IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 128 of 2005()
1. RAMESH PRASAD,
... Petitioner
2. SAI PRASAD, S/O. RAMESH PRASAD,
3. PRASAD PRODUCTION (P) LTD.
Vs
1. P.A. HARIES,
... Respondent
2. SIYAD KOKKER, S/O. A.B.ABDUL KHADER,
3. M/S. PRASAD FILM LABORATORY, CHENNAI.
For Petitioner :SRI.S.EASWARAN
For Respondent :SRI.P.A.AZIZ
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :15/06/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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F.A.O. No. 128 & 134 of 2005
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Dated this the 15th day of June, 2009.
JUDGMENT
Bhavadasan, J,
In these appeals, the respondents in I.A. 987 of 2003 in
Arbitration O.P. No.294 of 2003 before the District Court,
Ernakulam calls in question the order passed whereby they were
directed to suffer imprisonment for violating an order of
injunction. The parties are hereinafter referred to as they were
available before the court below.
2. The issue related to the release of a film by name
“Ayirathil Oruvan”. The petitioner before the court below claims to
be the producer and distributor of the Malayalam film and the first
respondent was alleged to be similarly situated. The second
respondent is the Laboratory located at Chennai. According to the
petitioner, the petitioner and the first respondent had arrived at an
agreement whereby the first respondent was to purchase the rights
over the film. An agreement to that effect was entered into on
22.2.2002. The schedule of payments was shown in the agreement.
FAO.128 & 134/05. 2
It is alleged that the cheques issued by the first respondent bounced for
want of funds. Therefore, the petitioner moved for a prohibitory
injunction. The matter went for arbitration and an injunction was
ordered in the arbitration proceedings whereby the respondents were
restrained from releasing the film and also handing over the negative or
the prints to anybody. Initial ad interim injunction granted was made
absolute. The allegation is that even though a modification of the order
was sought by the first respondent and that was infact granted, he had
failed to comply with the conditions stipulated in the said order and he
could take aid of the modified order. The allegation is that in violation
of the order of injunction the film was released. On the basis of these
allegations it was clarified that proceedings under Order 39 Rule 2A be
taken.
3. The respondents resisted the petition. It was pointed out
by them that there is no merit in the petition at all. The first respondent
contended that along with the Arbitration O.P. the first respondent had
filed I.A. 189 of 2002 seeking temporary injunction. It is claimed that
he entered appearance and filed a petition for appointment of a
FAO.128 & 134/05. 3
receiver. Processing of the film was completed and produced before
the Censor Board. Thereafter he moved I.A.760 of 2003 for a direction
to the second respondent, that is the Studio, to submit first copy of the
film before the Kerala State Chalachithra Academy for the purpose of
screening the film before the Award Committee for Kerala State
awards for Malayalam films 2002. A conditional order was passed.
The film was allowed to be exhibited before the Committee on
condition that the first respondent furnishes security for the amount due
to the petitioner. The security was produced on 5.4.2003. Bonafide
believing that the security furnished is sufficient, he issued a
communication to the second respondent to release copy of the film for
screening before the award committee on 7.4.2003. It was in the
evening of 7.4.2003 he was given to understand that the security
offered by him was not accepted by the court below. It was under these
circumstances that the film had been screened. It is pointed out by the
respondents that there is no wilful disobedience or laches on their part
and the situation arose under the circumstances mentioned above. He
therefore prayed for a dismissal of the petitions.
FAO.128 & 134/05. 4
4. The second respondent maintains the stand that he had
released copy of the film on getting instruction from the first
respondent about the furnishing of security. He bonafide believed the
communication so received by him and it was under those
circumstances he had released a copy of the film to be screened before
the Committee. According to him had he known that there was
infirmity in the security furnished by the first respondent or that the
court had not accepted the same, he would not have released the copy
of the film. According to him there is no wilful default or laches on
his part and that the proceedings against him need to be dropped.
5. Court below considered the rival contentions and came
to the conclusion that there was no bonafides in the stand taken by the
respondents and accordingly passed the impugned order.
6. The question that arose for consideration is whether any
interference is called for with the order of the court below.
7. Point: Learned counsel appearing for the appellants
pointed out that there was no justification for the court below in
passing the impugned order. It is pointed out that the first respondent
FAO.128 & 134/05. 5
before the court below had moved for a modification of the order of
absolute injunction on 3.4.2003. That modification petition was
allowed and the first respondent was asked to furnish security.
8. The first respondent furnished the necessary security
and informed the matter to the second respondent. Counsel appearing
for the appellant in FAO.134 f 2005 pointed out that he had no clue
that the court would reject the security furnished by him nor was there
any reason to believe that the security furnished by him was
insufficient. Learned counsel appearing for the appellants in FAO. 128
of 2005 pointed out that it was believing the communication given by
the first respondent before the court below that the copy of the film had
been released. Appellants had no reason to believe that the
communication was a false one in the circumstances of the case. It
could not therefore be said that the appellants in FAO.128 of 2005 had
wilfully disobeyed the order of injunction.
