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2001 DAILYLAW 1697 (DEL)

NAHTA LIMITED v. RAAMRAJ KALA MANDIR

2001-09-13

B N Chaturvedi

body2001
B. N. CHATURVEDI ( 1 ) BY an application under Order XXXIX Rules 1and2 civil Procedure Code (IA. 8202/2001 ), plaintiff seeks an order of injunction restraining the defendants from selling, transferring-or allowing any person in any manner from exhibiting, telecasting or showing the film "giraftar" through any media. ( 2 ). The plaintiff filed a suit against the defendants for recovery of Rs. 1,62,46,250. 00 alleging that as a financier it had advanced diverse sums aggregating Rs. 56. 25 lakhs to defendant No. 1, a producer of cinematograph films, in connection with making of a film titled "ganga Jamuna Saraswati". The sums advanced on different dates carried interest @ 23% p. a. In addition, certain other amounts accruing under the agreement, executed between the plaintiff and defendant No. 1, are claimed payable by the defendant No. 1. ( 3 ). The defendant No. 2 was engaged by the defendant no. 1 for the purposes of processing negatives of all kinds and taking out release prints etc. for delivering the same to various territorial distributors of the film "ganga Jamuna Saraswati". As security for repayment of all amounts due and payable to the plaintiff, the defendant No. 1 wrote a letter to the defendant No. 2. to hold negatives, prints etc. of the said film in trust for and on behalf of the plaintiff till such time the payment of entire amount that would become payable, was not made to the plaintiff. The defendant No. 2, accordingly, transferred in their records the negatives of the said film in the name of the plaintiff and agreed to act as per instructions of the plaintiff only in regard to all affairs concerning delivery of release prints of the film to the distributors, appointed by defendant no. 1. ( 4 ). The defendant No. 1 failed to pay the amount due and payable to the plaintiff. The film "ganga Jamuna saraswati" was completed sometime in later half of 1988. It was scheduled to be released on or about 22/12/1988/23/12/1988. On or about 23/2/1988 during the period when the said film was under production, there was a search and seizure at the premises of the plaintiff by the Income Tax department. The film "ganga Jamuna saraswati" was completed sometime in later half of 1988. It was scheduled to be released on or about 22/12/1988/23/12/1988. On or about 23/2/1988 during the period when the said film was under production, there was a search and seizure at the premises of the plaintiff by the Income Tax department. By an order dated 29/2/1988 passed by income Tax authorities under Section 132 (3) of the income Tax Act, 1961, the defendant No. 1 was prohibited from making any payment of the amounts due to the plaintiff under the agreement relating to production of the said film. The plaintiff was, thus, prevented from taking out any proceedings against defendant No. 1 for recovery of the amount due from it. Since the defendant No. 1 was restrained from making payment of the amount due to the plaintiff by the income tax authorities, in pursuance of a meeting held between the plaintiff, defendant No. 1 and officials of defendant No. 2, on an oral undertaking of both the defendants to make the payment of the amount due to it, the plaintiff agreed to the release of the film "ganga Jamuna Saraswati". The defendant No. 2 was allowed to release the prints of the film, as per the needs of the defendant No. 1, to the distributors without a written consent from the plaintiff. The film was, accordingly, released and exhibited. However, contrary to assurance given by the defendants, only small amounts were paid to the plaintiff by defendant No. 1. On prohibitory order issued by the income tax authorities being vacated, the defendant No. 1, on being approached by the plaintiff to make the payment, expressed his inability on the excuse of heavy financial constraints. Subsequently, few more films were produced by defendant No. 1, but it failed to make payment of the amounts due and payable to the plaintiff. By seeking a restraint against the defendant No. 1 from exhibiting or showing its new film "giraftar", the plaintiff aims at making the defendant No. 1 to pay the suit claim. ( 5 ). The liability, if any, to pay to the plaintiff against the suit claim under the agreement in question appears to be that of defendant No. 1 only. ( 5 ). The liability, if any, to pay to the plaintiff against the suit claim under the agreement in question appears to be that of defendant No. 1 only. The defendant No. 2 was not a party to the agreement under which the plaintiff had financed the making of film "ganga Jamuna Saraswati" by defendant No. 1. The defendant No. 2 had, of course, on the instructions of defendant No. 1 transferred the negatives of the film in their records in the name of the plaintiff and had agreed to act solely on the instructions of the plaintiff