In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side

The Hon’ble Mr. Justice Sabyasachi Bhattacharyya

And

The Hon’ble Mr. Justice Sandip Kumar De

F.M.A.T. No. 345 of 2026

+

CAN 1 of 2026

Narayana Hrudayalaya Limited

-Versus-

Dr. Sujoy Kumar Sanyal and another

For the appellant : Mr. Probal Mukherjee, Sr. Adv.,

Mr. Sohom Sen,

Mr. Srinjoy Bhattacharya,

Mr. Sohom Sarkar, ... Advs.

For the respondents : Mr. Jayanta Kumar Mitra, Sr. Adv.,

Mr. Anirban Ray, Sr. Adv.,

Mr. Aniruddha Mitra, Sr. Adv.,

Mr. Sankarsan Sarkar,

Mr. Arjun Kumar Ray,

Mr. Anirban Ghosh,

Mr. Titas Sasmal, … Advs.

Heard on : 07.09.2026

Reserved on : 07.09.2026

Judgment on : 29.09.2026

Sabyasachi Bhattacharyya, J.:-

1. The plaintiff/respondent no. 1 is a senior neurosurgeon and independent

medical professional, who has been associated with defendant/proforma

respondent no. 2, the Rabindranath Tagore International Institute of

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Cardiac Sciences, for several years. The said institute is run by the

defendant no. 1/appellant-Company, the Narayana Hrudayalaya Limited.

2. The appeal arises out of a suit filed by the plaintiff/respondent no. 1 for

specific performance of an alleged oral agreement of November, 2005,

pertaining to an arrangement governing the plaintiff/respondent no. 1’s

professional association with defendant no. 1/appellant, for cancellation of a

termination/pre-closure notice dated May 18, 2026, bearing Reference No.

NH/RTICS/HR/2026/314 as illegal, invalid, ineffective, and for declaration

that an agreement for professional services dated April 2, 2025 was never

executed, signed or consented to by the plaintiff and is null and void and be

cancelled, as well as for consequential reliefs such as permanent injunction.

3. In connection with the said suit, the plaintiff/respondent no. 1 took out an

application for temporary and ad interim injunction restraining the

defendants and their agents, etc., from relying upon, enforcing, acting upon

or giving effect to an agreement dated April 2, 2025 and the notice dated

May 18, 2026 or any similar letter and from preventing the

plaintiff/respondent no. 1 from consulting the outdoor patients and also the

plaintiff’s ingress and egress to the defendant no. 2/Hospital.

4. By the impugned order, learned Trial Judge granted ad interim injunction

restraining the defendants as well as all of the employees acting under them

from giving effect to or acting upon the purported agreement dated April 2,

2025 and the notice dated May 8, 2026, as well as from creating any

disturbances in any manner whatsoever to the

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plaintiff/respondent no. 1 in “carrying out his service to the hospital as

senior neurosurgeon from all aspects”.

5. Learned senior counsel for the defendant no.1/appellant contends that the

impugned order is vitiated by suppression of material facts by the

plaintiff/respondent no. 1 with regard to several other agreements which

were executed between November, 2005 and the date of the termination

notice. By relying on copies of such documents annexed to the stay

application filed in the present appeal, it is pointed out that several of those

contain the plaintiff’s signature.

6. Learned senior counsel next relies on an e -mail sent by the

plaintiff/respondent no. 1 in the month of May, 2026, wherein the plaintiff

conceded to the notice of termination/pre-closure of contract, despite

denying the same in the same breath, and agreed to leave in pursuance of

the same after three months. It is argued that having thus conceded to the

termination notice, the plaintiff cannot resile therefrom and file a suit or

obtain an injunction in connection therewith.

7. It is further pointed out that no specific date of the purported oral

agreement has been pleaded in the plaint.

8. Learned senior counsel further relies on an offer letter dated November 4,

2005, contemporaneous with the alleged oral agreement, which contains the

specific terms of the contract between the hospital and the plaintiff. It is,

thus, submitted that in view of the contract between the parties having been

reduced to writing at the same period, the story of an oral agreement, that

too without any particulars thereof, is not credible.

