1. MAQBOOL BAQAR, J.---The present suit, for declaration, injunction and damages, has purportedly been filed by one Imran Awan, Sole Proprietor of M/s Awan Brand Communications.
2. The brief facts of the case, as narrated in the plaint, are that the plaintiff company is one of the leading mobile phone distributor and service provider, offering a wide range of mobile phones, accessories, and telephone network services. The plaintiff through its extensive network of retail outlets throughout Pakistan, is engaged in offering complete cellular solutions. It is claimed that the company is a well recognized brand due to its extensive advertising and promotional activities, whereas, defendant No.1 is a popular singer of Pakistan and defendant No.2, is an international competing mobile operator and cellular service provider. It is claimed that in terms of a contract of talent dated 23-4-2006, executed between the plaintiff and defendant No.], for the latter' s participation in a multimedia advertising campaign of 'Sony Ericsson Wallcman Series', mobile phones for a period of 12 months ('The Agreement), defendant No.l is obliged not to participate in any advertising/promotional activities, associated with the relevant industry. However, in July, 2006,. The plaintiff was surprised to know that defendant No.1, in breach of the agreement; has participated, as a main celebraty, in an advertising campaign, promoting defendant No.2's brand product and cellular services. It is contended that defendant No:2 is associated with the mobile phone and cellular industry. According to the plaintiff, the transmission of the impugned promotional . Campaign on television and other media commenced in July, 2006. It is claimed that the plaintiff company has, and is, suffering adverse impact on their business prospects on account of the impugned breach. It is alleged that the defendant No.2, with an intent to cause undue business loss and prejudice to the plaintiff, has induced the defendant No.1 to flout the restrictive covenants in the agreement. It is further claimed that the impugned campaign is continuing despite a legal notice sent by the plaintiff to the defendants on 19-7-2006. Along with the plaint, the plaintiff filed an injunction application (C.M.A. No.177 of 2007), seeking an order, restraining the defendants from acting in breach of the agreement dated 23-4-2006, specifically from airing/displaying the 'Telenor Talk Shawk' campaign, up to 22-4-2007, the expiry date of the agreement.
3. In his reply/counter affidavit to the plaintiff's above application, defendant No.1 raised a preliminary objection regarding the maintainability of the application. He contended that since the agreement on the basis whereof the plaintiff, is seeking the injunction order is a contract of personal service, and thus being incapable of specific enforcement, falls within the prohibition of clause (f) of section 56 of the Specific Relief Act. It is submitted that the defendant No.1 has not , violated any term of the agreement, as Telenpr, being a service provider, is not a competitor of 'Sony Ericsson Walkman Series', on the contrary, Sony Ericsson itself is promoting Telenor's 'DJUICE' service package in its advertising campaign featuring 'Sony Ericsson Walkman Series' handset and Asha Bhosle and Robbie Williams' Album. Whereas, Telenor SIM Cards (as service providers) are frequently used in Sony Ericsson mobile phones. He further submitted that the client of the plaintiff, M/s United Mobiles, is merely a cellular phone sets distributor, offering mobile phone sets and accessories, whereas, defendant No.2 is a licensee from Pakistan Telecommunication Authority for operating cellular service network and is one of the six licensed cellular network providers, which does not include the plaintiff's client.
4. In his written statement, the contents whereof have been reiterated through his above noted counter affidavit, the defendant No.1 submitted that the suit is liable to be rejected under Order VII, rule 11, C.P.C. For being (i) barred by law, (ii) having been filed by an unauthorized person, and without any cause of action. It is averred that the contract in question was signed by the. Plaintiff merely as an advertising agent of M/s United Mobiles and he therefore cannot bring a suit for.The alleged breach of contract so signed by him. It is alleged that the plaintiff has not approached this Court with clean hands and the suit has been filed by the plaintiff in order to wriggle out of his contractual obligations, and to avoid payment of the balance 50% fee i.e. Rs.500,000 to the defendant No.1.
5. Through the counter affidavit, filed on behalf of the defendant No.2 company, it was submitted that the plaintiff's suit and the application are barred by the provisions of sections 42 and 56 of Specific Relief Act and are thus liable to be dismissed. It was further submitted that the plaint has been signed by an unauthorized person and that no cause of action has arisen for the plaintiff to file- the present suit against defendant No.2. It is contended that absolutely no cause of action has accrued to the plaintiff :to file the present suit who claims to be acting as an advertising agent for a mobile hand set distributor. It is claimed that the defendant No.2 is a GSM based cellular phone operator while the plaintiff's client, is a distributor of mobile phone ' handsets and accessories and therefore, defendant No.2 does not fall within the restrictive covenant as contained in the agreement and that the plaintiff's client would only be benefited from the promotion of cellular services in Pakistan. It is submitted that the promotion campaign of defendant No.2 was launched on 25-6-2006, whereas, the plaintiff has initiated the present proceeding with an inordinate delay and towards the fag end of their alleged agreement with defendant No.1 and is therefore not entitled to any injunctive relief.
6. On 13-2-2007, hearing of the plaintiff's applications was adjourned to 20-2-2007, with a caution that rejoinders, if any, shall be filed at least three days before the next date of hearing with advance copies to the counsel for the defendants. However, no-rejoinder was filed nor was any request made for any further time and on 20-2-2007, Mr. Bilal A. Khawaja partly argued his case without filing any rejoinder and the matter was then, at the request of Mr. Bilal A.- Khawaja, adjourned to 27-2-2007 for his further arguments'. On 27-2-2007, Mr. Bilal A. Khawaja submitted affidavits-in-rejoinder in respect of the plaintiff's applications. Although, the time for filing such rejoinders, as prescribed by this Court on 13-2-2007, has. Lapsed on 16-2-2007 and Mr. Bilal A.
