IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 29/03/2005
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice S.K. KRISHNAN
Original Side Appeal No. 52 of 2005
and
C.M.P.No. 532 of 2005
M/s. Prasad Film Laboratories,
58, Arunachalam Road,
Chennai-600 093. .. Appellant.
-Vs-
1. G.V. Films Limited,
represented by its Director
P. Raghuraman,"Sujatha Centre",
No.4, Seshadri Road,
Alwarpet, Chennai-18.
2. Photo Film Industries,
B-134-137 Pipdic Industrial Estate,
Mettupalayam, Pondicherry-605 009.
3. Mr. Jaswand Chand alias
Jaswant Bandari,
20, Errulappan Street,
Chennai-79.
4. Vijay Bajaj
Devi Distributors,
231, Pantheon Road,
Egmore, Chennai-8.
5. Anand Cine Service,
3, Sarangapani Street,
T. Nagar, Chennai-17.
6. Jeeva,
F 105, G3 Golden Brooke Apartment,
Anna Nagar, Chennai-102.
7. Laila,
604, Spring Leaf Apartment,
7, Bungalows Road, Andheri (West),
Versova, Mumbai-500 061.
8. Film Employees Federation of South India,
36, Jawaharlal Nehru Salai, 100 ft.Road,
Vadapalani, Chennai-26.
9. Chennai Chengai MGR Districts Film
Distributors Association,
26, Meeran Sahib Street,
Chennai-2.
10. Thotta Tharani,
8, 4th Main Road, United India Colony,
Kodambakkam, Chennai-24.
11. S. Somasundaram,
Proprietor SM Films, 5 West Avani Moola Street,
1st Floor, Madurai, 625 001.
12. Shree Pavornicka Movies,
20, Erukkadu Third Street,
Karuvampalayam,
Mangalam Road, Tirupur-641 604.
13. G. Tech Stones Limited,
62, 1st Floor, GN Chetty Road,
T. Nagar, Chennai-17.
14. Mohan Alse,
77, M.S. Koil Street, Royapuram,
Chennai-13.
15. Oscar Films P. Ltd.,
9, 10th Avenue, Ashok Nagar,
Chennai-83.
16. J.V.M. Publicity,
75, General Patters Road,
Chennai-2.
17. Mrs. Anees,
F-105, G-3 Golden Brooke Apartment,
Anna Nagar, Chennai-600 102.
18. Five Star Trading,
represented by its partner
M. Mohd. Yahiya,
73/175, Purasawakkam High Road,
Chennai-7. .. Respondents.
Original Side Appeal filed under Clause 15 of Letters Patent read with
Order XXXVI, Rule 1 of Original Side Rules, against order dated 25th February,
2005, made in Original Application No. 789 of 2004 in C.S.No. 749 of 2004
passed by Single Judge of this Court.
!Mr. Srinivasa Raghavan,senior counsel for
M/s.Subhashini Narasimhan:- For Appellant.
^Mr. K. Ravi for M/s.Rugan and Arya:- For
1st Respondent
:JUDGMENT
(Judgment of the Court was made by P. SATHASIVAM, J.,)
The above Original Side Appeal has been filed against Order of learned
Single Judge dated 25-2-2005 made in O.A.No. 789 of 2004 in C.S.No. 749 of
2004 in and by which the learned Judge appointed the first respondent
therein/appellant herein and the counsel for the fourth respondent therein as
Joint Receivers for the Tamil Film “Ullam Ketkkume”. The plaintiff/first
respondent herein, namely, G. V. Films, instituted Civil Suit No. 749/2004
on the file of the Original Side of this Court against the appellant herein as
first defendant and 17 others praying for permanent injunction restraining the
defendants from interfering with the absolute Copyright of the plaintiff over
the Tamil cinematograph film, “Ullam Ketkkume” by preventing in any manner the
release and exploitation of the said film. The plaintiff has also prayed for
mandatory injunction directing the first defendant laboratory to deliver
prints of the Tamil cinematograph film ” Ullam Ketkkume” to the plaintiff or
such other persons named by this Court notwithstanding any claim by the first
defendant or any other defendants and subject to any condition that this Court
might impose for keeping of an account of all realisations from exploiting the
said film and preserving such realisations intact separately till the claims
of all the defendants herein are adjudicated upon.