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9. Learned senior counsel appearing for the defendant no. 1/appellant next

argues that the suit itself is not maintainable under Clauses (c) and (d) of

Section 14, read with Section 41(e), of the Specific Relief Act, 1963, as

amended (hereinafter referred to as “the 1963 Act”). As the contract, even as

pleaded, is determinable by its very nature and the same is dependent on

the personal skills of the plaintiff, no suit is maintainable for specific

performance of the same. It is also submitted that the suit is hit by Section

14(b) of the 1963 Act, as its performance involves the performance of a

continuous duty which the Court cannot supervise.

10. Learned senior counsel cites Percept D’Mark (India) (P) Ltd. v. Zaheer Khan

and Another, reported at (2006) 4 SCC 227, where it was observed by the

Hon’ble Supreme Court that no suit lies for specific pe rformance of

contracts for personal services.

11. Learned senior counsel also relies on a co-ordinate Bench judgment of this

Court in Purna Chandra Das v. Warren Industrial Ltd. and Another, reported

at 1991 SCC OnLine Cal 183 , where it was held that where there is a

contractual relationship, there must be some special public law element

before the Court for granting relief otherwise than by way of damages. In the

field of contract of service, it was held, there is very little scope of judicial

review, unless it could be shown that in the matter of such contract, there

are some public law doctrines applicable to public servants, either on the

basis that they held a public office or that there was some statutory

provision regulating dismissal.

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12. In reply, learned senior counsel for the plaintiff/respondent no. 1 contends

that the plaintiff is a neurosurgeon of renown and is well-respected in his

field. Several patients of the defendant/proforma respondent no. 2-Hospital

are utterly dependent on the plaintiff for continuance of their proper care

and treatment. Thus, if the plaintiff is unceremoniously prevented from

continuing with his services with the Hospital, such patients shall suffer

irreparably. Furthermore, it is contended that the plaintiff/respondent no. 1

would also require some time to join a new hospital or any other institute. It

is submitted that irrespective of the oral contract, a notice of mere three

months, as given to the plaintiff, is utterly insufficient in the above context.

For termination of such contractual services, it is argued that a notice for a

reasonable period is required, which is absent in the present case. Learned

senior counsel contends that the oral agreement pleaded in Paragraph Nos.

5 to 9 of the plaint clearly indicates that the termination, if any, of such

contract is subject to mutual consent, which is absent in the present case.

13. Learned senior counsel relies on an unreported co-ordinate Bench judgment

of this Court in Akshay Vinimay LLP v. Neeraj Bajoria and others [F MA

No.250 of 2026] for the proposition that the scope of interference in an

appeal against an ex parte ad interim injunction is extremely limited. As per

the said report, the legislative scheme of Order XXXIX of the Code of Civil

Procedure covers all shades of grievance. In case it is contended by the

defendant that the ex parte order was obtained by misleading the Court, by

suppression of material facts or otherwise or by making false statements,

such conduct is to be brought to the notice of the same Cour t under

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Order XXXIX Rule 4 of the Code for the order obtained on the basis of such

mala fide act to be varied, modified or reversed on such ground alone.

14. Hence, new documents cannot be looked into by this Court within the

limited scope of the present appeal and the question of suppression also

cannot be adjudicated for the first time before this Court.

15. Learned senior counsel appearing for the plaintiff/respondent no. 1 further

argues that the Court has ample power under Section 14A of the 1963 Act

to engage an expert to verify the authenticity of the documents relied on by

the defendants in the suit. Since the very authenticity of the purported

agreement dated April 2, 2025, relied on by the defendants, and the

plaintiff’s signature thereon, are assailed in the suit, it is a subject-matter of

trial on evidence by appointment of experts to ascertain the veracity of such

allegations. At the ex parte ad interim stage, the court is merely to proceed

on the basis of the averments made in the plaint and the injunction

application, on the strength of which a strong prima facie case has been

made out in the instant case.

16. Accordingly, it is submitted that the appeal may be dismissed.

17. Upon hearing learned counsel and going through the materials on record,

the court comes to the following conclusions:

18. Insofar as the scope of an appeal against an ex parte ad interim injunction

order is concerned, the same is extremely limited, confined to the materials

and pleadings which were before the Trial Court on the date of passing of

the impugned order. There are three modes of challenge to such an order –

an appeal, a vacating application under Order XXXIX Rule 4 of the Code and

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contesting the injunction application itself by filing a written objection

thereto. Order XXXIX Rule 4 clearly encompasses a challenge on the ground

that material facts were suppressed or that the order was obtained by

misleading the Court. New documents, if produced by the defendants, can

only be looked into upon those being brought on record bef ore the Trial

Court subsequently. At the ex parte ad interim stage, the court is only to

look into the pleadings in the plaint and the injunction application and the

documents filed in connection therewith or relied on therein. An appeal

would be illusory to the extent that new facts are sought to be brought on

record, since those were not before the Trial Court, and the Appellate Court

is only to ascertain whether the learned Trial Judge was justified in passing

the impugned order on the basis of the pleadings and materials before the

said Court. Hence, this Court, within the limited scope of the present

appeal, cannot look into the new documents, in the form of written

agreements, sought to be relied on by the defendant no. 1/appellant. Thus,

we proceed on the materials and pleadings which were before the Trial Court

at the time of passing of the impugned order.

19. The first striking feature of the matter is that even in the plaint and the

injunction application, the specific date when the alleged oral agreement

was entered into is not disclosed. It has merely been stated that the same

was entered into in the month of November, 2005, without disclosing the

attending circumstances or in whose presence such agreement was entered.

Hence, even on the plaint pleadings, it would be difficult for the Court to

accept the existence of such oral agreement.

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20. The next feature of the case is that a contract of the nature pleaded by the

plaintiff/respondent no. 1 is determinable by its very nature, thus coming

within the ambit of Section 14(d) of the 1963 Act, which provides that such

contracts are not specifically enforceable. Consequentially, under Section

41(e) of the said Act, a contract which is not specifically enforceable does not

call for an injunction being passed in support of the same. As per the plaint

averments, the oral agreement comprises of a contract whereby the

plaintiff/respondent no. 1 was to offer his professional services to the

proforma respondent no. 2-hospital, which is more transient in nature than

a regular employment contract. It is nobody’s case that the plaintiff has

been an employee of the defendants at any point of time. The law does not

contemplate, even in respect of employment agreement s, that such

contracts can be in perpetuity. The employer has discretion as to whom to

employ, which is only subject to the principles of natural justice and the

governing law and rules, if any, insofar as termination of employment is

concerned. A contract contemplating rendering of professional services by a

doctor to a hospital is of a more limited nature, the perpetuation of which

for an indefinite period is not envisaged in law. The plaintiff/respondent no.

1 is admittedly an independent professional who has been rendering

services for the proforma respondent no. 2-Hospital, and is not an integral

part of the hospital administration or its employees. It is, thus, for the

defendants to decide as to whom to continue with on their panel of

doctors/neurosurgeons.

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21. Moreover, the nature of the service contemplated under the alleged oral

agreement is such that it is entirely dependent on the personal skills and

qualifications of the plaintiff and the preferences of services to be offered by

the defendants to their customers/patients. Hence, such a contract cannot

be specifically performed insofar as its material terms are concerned.

Accordingly, the bar under Section 14(c) of the 1963 Act also operates in the

present context.

22. The plaintiff claims an injunction on the terminus of continuance of his

services to the patients, which patients are not his own but of the

defendant/proforma respondent no. 2-hospital. It is not possible for the

Court to continually supervise whether such services are permitted to be

offered, hence bringing the alleged oral agreement within the purview of

Section 14(b) of the 1963 Act as well.

23. Thus, the relief sought in the suit is ex facie barred by Section 41(e), read

with Clauses (b), (c) and (d) of Section 14, of the 1963 Act.

24. The plaintiff has advanced an alternative argument of insufficient notice,

which is beyond the plaint case. Even otherwise, the same is ex facie not

acceptable. A prior notice of three months to a doctor, admittedly of repute,

to terminate his contract, necessitating him to shift his services to a

different hospital, and for his patients in the hospital to be entrusted to a

different doctor or doctors practising in the same field, is prima facie

sufficient. A hospital has its own records of the ailments, history and

conditions and other medical details of the patient, on the basis of which a

doctor on its panel or rolls treats the patients. There is no conceivable

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reason as to why such duty cannot be entrusted to a different doctor over

the long period of three months. There is no inter-personal privity of

contract between the concerned doctor and the hospital’s patients and it is

only the hospital which is duty-bound to render proper services to the

patient, at its own risk. In the present case, it is not the patients concerned

but the doctor himself who has filed the suit. Thus, the plaintiff cannot be

permitted to espouse the cause of his patients, even if any.

