JUDGMENT Bhagabati Prasad Banerjee, J. 1. F.M.A.T. No. 2592 of 1991 was filed by the appellant Dipti Pal, who is the producer of the Bengali feature film "Antarer Bhalobasa" filed against Sri Tapas Pal who had played the role of Hero in the said film. The dispute between the parties whether the producer can release the feature film "Antarer Bhalobasa" (referred to as the said film) without having the dialogues of the Hero Tapas Pal are dubbed after recording his voice in the said film and to release the same with the voice of some other persons in the facts and circumstances of the case. This appeal arose from an interim order of injunction passed by the learned Judge, City Civil Court at Calcutta dated 8.8.1990 by which the appellant had been restrained from releasing the said film without getting the voice dubbed by Tapas Pal, the opposite party herein Tapas Pal who acted as Hero in the said film, filed a suit being Title Suit No. 1862 of 1990 before the City Civil Court at Calcutta against the appellant Dipti Pal and Eastern India Motion Picture Association for a temporary injunction restraining the appellant from releasing the said film without recording and/or dubbing the voice of the plaintiff, Tapas Pal in terms of contact entered into by and between the parties and without complying with the order passed by the Joint Conciliation Committee of the Eastern India Motion Picture Association date 15/16.10.1990. The producer Dipti Pal also filed a suit being Title Suit No. 1862 of 1990 against Eastern India Motion Picture Association for declaration that the Eastern India Motion Picture Association has no manner of right to initiate any proceeding under clause 24 of the Articles of Eastern India Motion Picture Association (herein referred to as EIMPA) against the producer. In that suit filed by the producer, the actor Tapas Pal was not made a party, but subsequently on application being filed by Tapas Pal for additional party, he was made a party. 2. The facts relevant for the purpose of deciding this appeal are as follow: – The producer and the actor Tapas Pal who acted as Hero in the said film entered into an agreement dated 1.11.1989. The said agreement inter alia provides that the actor Tapas Pal shall work as an artist in the role of Hero in the said Bengali feature film. The said agreement inter alia provides that the actor Tapas Pal shall work as an artist in the role of Hero in the said Bengali feature film. The important terms and conditions of the said agreement are as follow: – Clause 2. That you shall work for 36 shooting days for which you shall be paid a lumpsum of Rs. 30,000/- which amount shall be paid in suitable installments. Clause 4. That apart from shooting days if you be required to attend the studio for rehearsals or for dubbing purpose etc. you shall not claim any remuneration for the same. Clause 5. That you shall report yourself punctually and without fail for your work in the above picture at the appointed time in the studio or in such other places as may be necessary and as required by us, failing which you are liable for damages and to refund your remuneration to us. Clause 9. You shall have no claim to any copy right or other right whatsoever in any song, music, composition, dialogue or other recorded or limited portion whatsoever occurring in the said procedure and we shall have the absolute right to record and reproduce any portion thereof by any means, electrical, mechanical or otherwise and including still photographs, posters, handbills and notices. 3. The outdoor shooting took place in various places and it is not necessary to go into this aspect of the matter in details, inasmuch as, the dispute started after the outdoor shooting was completed and the stage of dubbing and/or recording the voice reached. For the purpose of recording the voice of the actor and the actress and for recording musical effects, the producer booked National Film Development Corporation (herein referred to as NFDC) (Dubbing Studio) for the purpose of dubbing of the said Bengali feature film which was required to be booked for six months and that in the instant case, NFDC (Dubbing Studio) was booked from 1.6.1990 to 18.6.1990 and in that period dubbing has to be completed. There were some allegations and counter allegations by the producer and the actor against each other. According to the producer, the actor intended to take some financial and/or other advantage at the time of shooting and that the actor during such shooting, did something for which the shooting could not be continued peacefully and according to the desire of the Director. According to the producer, the actor intended to take some financial and/or other advantage at the time of shooting and that the actor during such shooting, did something for which the shooting could not be continued peacefully and according to the desire of the Director. On the contrary, the allegation of the actor Tapas Pal was that the allegations made by the producer were all false and frivolous. It is not necessary to go into this aspect of the matter, inasmuch as, these are matters required so be gone into by the court below during the hearing of the suit which is pending. This appeal is against an interlocutory order passed by the court below by which the producer had been restrained from releasing the said feature film without recording the voice of the actor Tapas Pal. There is no scope for going into the matter in details and to make final adjudication on the allegations and counter allegations made by the parties. 