for the appellant urged that the plaintiff-respondent can claim profits which he would have received by way of damages. The contract between the parties is for performance of an act which has its own engineering specialities and peculiarities. It cannot be got executed by the Court. Hence, it was urged that according to clauses (a) and (b) of Sub-Section (1) and the proviso to Sub-Sec. 3 (c) of S. 14 of the, the contract is not enforceable. The plaintiff has no substantial interest in the performance of contract, and it cannot be said that compensation would not be an adequate relief.

(8) LEARNED counsel for the appellant urged the complaint of the plaintiff for no supply of materials and non-payment of money during the performance of contract was not correct. The plaintiff had not raised any shed where he could store the cement. According to the special condition of contract, the respondent was entitled to 90% payment. on completion of work. The main intention of the plaintiff was to get the rates of contract revised as is evident from his letter dated 24-6-1992 and 4-7-1992 Annexures 1 and 2 respectively to the counter-affidavit. In the above circumstances the plaintiff cannot get any injunction.

(9) IN reply to the above arguments the learned counsel for the respondent, referred to R. 2 of O. XXXIX of the Code of Civil Procedure (hereinafter referred to as Code). It reads as under :-

2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

(10) THE above rule provides that the Court can grant temporary injunction to prevent breach of contract. It was urged that the appellant had delivered the site at a late stage. It had not even followed its own time schedule in supplying the materials. In these circumstances, the appellant cannot complain of any breach of contract from the side of the respondent, when it had not performed its part of contract.

(11) WE do not agree with learned counsel for the respondent that under R. 2 quoted above, the Court should issue an injunction restraining the appellant from cancelling the contract. A proviso has been added by the U. P. , Government to R. 2 of O. 39 of the Code. The relevant portion of this proviso is :

"provided that no such injunction shall be granted : (a) where no perpetual injunction could be granted in view of the provisions of S. 38 and Section 41 of the Specific Relief Act, 1963 (Act 47 of 1963), or. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and any order for injunction granted in contravention of these provisions shall be void. "

(12) THE above clause (1) to proviso clearly states that if the respondent cannot get a permanent injunction under Ss. 38 and 41 of the, then no temporary injunction can be granted under R. 2 of O. 39 of the Code to prevent breach of a contract.

(13) WE have gone through the documents filed by the parties as Annexures to their affidavits. According to the agreement between the parties, the respondent was required to raise the store house for storage of the materials supplied to it by the appellant. The respondent had not shown that they had raised any such store house. Annexures "ra-10", "ra-11" and "ra-12" show that the appellant had supplied 10. 980 metric tons of iron rod on 18-7-1992, 3. 520 metric tons of iron rod on 26-7-1992 and 5. 015 of metric ton of iron rod on 3-8-1992. They had also supplied 200 bags of cement. It is true that the respondent was to receive 1300 bags of cement from the appellant but that could be delivered to the respondent, only if the appellant was sure that the material supplied to the respondent would not be damaged due to rains.

(14) THE minutes of the meeting between the parties dated 3-8-1992 indicate that a fresh time schedule was agreed between the parties. Hence, whatever lapses had occurred on account of default of either of the partners (if any) was ignored and a fresh time schedule was agreed. It has not been shown by the respondent that after these minutes of 3/08/1992, the respondent had actually mobilised their man-power and machinery etc. for completing the work assigned to them.

(15) FROM the contract in question, the respondent would have saved some money as profit. Hence, the amount of loss of the respondent is an ascertainable amount. Therefore, the compensation for the alleged breach of contract by the appellant is an adequate relief. Consequently, in view of the provisions of Ss. 14 and 41 of the referred to above, the respondent would not be entitled to any permanent injunction. Consequently, it appears prima facie, that the respondent cannot get a temporary injunction under R. 2 of O. 39 of the Code.

(16) THE balance of convenience also does not lie in favour of the respondent. It has not been denied that the appellant is duty bound to NTPC to deliver the micro-wave tower within their period of contract. Time is an essence of contract between the appellant and NTPC. The respondent is bound to respect this contract also. His status is only of a subcontractor. A sub-contractor, therefore, should see that on account of his default the terms of the main contract are not adversely affected. Annexure 6 to the affidavit of the appellant indicates that the microwave tower is crucial for establishing the micro-wave link between Corporations Centre Delhi and Noida. NTPC carries a National importance. Thermal power is a life line for industrial and other activities of the Nation. In such a matter of National importance, a contractor should be very vigilant and diligent also in execution of his work. If the execution of the contract is delayed, then the Nation may also suffer, whereas the respondent will suffer. Only by loss of some money which it would have received by way of a profit by executing the work.

(17) THE question of irreparable loss has been discussed in the previous paragraph.

(18) FOR the reasons mentioned above, we are of opinion that the lower Court had not considered the matter regarding issue of injunction at the initial stage after going into the merits of the case as to desirability of issue of an injunction before issuing notice.

(19) BY an amendment in 1976 the Parliament had introduced a proviso in R. 3 of O. 39 of the Code. The proviso along with the main rule reads :-

3. Before granting injunction Court to direct notice to opposite party.- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party; provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant (a) to deliver the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent. "

(20) THE use of word "shall" in the proviso makes it mandatory on the Courts granting injunction without notice to the opposite party to record reasons. No reason whatsoever was recorded in the initial order. A perfunctory order reading heard. Issue notice to O. P. fixing 24-8-92. For objection and disposal, Steps by urgent process be taken forth. Both the parties shall maintain status quo on the spot and shall not proceed with further commencement of work on the spot till next date fixed was issued. This order is cryptic and quite in disregard of the mandate of proviso quoted above.

(21) RULE 3a of O. 39 of the Code added by the CPC (Amendment) Act 1976 also provides that where an ex parte injunction has been granted endeavour should be made to finally dispose of the application for temporary injunction within thirty days on which the injunction was granted. Here too in disregard of the above R. 3a the Court below had extended the injunction order to 4-11-1992. November is the month in which the appellant has to deliver the tower to NTPC. All the above indicates that the Court below had acted in a mechanical manner and not applied its mind at any stage.

(22) IN Road Flying Carrier v. The General Electric Company of India Ltd. , AIR 1990 All 134 [LQ/AllHC/1990/147 ;] ">1990 All 134 [LQ/AllHC/1990/147 ;] [LQ/AllHC/1990/147 ;] a Division Bench of this Court had not approved the granting of temporary injunction by the lower Court without having any regard to the mandatory provisions of R. 3 of O. 39 of the Code. In paragraph 6, the Division Bench had observed as under :-

"before parting with this appeal, it must be stressed that the subordinate Courts are granting temporary injunction without having any regard to the mandatory provisions of R. 3 of O. 39, C. P. C. It is of utmost importnce to note an ex parte order of injunction is an exception, the general rule being that order be passed only after hearing both the parties. It is only in rare cases where the Court finds that object of granting injunction would be defeated by the delay, the Court can issue an injunction ex parte but that too only after recording reasons therefor. Ex parte injunction is not routine matter and it must be borne in mind by the Courts below. "

(23) FOR the foregoing reasons, the order of the lower Court deserves to be set aside. The appeal is allowed with costs. The order of the Court below is set aside and the application for temporary injunction of the respondent is rejected.

(24) LET a copy of this judgment be sent to all the District Judges for circulation amongst all the judicial officers for their guidance. Appeal allowed.