concerning delivery of release-prints of the film. Once the plaintiff permitted it to deliver the release-prints of the film, no fault could be found with defendant No. 2 as far as its part of obligation towards the plaintiff was concerned. Though in the plaint there is an averment that the plaintiff had permitted the release of the film "ganga Jamuna saraswati" on an oral undertaking of both the defendants that payment of the amounts due and payable to it would be made, it is a matter of evidence if any such oral undertaking had actually been given by defendant No. 2. Furthermore, the question of enforceability of alleged oral undertaking for recovery of the suit amount from the defendant No. 2 is yet to be adjudicated upon. ( 6 ). The learned counsel for the plaintiff referred to a letter dated 2/2/1993 from defendant No. 1 to defendant No. 2 requesting them for transfer of negatives of the picture "giraftar" in the name of the plaintiff as soon as the accounts with M/s. Laxman Dass bansi Lal and Company, Bangalore were settled. In reply, defendant No. 2 wrote a letter dated 15/2/1993 to the plaintiff informing it that the instructions from defendant No. 1 for transfer of the picture and sound negatives of the film "giraftar" had been taken note of by it and the same would be transferred in its name provided they get a letter from M/s. Laxman Dass bansi Lal and Company, Banglore stating that their accounts are settled and that they have no objection in transferring the negatives of the above said film, as per the instructions of the producer, in its favour. Till date, however, the picture and sound negatives of the film in question continue in the name of M/s. Laxman Dass Bansi Lal and Company, Banglore in the records of defendant No. 2 and the same have not been transferred in favour of the plaintiff. Thus, it is M/s. Laxman Dass Bansi Lal and Company, Banglore which hold lien over the picture and sound negatives of the film "giraftar" and no right in favour of the plaintiff in relation thereto has yet been created in the records of defendant No. 2. The plaintiff, in the circumstances, cannot seek to dictate its terms to the defendant No. 2 to the detriment of M/s. Laxman Dass bansi Lal and Company, Banglore, the present negative right holder as per record of defendant No. 2. Consequently, the plaintiff cannot justify its prayer for a restraint order against the defendant N0. 2 relating to release of picture and sound negative prints of film "giraftar" by them. ( 7 ). The defendant No. 1, in its reply to the application, asserted that he has already repaid the entire amount of Rs. 56,25 lakhs to the plaintiff. The plaintiff has not specifically admitted that its entire principal amount stands paid. ( 8 ). From an order dated 8/10/1999, it is gathered that the learned counsel for defendant No. 1 had informed the Court that a sum of Rs. 9. 26 lakh was outstanding towards the principal amount on that date. Another order dated 12/7/2000, however, reveals that instead of Rs. 9. 25 lakhs, three cheques for a total amount of Rs. 6. 25 lakhs only had been paid by the defendant No. 1 towards balance of the principal amount. The plaintiff accepted the said payment without admitting that the entire outstanding balance on account of principal amount stood liquidated. ( 9 ). The defendant No. 1 has further stated in its reply that he has surrendered possession of his two flats at Bombay Zuhu Beach to the plaintiff as security for repayment of the entire principal amount. This fact was not controverted by the learned counsel for the plaintiff in the course of hearing. The said flats are claimed to be worth more than rs. 1,25,00,000. 00. This fact was not controverted by the learned counsel for the plaintiff in the course of hearing. The said flats are claimed to be worth more than rs. 1,25,00,000. 00. It is pleaded that after payment of entire principal amount when the defendant No. 1 demanded back the possession of the flats, the plaintiff started filing frivolous applications to harass him. ( 10 ). It is notable that after transfer of negative rights pertaining to film "giraftar" in favour of m/s. Laxman Dass Bansi Lal and Company, Banglore in the records of defendant No. 2 at the instance of defendant no. 1, presently the defendant No. 1 appears to hold no right or control over negative rights of the said film and the defendant No. 2 has to act as per instructions of M/s. Laxman Dass Bansi Lal and Company, Banglore, the present negative rightholder of the film "giraftar". In such a situation, by passing a restraint order against the telecast or exhibition of the film "giraftar", financial interests of M/s. Laxman Dass bansi Lal and Company cannot be put in jeopardy. Thus, taking into account the facts and,circumstances of the case, there is no case for grant of ad interim injunction prayed for against telecast, exhibition and distribution etc. of the film "giraftar". The application is, therefore, dismissed.