4. It was alleged that the producer apprehended the total non-co-operation during this dubbing for which the sound recording studio was booked from 1.6.1990 to 18.6.1990 and made some press statements which was published in the newspaper and the allegations made therein were also denied by the actor Tapas Pal. By the letter dated 12.6.1990 the producer informed the actor Tapas Pal that inspite of repeated requests he was not coming to the NFDC (Dubbing Studio) for the purpose of dubbing of the said film though booked as per is convenience and for which the entire progress of the completion of the film was delayed and the producer was to incur huge loss for the same. It was pointed out in the said letter that booking of NFDC was made six months before the consent of the actor Tapas Pal. It was further informed that the dubbing of other artists had already been completed since 1.6.1990 and only the dubbing of the actor who played the role of Hero could not be completed. It was further alleged that it was within the knowledge of the said actor Tapas Pal that the industry was going on strike on and from 6.7.1990 for an indefinite period. It was further alleged that it was within the knowledge of the said actor Tapas Pal that the industry was going on strike on and from 6.7.1990 for an indefinite period. Under such circumstance, request was made to the actor Tapas Pal to make himself available for dubbing at NFDC within three days from receipt of the letter, failing which it was stated, that the producer will be compelled to complete the dubbing at her cost and responsibility and that it would be construed that the actor had given consent for the same. By the letter dated 12.6.1990 the actor Tapas Pal informed the producer that the said dates for dubbing had been fixed without approaching him and that the producer was spreading calumnies against him and addressing him highly defamatory letters making wild and ridiculous allegations against Tapas Pal. It was further stated in the said letter that as he had no knowledge regarding dubbing schedule, he had accepted diverse assignments during the month of June, July & August, 1990 and that he could make himself available for dubbing on 15/16.9.1990 from 9:30 A.M. to 5:30 P.M. only at Calcutta provided the producer would confirm the dates within a week from the receipt of this letter. In the said letter, request was also made to pay a sum of Rs. 20,000/- being the balance remuneration payable by the producer to the actor Tapas Pal. 5. By the letter dated 14.6.1990 the actor Tapas Pal informed the producer that he was surprised to receive the letter dated 12.6.1990, inasmuch as, the allegations contained in the said letter were absolutely manufactured and afterthought. It was further stated that he was never intimated about the booking of the dubbing studio for the purpose of dubbing of the said film and it was absolutely false that he was never requested to attend the said studio for dubbing and the said dubbing centre was booked as per his convenience. In the said letter it was also stated that not call card had been issued as per the prevailing practice in the trade for attending the dubbing centre. Under these circumstances, the producer approached the Chairman, Producers Section, Eastern India Motion Picture Association drawing this problem for alleged non-co-operation and hindrances created by the actor Tapas Pal in the said feature film. Under these circumstances, the producer approached the Chairman, Producers Section, Eastern India Motion Picture Association drawing this problem for alleged non-co-operation and hindrances created by the actor Tapas Pal in the said feature film. In the said letter there are certain allegations which are not necessary to be gone into. Ultimately, in the said letter it was stated that I am now afraid whether he would co-operate with me in dubbing period which will start from 1.6.1990 to 18.6.1990 at NFDC, Behala. I have also lost a good amount to cover all the errors, omission made by the hero and, if dubbing programme is also heopardised, I will be in soup. We further request you to enquire into my charges and do the needful. Copy of such letter was addressed to the Secretaries of Abhinetri Sangha, Silpi Sangsad and F.F.T.W.E.I. for information. 