25. Insofar as sufficiency of the notice period is concerned, no parameter has

been disclosed by the plaintiff to hold that the period of three months is

palpably insufficient or unreasonable.

26. The plaintiff/respondent insinuates that a three month s’ period is

insufficient for him to find an alternative hospital to render the services. A

doctor attached to a hospital for twenty plus years, being a surgeon of

repute, cannot plead that it would be difficult for him to join a new hospital

over a period of three months.

27. Another vital aspect of the matter comes to light in the e-mail sent by the

plaintiff to the defendants in the month of May, 2026, which was a part of

the annexures to the temporary injunction application filed in the Trial

Court. From the same, we find that the plaintiff requested the defendants to

“stick to the spirit of the letter of pre-closure of contract and please ensure

that…” he is allowed to take care of his patients for the next three months,

beseeching the defendants not to do anything which will “harm patient

care”. Receipt of the pre-closure of contract on May 20, 2026 is also

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acknowledged and attached to the said e-mail by the plaintiff/respondent

no. 1.

28. Thus, by his very conduct, the plaintiff/respondent no. 1 acceded to the

termination letter and sought a further period of three months, in

consonance with the period stipulated in the pre -closure/termination

communication, conceding in principle to the fact that the contract was

terminable in nature. Having so conceded, the plaintiff cannot take a

diametrically opposite stand now by assailing the said notice, by dint of his

own contract. Also, the plaintiff himself sought three months’ extension and

cannot now argue that the said period was inadequate.

29. In an injunction matter, the Civil Court also acts as a court of equity and

has to ascertain whether the plaintiff has come with clean hands. From the

perspective of equity as well, in view of the conduct of the plaintiff himself in

seeking three months’ time to continue his services in the hospital, in terms

of the impugned termination letter, he ought not to be permitted to argue

that the said period is insufficient and/or to challenge such termination.

30. In the light of the above findings, we do not find any prima facie case having

been made out by the plaintiff/respondent no.1 for grant of injunction.

31. It has also been submitted during arguments that the plaintiff/respondent

no. 1 has, in the meantime, joined a different hospital. Thus, no urgency is

disclosed, which is a sine qua non for grant of ex parte injunction prior to

giving notice to the defendants. Also, we find utter absence of irreparable

injury on the part of the plaintiff if the injunction is refused. Moreover, the

balance of convenience and inconvenience lies in favour of refusal of

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injunction, since the defendants would be in a fix, not being able to engage a

new neurosurgeon in place of the plaintiff during subsistence of the

injunction order, despite having terminated the previous contract with the

plaintiff/respondent no. 1, which will disrupt the patient care services

rendered by the defendants and cause unwarranted and irreparable injury

to the hapless patients.

32. As discussed earlier, a contract of service is determinable by its very nature

and cannot be perpetuated by injunction, which would tantamount to re-

writing the contract itself. In the present case, the plaintiff’s standing is on a

much weaker footing, since the oral contract pleaded is not a contract of

regular service or employment but a temporary agreement contemplating

professional services to be rendered by the plaintiff to the patients of the

concerned hospital, which, by its very nature, is determinable at the behest

of the defendants.

33. The plaintiff has pleaded that the purported oral contract included a clause

whereby there could not be any termination without mutual consent, in

support of which precious nothing has been disclosed, either by way of

pleadings as to the attending circumstances and/or any contemporaneous

document. Rather, such a clause is incompatible with a contract for

rendering professional medical services to a hospital.

34. However, although the Hon’ble Supreme Court, in Percept D’Mark (India) (P)

Ltd.(supra)

1

, reiterated that contracts for personal services cannot be

specifically performed, the same was rendered in the context of the

1

Percept D’Mark (India) (P) Ltd. v. Zaheer Khan and Another, reported at (2006) 4

SCC 227

13

unamended Section 14(1) of the Specific Relief Act, 1963, which has since

been amended with effect from October 1, 2018. Even in the previous

unamended section, though, there was no specific bar in respect of “contract

of personal services”. Rather, the bar as to specific performance of contracts

which are by their very nature determinable was there, which has been

retained in the amended provision. A contract for personal services, broadly,

comes within the paradigm of such bar. In that sense, the ratio laid down in

Percept D’Mark (India) (P) Ltd.(supra)

2

still holds good, since the contract

pleaded by the plaintiff in the instant case also comes within the purview of

such bar.

