X agrees to sing at Y's theatre for one week and not sing elsewhere during period. X later contracts with Z. Can Y sue for injunction?

The Structure of the Contract

X's contract with Y is a beautifully mixed agreement. It contains two distinct covenants operating simultaneously. First, an affirmative covenant — X agrees to sing at Y's theatre for one week. Second, a negative covenant — X agrees not to sing elsewhere during that very period. The law attaches great importance to this dual structure. Section 42 is built on this precise combination: a contract that "comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act."

Why Specific Performance is Unavailable

The first thing Y must understand is that he cannot drag X to his theatre and compel her to sing. The Act itself forecloses this. Section 14(1)(b) withholds the remedy of specific performance from contracts that require supervision of continuous performance, and section 14(1)(c) further refuses it for contracts that depend on the personal qualifications or volition of the parties. Singing is the paradigm of such a contract — it is X's art, her voice, her interpretive skill. No decree can summon those faculties; no court officer can stand on a stage and compel a performance. Section 41(e) reinforces this by barring an injunction from being used to prevent the breach of any contract that would not itself be specifically enforced.

On a literal reading, section 41(e) would shut Y out of court entirely. But this is precisely where section 42 intervenes.

Section 42: The Saving Provision

Section 42 begins with the disarming phrase — "notwithstanding anything contained in clause (e) of section 41" — and therein lies its entire power. It tells the court: the fact that you cannot compel X to sing shall not stop you from restraining X from singing elsewhere. The negative agreement lives an independent life. It is enforceable on its own, severable from the positive obligation.

The principle was stated with enduring clarity by Lord St. Leonards in Lumley v. Wagner: "If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant — that the thing shall not be done." The injunction does nothing that the contract itself has not already done; it merely gives the sanction of the court's process to an obligation that both parties created freely.

Section 42 itself expressly illustrates this principle — where A contracts with B to sing for twelve months at B's theatre and not to sing in public elsewhere, although B cannot obtain specific performance of the contract to sing, B is entitled to an injunction restraining A from singing at any other place of public entertainment. The facts of X and Y are indistinguishable from this illustration.

What Y Can Obtain

Y may sue for an injunction under section 42 restraining X from singing at Z's theatre — or, more broadly, from singing at any place of public entertainment other than Y's — during the one-week period of the contract. This is not a decree compelling X to sing for Y; it is a decree preventing X from singing for Z. The distinction is real, not merely verbal. Y gets relief, but it is the relief that the law can give — the enforcement of the promise X made, not the compulsion of the performance X undertook.

The Bombay High Court applied precisely this principle in Warner Brothers Pictures Inc. v. Nelson (1937 1 KB 209), where an actress had undertaken to act exclusively for the plaintiffs and not for any other person without written consent. The court granted a limited injunction restraining her from acting for a third party, carefully ensuring however that the injunction was not so broad as to leave her with no means of earning a livelihood. The court restrained her from acting for rivals; it did not impel her to act for the plaintiffs.

The Conditions for the Remedy

Y's claim under section 42, however, is not automatic. Three cardinal conditions must be satisfied before the court will act in Y's favour:

First, the negative covenant must be distinct and separable from the affirmative one. If the effect of enforcing the negative is simply to compel X to perform for Y — because she has no other realistic option — the court will not grant the injunction. The Supreme Court in Gujarat Bottling Co. Ltd. v. Coca-Cola Co. (1995 5 SCC 545) firmly held that a negative covenant will not be enforced if it would indirectly compel the employee either to perform for the original employer or to remain wholly idle. Y cannot ask for an injunction that effectively transforms into specific performance through the back door.

Second, the all-important proviso to section 42 requires that Y, the plaintiff, must not have failed to perform the contract so far as it is binding on him. If Y has breached his own obligations — say, he has not paid X, or has altered the agreed terms — he cannot seek equity without doing equity. This proviso is a statutory enactment of the maxim: He who seeks equity must do equity.

Third, the negative covenant must not be in violation of section 27 of the Indian Contract Act, 1872. The critical distinction here is temporal. A negative covenant operating during the period of the contract — restraining X from singing elsewhere for one week while she has contracted to sing for Y — is perfectly valid. It is not a restraint of trade in any meaningful sense; X is merely being held to the exclusive bargain she voluntarily entered into for the period of performance. But a covenant seeking to extend beyond the contract period — preventing X from singing anywhere in India after the week has ended — would be void and unenforceable, as the Supreme Court held in Percept D'Mark India Pvt. Ltd. v. Zaheer Khan (AIR 2006 SC 3426).

Here, X has agreed not to sing elsewhere for exactly one week — the duration of the contract itself. There is no post-contractual restraint. This negative covenant is therefore entirely valid, and the conditions for section 42 are fully satisfied.

The Answer

Y can sue for, and obtain, an injunction under section 42 of the Specific Relief Act restraining X from performing at Z's theatre — or at any other theatre — during the contracted one-week period. The court cannot compel X to stand on Y's stage and sing; but it can, and should, compel X to honour her promise to stand only on Y's stage. The injunction, as Lord St. Leonards put it, is nothing but the court saying, by its own process, what the parties have already said by their contract.