6. On receipt of the said letter from the producer, a special officer of EIMPA by the letter dated 4/6.6.1990 for awarded a copy of the letter of the producer to M/s. Dipti Pal Production and requested the actor Tapas Pal to complete the rest of the shooting/dubbing etc. concerning the production of "Antarer Bhalobasa" under the production M/s. Dipti Pal production. By the said letter the actor Tapas Pal was requested to send his comment within ten days as the complaint in question along with comments had to be placed before the Joint Conciliation Committee at its next meeting for consideration and disposal, failing which the complaint will be disposed of ex-parte by the Joint Conciliation Committee. By the letter dated 7.8.1990 he actor Tapas Pal denied the allegations made by the producer before the EIMPA and it may be mentioned that initially the actor Tapas Pal challenged the jurisdiction and/or authority of EIMPA to go into the question, but subsequently, withdraw such objection regarding jurisdiction of EIMPA to go into the question. Ultimately the Joint Conciliation Committee of EIMPA passed an order/award directing the producer to make payment of the balance remuneration of the actor Tapas Pal and to get the voice dubbed by Tapas Pal only and also withdrew the allegations made against the said actor. Ultimately the Joint Conciliation Committee of EIMPA passed an order/award directing the producer to make payment of the balance remuneration of the actor Tapas Pal and to get the voice dubbed by Tapas Pal only and also withdrew the allegations made against the said actor. Ultimately, by the letter dated 24/26.11.1990, the Secretary of Eastern India Motion Picture Association informed the appellant/producer that the Executive Committee of EIMPA in its meeting held on 21.11.1990 after going through a reference from the Joint Conciliation Committee dated 19.11.1990 in respect of the complaint observed that the producer was responsible for non-compliance with regard to the directive to said Joint Conciliation Committee's decision and as such the producer was directed to show cause within 15 days from the date of the said letter why the action in clause 24 of the Article of Association of EIMPA should not be taken against the appellant. Incidentally, it may be mentioned that clause 24 of Articles of Association of EIMPA provides power upon the Executive Committee to suspend the membership of the members of EIMPA for such period as the Executive Committee may think fit, over and above the imposition of such amount as may be deemed fit or may be prescribed in the Rules and/or Bye-laws made therein on the defaulting member and fix a time not earlier than 15 days from the date of the resolution for payment of such fine. In case the members fail or refuse to pay the fine within the period, the Executive Committee may instead of imposing a fine under the prescribed clause, suspend such member. 7. The Court below on consideration of the facts and circumstance of the case and the provisions of the memorandum of Articles of Association of EIMPA and other relevant papers and documents, stayed the operation of the notice dated 24/26.11.1990 by which the penalty as provided in clause 24 of the Articles of Association, was sought to be imposed. But the court below passed an interim order of injunction restraining the producer from releasing the said film without getting the voice of the actor Tapas Pal dubbed. Against this order, the present appeals had been preferred by both the parties. 8. But the court below passed an interim order of injunction restraining the producer from releasing the said film without getting the voice of the actor Tapas Pal dubbed. Against this order, the present appeals had been preferred by both the parties. 8. An affidavit was affirmed by the Director of the said film, Bimal Roy before the court below, wherein it was alleged by him that on or about 1/2.1.1990 he had discussion with Tapas Pal regarding fixing of dubbing dates with NFDC, Behala and as per his convenience and with his consent, he instructed Sri Bablu Guha, Production Manager of M/s. Dipti Pal Production to fix up the dubbing dates at NFDC, Behala between 1.6.1990 and 15.6.1990. It was further alleged that the actor Tapas Pal non-co-operated with the shooting of the said feature film, especially at Gangtok, since he had differences with M/s. Dipti Pal Production. The actor Tapas Pal was scheduled to do outdoor shooting from 1.5.1990 to 15.5.1990 at Gangtok. On 15.5.1990 leaving the shooting incomplete, he left Gangtok and two songs partly with Tapas Pal as hero and Mandakini as heroin and one song and dialogue with hero and heroin could not be completed as per schedule. It was further alleged by the Director on affidavit that while shots were being taken, Tapas Pal who played the role of hero, occasionally started laughing, thereby making the shots a total loss. It was further stated that on 10.6.1990 the director personally accompanied by Sri