an affirmative agreement to do a certain act, coupled with a negative agreement, express or implead, not to do a certain act, the circumstances that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. If the obligation of a seed developer or supplier is not to charge more than what the law prescribes, it cannot legally collect it, till the law is overborne in a manner known to the Constitution- either by judicial declaration or by repeal. In such context, the insistence of Monsanto that it is free to nevertheless withhold supplies of seeds or varieties of seeds, containing the Bt. Trait, to Nuziveedu, cannot be countenanced. In the facts of this case, prima facie, the Court holds that a negative obligation, implied to honour the existing law, binds the parties. Furthermore, as an essential commodity, the supply of which is regulated by law (including the control of trait value), Monsanto is obliged to maintain the supplies, to facilitate production of Nuziveedu‟s varieties for onward sale to farmers, sowing and harvesting of the crop. 114. The court notes that the balance of convenience element is an important element that every court is compelled to weigh, apart from the question of prima facie likelihood of success in a suit or counter claim. The absence of a patent results in the lack of property in the use of CryAb2 and the consequent lack of control by Monsanto about its use by others, like Nuziveedu, who might have acquired it under agreement, lawfully, developed their varieties or breeds and sold it to the farming community. The grant of injunction is rendered untenable in these circumstances. Equally, the denial of a positive order, in the opinion of the court, results in the violation of provisions of the Essential Commodities Act, as it would deprive thousands, possibly a million or so farmers, the right to access to seeds that were hitherto available to them. This is a public interest element that the court cannot be blind to. In the ultimate event of Nuziveedu failing in its counter claim, the harm that might befall Monsanto during the pendent lite period is compensable, monetarily. In these circumstances, the Court is of opinion that pending trial of the suit, the directions of the learned single judge do not call for interference.