7. Khawaja had already commenced his arguments on 20-2-2007 and was therefore,not entitled to file any rejoinder in respect of the applications being heard. However, with the consent of the learned counsel for the defendants, this Court allowed Mr. Bilal A. Khawaja to file the rejoinders and took them on record. Copies of such rejoinders were supplied to the learned counsel for the defendants in Court on that day only.
8. Heard learned counsel and perused the record of the case.
9. The plaint in the suit bears the name of one Imran Awan, as the plaintiff, however' it has not been signed by the said Imran Awan but by some Muhammad Aslam Awan, purportedly as a duly authorized officer of the plaintiff. However, no such authorization is annexed to the plaint. Even the photocopy of a Power of Attorney, purportedly executed by the plaintiff in favour of Muhammad Aslam Awan and annexed to the affidavit in rejoinder, is neither attested nor notarized or otherwise authenticated and therefore, presumption of authenticity as envisaged by Article 95 of the Qanun- e-Shahadat cannot be attached to it, moreso, for the reason that it has been filed belatedly and the signatory to the plaint; has been described in the plaint as an authorized officer of the ,plaintiff company, whereas the present document does not describe him as such.
10. Secondly as noted above, the . Present suit has purportedly been filed on behalf of Imran Awan, Sole Proprietor of M/s Awan Brand Communications for damages and prohibitory injunction against the defendants, alleging breach of the agreement dated 23-4-2006, executed by the plaintiff for his client, M/s United Mobiles, a cellular phone distributor, in terms whereof, defendant No.1 agreed to participate in a multimedia advertising campaign for M/s United Mobile. It is alleged that on account of defendant No, l's participation/appearance in the advertising campaign of defendant No.2's cellular service package, the plaintiff has suffered an adverse impact on their business prospects, but the plaintiff evidently being an advertising agency, which fact, contrary to the plaintiff's claim of being a mobile distributor and service provider made through the plaint, has also been disclosed by defendant No.1 in his counter affidavit and has not been denied by defendant through his afore-noted rejoinders. In fact, the learned counsel for the plaintiff has also conceded that contrary to the 'plaintiff's claim in the plaint, the plaintiff merely owns an advertising agency and is not a mobile distributor and service provider as wrongly claimed in the plaint, and therefore, there is no question of the plaintiff suffering any adverse impact on his business on account of a sales promotion campaign of a cellular service package or for that matter even of a.
11. Mobile telephone handset.
12. Although, neither the suit has been filed on behalf of M/s United Mobile nor in the plaint or the notice sent by the plaintiff. It is alleged that M/s United Mobile has or will suffer any loss on account of defendant No.1 ' s participation in the impugned advertising campaign. However Mr. Bilal A.
13. Khawaja, relied a great deal ,on the M/s. Untied. Mobile's letter dated 13-11-2006, (Annexure 'B' to the plaint), whereby it complained to the plaintiff that because of defendant No.l's participation in the impugned advertisement campaign, they have suffered decline in the sale of walkman series handset throughout Pakistan. The learned counsel also referred to the plaintiff's letter dated 4-1- 2007, under cover of which letter, the plaintiff sent a copy. Of M/s Untied Mobile aforesaid letter to Mr. Bilal A. Khawaja and instructed the learned counsel to file the suit.' Such reliance has been placed in an attempt to show that the suit has been filed at the instance of M/s United Mobile.
14. However, as noted above, neither has the suit been filed on behalf of M/s United Mobile nor does it say the M/s United Mobile suffered any loss and no relief has been and indeed could not be sought through the present suit. Even otherwise, the letter dated 13-11-2006, far from instructing/ authorizing the plaintiff to file suit does not even speak of initiating any proceedings against the defendants.
15. The plaintiff's suit and the injunction application are also barred under section 21(a) of the Specific Relief Act, which provides that a contract for nonperformance of which compensation in money is an adequate relief cannot be specifically enforced, as the plaintiff have themselves estimated damages/losses suffered by them on account of the alleged breach of the agreement in a specified amount, whereas, section 56(f) of the Specific Relief Act clearly bars grant of an injunction to prevent a breach of a contract, performance whereof could not be specifically enforced.
16. Coming to the merits of the case, it is true that in terms of the subject agreement, the defendant No.1 has undertaken not to participate in any advertising/ promotional activities of the competitors and the companies associated with the industry, producing mobile phone handsets for a period of 12 months from the date of the agreement. As noted above, admittedly, the defendant No.1 assignment under the agreement was to appear in the advertising/sales promotion campaign of M/s United Mobile in respect of 'Sony Ericsson Walkman Series' mobile phone handsets and the only conceivable competitors of the plaintiff's client could either be mobile handsets and accessories, producer or seller, distributors or some one associated with the production/distribution and sale of mobile phone handset or its accessories, and the defendant No.2 being a mobile network service provider cannot by any stretch of imagination be described as the competitor of Untied Mobile or of a company associated with the industry producing mobile phone handsets and accessories. Admittedly, the impugned campaign is for the sales promotion of a mobile network service package which does not include any mobile phone handsets and in fact no mobile phone handsets has been used or displayed in the entire campaign and the customer may use any handsets of his choice for availing the publicized service which could be a Sony Ericsson set also.
17. In view of the foregoing, it is now clear that neither the plaintiff has suffered or shall suffer any loss, nor is the balance of convenience lie in his favour. In fact, no cause of action has accrued to the plaintiff and therefore, I dismissed the plaintiff's application for injunction vide short order dated 27- 2-2007. It hardly needs mention that the observations made and view expressed pertaining to the present. Case herein above, are tentative in nature and subject to final order that may be passed in the suit.