Bablu Guha, visited NT Studio No. 1 at 11 A.M. and requested Tapas Pal to come and complete the dubbing of the feature film on 11.6.1990. However, he failed and neglected to turn up. In the said affidavit it was further stated that ultimately, he had completed the Bengali feature film in 35 m.m. in all respects, as per requirements and the same was ready for release in the market. Bablu Guha, Production Manager also affirmed an affidavit in support of the statement made by the director Bimal Roy that the booking for the purpose of dubbing dates between 1.6.1990 and 15.6.1990 was fixed after obtaining the consent of Tapas Pal and according to his convenience and that the actor Tapas Pal had consented to make himself available on the said dates for the purpose of dubbing. It was also alleged in the affidavit that on 25.5.1990 he accompanied by Hari Bhattacharjee, went to he hero Tapas Pal and requested himself to make available for dubbing centre at Behala between 1.6.1990 and 15.6.1990. It was alleged that Tapas Pal said that he would teach Smt. Dipti Pal a good lesson and he would totally non-co-operate with the completion of the said Bengali feature film. It was further alleged that on 10.6.1990 he accompanied with the director Bimal Roy visited the NT Studio No. 1 at Tollygunge and met Tapas Pal and both of them jointly requested Tapas Pal to complete the dubbing and Tapas Pal agreed to do the dubbing on 11.6.1990, but he failed and/or neglected to come. It was further alleged that the met Tapas Pal on 13.6.1990 and further requested Tapas Pal to complete the dubbing but of no effect. Hari Bhattacharjee, Chief Production Manager (Film) also affirmed an affidavit is support of the statements made by the Director Bimal Roy and Production Manager, Bablu Guha. Ultimately, according to the appellant, in order to complete the film and release the same in the market, the producer had no other option but to dub the voice of some other persons instead and place of voice of Tapas Pal. Under such circumstance, the question arises for our consideration, is whether in view of the order and/or the award passed by EIMPA can be the film in question could be allowed to be released and secondly, whether the said film can be allowed to be released without recording the voice of the hero Tapas Pal in the facts and circumstance of the case. 9. Mr. Sakti Nath Mukherjee, learned Counsel appearing on behalf of the appellant contented that the right of the parties flows from the agreement in question which was entered into by and between the producer and the actor Tapas Pal dated 1.11.1989. Under the agreement relevant provision was made in clause 4 in which it was provided that apart form shooting days if you be required to attend the studio for reheated or for dubbing purpose etc. Under the agreement relevant provision was made in clause 4 in which it was provided that apart form shooting days if you be required to attend the studio for reheated or for dubbing purpose etc. you shall not claim any remuneration for the same and clause 9 provides you shall have no claim to any copyright or other right whatsoever in any song, music, composition, dialogue or other recorded or filmed portion whatsoever occurring in the said production and we shall have the absolute right to record and reproduce any portion thereof by any means, electrical mechanical or otherwise and including still photographs, posters, handbills and notices. According to Mr. Sakti Nath Mukherjee from the terms and conditions of the agreement, the actor Tapas Pal had no legal right to be enforced by the court or by any authority that the said film cannot be completed and/or released without getting his voice dubbed. On the contrary, the contention of Mr. Roychowdhury learned Counsel appearing on behalf of the actor Tapas Pal is that when the acting has been made by Tapas Pal who acted as hero in the said film, the said film cannot be allowed to be released with the voice of somebody else and that would cause irreparable loss to the actor concerned. It was further submitted the acting does not mean that it is to done silently, the voice is very important and relevant factor in such feature film. The second point is that in the facts and circumstance of the case, the order and/or award given by EIMPA had debarred the producer from approaching the court and getting the order of injunction against such an award and/or order when it was initiated by her and when the Eastern India Motion Picture Association had been called upon to adjudicate or decide the dispute between the parties and after the EIMPA had adjudicated the dispute against the producer Dipti Pal, it is no longer for the producer to turn round and come to the court contending that they had no authority and such decision was not binding. In order to appreciate this aspect of the matter, it is necessary to appreciate the role of the producer and the director in the industry. The