2. In the said suit the plaintiff has also filed Original Application
No. 789 of 2004 praying for appointment of joint receivers, one of whom could
be a representative of the applicant/ plaintiff company and the other could be
a representative of the respondents, to take charge of the negatives and all
the 72 number of positive prints of the Tamil cinematograph film, “Ullam
Ketkkume” from the first respondent’s laboratory, book appropriate theatres
all over Tamil Nadu, release such prints in such theatres, submit to this
Court accounts of all collections from exploitation of such prints and deposit
such collections every week into this Court after deducting taxes, theatre
rent and lawful expenses involved in exploiting the picture subject to the
result of and pending disposal of the suit. The said Application was resisted
by the first respondent therein/appellant herein by filing counter affidavit.
By the impugned order dated 25-2-2005 , the learned Judge, after considering
the claim of both parties, particularly taking of the fact that the financial
position of the petitioner/plaintiff and of the fact that all the
respondents/defendants who are creditors entitled payment more particularly
the first defendant laboratory got lien over others, passed an order
appointing the first respondent-Prasad Film Laboratories and Mr. P. Jerome
Pushparaj, counsel for 4th respondent therein as joint receivers for the Tamil
Film “Ullam Ketkkume” and also issued certain other directions for exhibition
of the said film in 72 theatres and keep the collection by filing statement of
the Court and posted the said application to 14-6-2 005 for further hearing.
Questioning the said order, Prasad Film Laboratories/first respondent therein,
have filed the above appeal.
3. Heard Mr. Srinivasa Raghavan, learned senior counsel for the
appellant and Mr. K. Ravi, learned counsel for first respondent in this
Appeal.
4. Even at the outset, it was brought to the notice of the learned
senior counsel for the appellant that Original Side Appeal No. 37/2005 filed
by Photo Film Industries, Pondicherry/2nd respondent in that Application,
filed against the very same order has been dismissed by this Court on
11-3-2005. In that decision, after finding that the course adopted by the
learned Judge is reasonable and acceptable and also taking note of the fact
that the appointment of Joint Receivers to exhibit the film “Ullam Ketkume” is
only for a limited period and posted O.A.No.789/2004 for further hearing on
14-6-2005, we dismissed the said appeal. However, Mr. Srinivasa Raghavan,
learned senior counsel for the appellant, would contend that in spite of the
dismissal of O.S.A.No.37/2005 and confirmation of the very same order of the
learned Single Judge dated 25-2-2005, the appellant herein who stands in a
different footing is entitled to challenge the same. According to him, though
the learned Judge has applied Section 94 of the Code of Civil Procedure, the
same has not been properly applied in this case. Since the plaintiff has no
legal right or cause of action to continue the suit. He further contended
that the plaintiff has not performed his obligation and has not satisfied
Sections 15 and 16 of the Specific Relief Act, 1963. He further contended
that as per Section 170 of the Indian Contract Act, 1872, the appellant herein
is entitled to lien over others. According to him, the plaintiff is not
entitled to any benefit in view of Sections 64 and 65 of the Indian Contract
Act. He further contended that when the suit is liable to be dismissed, the
Court cannot re-write the terms of contract and grant relief by appointment of
a joint receiver. On the other hand, Mr. K. Ravi, learned counsel appearing
for the first respondent, contended that the learned Single Judge considering
the claim of all the parties, including Bailees lien of the appellant herein
over others, passed an workable interim order which requires no interference
by this Court. He also contended that the negative of the film will be with
the appellant and even the order appointing joint receiver was made on the
consent given by the appellant by filing a memo. We have considered all the
relevant materials and the rival contentions.