9. Learned counsel appearing for the respondents on the
other hand submits that there is no bonafides in the claim made by the
appellants. There was an order of injunction against them and they had
FAO.128 & 134/05. 6
flouted the same. True that there was modification of the order of
injunction, by which the film could be screened before the Award
Committee, but that was subject to conditions. Those conditions had
not been complied with, and therefore the appellants could not be under
the bonafide impression that their acts are justified.
10. Even though it may appear that the contention taken by
the respondents in these appeals is justified, on a closer scrutiny it can
be found that there is not much substance in the same. It is not in
dispute that there was an order of injunction restraining the respondents
before the court below from releasing copy of the film or screening the
same. It is also not in dispute that there was subsequent modification
of the order, whereby the film could be screened before the Award
Committee subject to the condition that the appellant in FAO. 134 of
2005 furnishing sufficient security for the amount due to the petitioner
before the court below. The conditional order was passed on 3.4.2003.
It is not in dispute that the security was furnished on 5.4.2003. It is
seen from the records that the Award Committee was to meet on
7.4.2003. Normally there were no reasons for the appellant in
FAO.128 & 134/05. 7
F.A.O.134 of 2005 to believe that the security furnished by him will
not be accepted and that it would be held that he had not complied with
the condition. So far as the appellants in FAO. 128 of 2003 is
concerned, there were no reasons for them to doubt the communication
received by them and they had acted on that basis. It is accepted by the
first respondent before the court below that he had sent a
communication to the second respondent before the court below
pointing out the modified order and requesting that the film be
screened before the Award Committee.
11. It may be true that later the court found that the
security offered by the first respondent before the court below was not
sufficient and it was rejected. That order seems to have been passed on
7.4.2003. It may be that the claim of the appellants is true.
12. In order to invoke Order 39 Rule 2A, it has to be found
that there was wilful disobedience of the order of the court. It is
significant to notice that there is no finding by the court below that the
act of the first respondent before it in furnishing security which was
later found to be not acceptable was deliberate or that he knew that it
FAO.128 & 134/05. 8
would not be accepted. There is nothing to show that there was
malafides on his part. The reason for rejecting the security offered by
the first respondent by the court below is not discernible from the
records made available to this court. The fact remains that the modified
order was passed on 3.4.2003 and the security was furnished on
5.4.2003. As per the records the Award Committee was to meet on
7.4.2003.
13. The observation of the court below that the second
respondent before that court ought to have verified that the
communication received by them from the first respondent was proper
and genuine and whether it was in consonance with the modified order
does not appear to be very correct. As already noticed, security was
furnished on 5.4.2003, which according to the first respondent before
the court below was in accordance with the order. There were no
reasons for the first respondent to believe that the security would be
rejected. If he claims that with bonafides he informed the second
respondent for screening the film before the Award Committee, it could
not be said that he had any ill motive. Merely, because on 7.4.2003 the
FAO.128 & 134/05. 9
court took up the matter and found that the security furnished was
insufficient by itself is not a ground to doubt the bonafides of the first
respondent before the court below. It is interesting to note that the
court below does not find that there was a deliberate attempt on the part
of the first respondent to take the court for a ride. There is nothing to
indicate that he had ill motive while furnishing the security on
5.4.2003. May be that later on when the court took up the matter the
security was found to be insufficient. But there is no finding by the
court below that the act committed by the first respondent was
deliberate or wilful. One has to remember that the Award Committee
was to meet on 7.4.2003 and the first respondent had obtained a
modified order enabling him to have the film screened before the
Award Committee subject to furnishing of security. There is no doubt
that he had furnished security. It is not stated by the court below and it
is also not found from the available records that the first respondent
had any intention to wilfully disobey the modified order. Merely
because at a later point of time the security furnished by the first
respondent was found to be insufficient cannot be relied on to come to
FAO.128 & 134/05. 10
the conclusion that it was a deliberate act.
14. The observation of the court below that the second
respondent ought to have verified the communication given by the first
respondent and having not done so, they are liable, cannot be accepted.
The second respondent is a Studio in which the film was kept. They
have clearly stated that it was on the basis of the communication
received by them that the film was released. The first respondent
accepted the said statement of the second respondent. One fails to
understand how the second respondent could be held to have disobeyed
the order of injunction passed by the court below.
15. In short, there is nothing to show that there was any
wilful laches, default or disobeyance on the part of the first respondent
or the second respondent warranting action under Order 39 Rule 2A of
the Code of Civil Procedure. May be that there was some laches on the
part of the first respondent, but that by itself is not a ground to come to
the conclusion that there was deliberate and wilful disobedience of the
order of injunction passed by the court below. One must recollect that
the film was screened on 7.4.2003 and the security had been furnished
FAO.128 & 134/05. 11
on 5.4.2003. In the facts and circumstances, it is difficult to accept the
finding of the court below that the appellants are guilty of violating the
order of injunction.
In the result, these appeals are allowed , the impugned order
is set aside and I.A. 987 of 2003 before the court below shall stand
dismissed.
P.R. Raman,
Judge
P. Bhavadasan,
Judge
sb.