35. A co-ordinate Bench of this court, in Purna Chandra Das (supra)

3

, had

reiterated the well-settled proposition of law that in a matter of contract of

service, unless there is a public law element involved, the courts generally

do not interfere. There is no reason as to why the said principle cannot be

applied in the present context.

36. In continuance of our earlier findings as to the scope of the present appeal

against an ex parte ad interim injunction order, this court would be failing

in its duty if the conflict of law prevailing on that aspect is not recorded.

37. Initially, in Muktakesi Dawn and others v. Haripada Mazumdar and another,

reported at AIR 1988 Cal 25, and in Jitesh Pandey v. Urmilata Sinha,

reported at 1999 SCC OnLine Cal 460, a Division Bench and a learned Single

Judge of this court, respectively, had recognised the settled legal position

2

Percept D’Mark (India) (P) Ltd. v. Zaheer Khan and Another, reported at (2006) 4

SCC 227

3

Purna Chandra Das v. Warren Industrial Ltd. and Another, reported at 1991 SCC

OnLine Cal 183

14

that at the ex parte ad interim stage, in the absence of any traversal, the

pleadings in the injunction application have to be taken as true in manner

and in form and the court, in an appeal, cannot travel beyond the scope of

the jurisdiction of the Trial Court while granting such injunction.

38. In Bengal Club Ltd. v. Susanta Kumar Chowdhary, reported at AIR 2003 Cal

96, the said proposition was differed with by another co-ordinate Bench

(Division Bench) of this court, without referring the same to a Larger Bench,

as is the established principle of the law of precedents.

39. Taking into consideration all the above judgments, in Akshay Vinimay LLP

(supra)

4

, this court has respectfully disagreed with the view taken in Bengal

Club Ltd. (supra)

5

, expressing unanimity with the earlier view laid down by a

Bench of coordinate strength in Muktakesi Dawn (supra)

6

. Although a

reference has been made to a Larger Bench on the said issue in Akshay

Vinimay LLP (supra)

4

, which reference is still pending, we do not find any

reason to differ from the view taken therein and in Muktakesi Dawn (supra)

6

.

as well as Jitesh Pandey (supra)

7

. Thus, the appellant’s prayer to be

permitted to bringing in new documents cannot be acceded to.

40. However, in view of the findings arrived at by this court on the other issues

above, we find that the learned Trial Judge erred in law and in fact in

granting ex parte ad interim injunction in a suit which is ex facie not

maintainable, without adverting to such aspect of the matter at all. It is trite

4

Akshay Vinimay LLP v. Neeraj Bajoria and others [FMA No.250 of 2026]

5

Bengal Club Ltd. v. Susanta Kumar Chowdhary, reported at AIR 2003 Cal 96

6

Muktakesi Dawn and others v. Haripada Mazumdar and another, reported in AIR

1988 Cal 25

7

Jitesh Pandey v. Urmilata Sinha, reported at 1999 SCC OnLine Cal 460 ,

15

law that the maintainability of the suit in which the injunction order is

sought is an essential component of the prima facie case to be made out for

the grant of such injunction.

41. The impugned order fails to pass muster on such count.

42. Accordingly, the impugned order cannot be sustained and the present

appeal succeeds.

43. Hence, FMAT No. 345 of 2026 is allowed on contest, thereby setting aside

the impugned order, bearing Order no. 2 dated August 18, 2026 passed by

the learned Civil Judge (Senior Division) Fifth Court at Alipore, District –

South 24 Parganas in Title Suit No. 1226 of 2026.

44. CAN 1 of 2026 is consequentially disposed of.

45. There will be no order as to costs.

46. We make it clear that the above findings are tentative in nature and the

learned Trial Judge shall not be unduly influenced by the said findings or by

the outcome of the present appeal and will be at liberty to decide the

temporary injunction application and the suit on their own merits in

accordance with law.

47. The defendants in the suit shall file their written objection(s) at the earliest,

positively within October 15, 2026, in the Trial Court. It is expected that

learned Trial Judge shall, thereafter, dispose of the injunction application

itself as expeditiously as the business of the said court permits, preferably

within one month after the reopening of the Trial Court subsequent to the

upcoming Annual Vacation of the said court.

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48. Urgent photostat certified copies of this judgment, if applied for, be supplied

to the parties upon compliance of all formalities.

(Sabyasachi Bhattacharyya, J.)

I agree.

(Sandip Kumar De, J.)