5. In order to appreciate the rival contentions, it is useful to
refer the interim arrangement made by the learned Judge which reads as under:-
“4. Accordingly the following order is passed:
The first respondent and the counsel for the fourth respondent Mr. Jerome
Pushparaj are appointed as joint receivers for the Tamil film Ullam
Ketkkume, the applicant/plaintiff shall spend a sum of Rs.10 lakhs in
effecting necessary advertisements in the name of the joint receivers for the
release of the film in Tamil language in the State of Tamil Nadu and
Pondicherry; the applicant shall select good theatres for release of the film
all oover Tamil Nadu and Pondicherry and place it before the joint receivers
for their approval and selection; the joint receivers shall release 72 prints
of the film in all the 72 theatres so approved by them, which prints are
already ready in the custody of the first respondent/laboratory; the joint
receivers shall realise the collections from such release and deposit the same
in a Nationalised Bank in a separate account to be opened in the names of
joint receivers; such deposit shall be after deduction of tax and theatre
rents, if any post release publicity is needed, on intimation from the joint
receivers, the applicant shall bring the necessary fund to meet those
expenditures as well; the applicant shall have a priority claim for the
reimbursement of the money spent by him on pre release publicity and post r
elease publicity of the picture from and out of the collections at the time of
disbursement; the joint receivers are entitled to withdraw such sum of money
from the amount in deposit to defray any reasonable and lawful expenses, which
they may incur towards the release of the film, which would include wages for
representatives as may be appointed by them for all the theatres where the
picture is released; the 18th respondent, who holds a concluded contract for
exploiting the picture in overseas territories can take the prints at his cost
from the first respondent/ laboratory for export purposes only; the
disbursement of any amount from such collection either towards reimbursement
of the expenses incurred by the applicant towards pre release publicity or
post release publicity and return of the amount to any of the defendants shall
wait further orders from this Court; on the applicant meeting the necessary
expenses, the joint receivers shall permit the applicant to add a small
negligible missing portion of the film in the prints already available,
subject to the condition that he pays the actual cost of that process to the
first respondent/laboratory; the joint receivers shall arrange for the release
of the film within eight weeks from the date of receipt of a copy of this
order and the remuneration of the joint receivers shall be decided later on.
Call this application on 14-6-2005.
Though vehement argument was made by the learned senior counsel for the
appellant by pointing out the power of civil court under Section 9 4 C.P.C.,
provisions from Specific Relief Act (Sections 15 and 16), Sections 64, 65 and
170 of Indian Contract Act, 1872, as rightly observed by the learned Judge,
unless the film is exhibited and money is collected, no claim including the
priority claim of the appellant can be settled. We are satisfied that the
learned Judge while passing the interim arrangement by appointing joint
receivers was conscious of the above statutory provisions and in order to
mitigate the burden of the plaintiff and also by protecting the interest of
all creditors, more particularly the appellant laboratory, made the above
arrangement. The order impugned is not a final one. As a matter of fact,
even the learned Judge himself has posted the said application for appointment
of receivers to 14-6-2005 for further hearing. Inasmuch as the learned Judge
has not rejected the claim of the applicant and the present order has been
made as an interim arrangement, we are not inclined to interfere at this
stage. The appellant is free to raise all contentions with reference to the
above mentioned provisions including “bailee’s particular lien” under Section
170 of the Indian Contract Act when O.A.No. 789/2004 is taken up for hearing
on 14-6-2005. It is also relevant to note that as pointed out by the learned
counsel for the first respondent, the negatives will be with the appellant and
even the said arrangement, namely, appointing joint receivers was made at the
instance of all the parties, including the appellant who has not disputed the
fact of filing a memo before the learned Single Judge. As rightly observed by
the Division Bench of this Court in R.M. Subbiah Vs. N. Sankaran Nair,
reported in AIR 1979 Madras p.56, the picture that has been picturised on
celluloid, it would not be conducive in equity or in the name of justice to
keep such a completed picture in the shelves of a laboratory without the same
being exploited for the benefit of both the parties. It is also relevant to
note that the learned Judge has not permitted the plaintiff to receive the
money to be realised by the joint receivers. As pointed out by the appellant,
they are entitled lien over others, we hope and trust that the said claim will
be decided by the learned Judge considering the report of the joint receivers.
In the light of our conclusion and of our earlier order dated 11-3-2005 in
O.S.A.No. 37 of 2005, we are not inclined to admit the above appeal.
Accordingly, the same is dismissed with the above observation. No costs. The
connected C.M.P., is also dismissed.
R.B.
Index:- Yes
Internet:- Yes