director creates the film from the words of the script. In order to appreciate this aspect of the matter, it is necessary to appreciate the role of the producer and the director in the industry. The director creates the film from the words of the script. He directs the movements of the actors and the camera and has competed control over both. It is he who decides when a scene is ready to shoot when it stops and whether is must be done again. Now it is the rule for the director to supervise personally every stage of the film until it is completed, especially the editing. Producer had a great financial stake inasmuch as, it is the producer who produces film through the director with the help of actors and other technicians. Production of a feature film is always a complex and unpredictable event. Making of a feature film is expensive. A highly organized army of arties and technicians headed by a director and a producer, turn a rough script into a polished film for the cinema. It is the work of a team of artists and technicians headed by the director, financed and supplied by the producer all of whom work together at intense pressure for a relatively short space of time. All films start with some sort of script, even if, in extreme case, it is no more than a few notes jotted down by the director the day before shooting. With regard to the recording of sound is concerned, sometime sound is recorded at the time when the film is shot. There are two kinds of sound in a film, synchronous sound and non-synchronous or dubbed sound. Synchronous sound is sound recorded during the shooting of a scene for example, a conversation sequence, where the words the actors speak are recorded while they are being filmed speaking them. However, many scenes do not require lip-synch as it is known, but depend upon effect footsteps, laughter, car noises or on music. All those effects although often recorded on location, can be synchronized with the film later, or post-synched, since it is not so important that image and sound coincide so exactly as inconversation. Since shooting with synchronous sound requires much more expensive equipment and depends upon absolute silence apart from the words which should be recorded, as many as possible are post-synched. Since shooting with synchronous sound requires much more expensive equipment and depends upon absolute silence apart from the words which should be recorded, as many as possible are post-synched. Once all filming and sound recording is complete, editing begins in earnest, and may last for months. These are the practical place of information, which we got from the book. The Marshall Cavendish Encyclopedia, Mind Alive, Volume 8 at page 2053. How dubbing is made, is also explained in this book at page 2056 the "Before combining the various sound tracks and the picture film, the various opticals must be incorporated. These opticals produced in the laboratory which develops and prints the film, are special effects like dissolves (where the picture disappears as it merges into another scene), fade-out (where the scene slowly darkens to blackness) and super-imposition (where two images run together). The fine cut is now complete. During the mixing session the sound tracks (music, sound effect and dialogue) are made into one master track in which all the sounds are co-ordinated to fit exactly over the accompanying picture at exactly the right volume or level. There may be as many as 20 or 30 different tracks to be fitted in. The process is controlled by a technician known as the dubbing mixer, who fades the volume of the tracks up, down or out according to the director's instructions. With the sound recorded on the master track, the film is very never completion. Only one major task remains before the film and sound track are combined, the negative film must be cut to the specifications of the fine out. The negative film is the master copy from which all subsequent prints are taken, as such, it is very valuable, and the negative outing process is a very delicate one, rather like a minor piece of surgery. The sound track is then transferred on to the film. From this master copy, the prints for release to the cinemas are taken. These prints very considerably according to when they were made, the first prints are naturally the best, and go to the more expensive first run cinemas. This makes the end of the actual production of the film and the beginning of the film's public fit." 10. Mr. From this master copy, the prints for release to the cinemas are taken. These prints very considerably according to when they were made, the first prints are naturally the best, and go to the more expensive first run cinemas. This makes the end of the actual production of the film and the beginning of the film's public fit." 10. Mr. Sakti Nath Mukherjee, learned Counsel appearing on behalf of the appellant Dipti Pal submitted that EIMPA is a company registered under the Companies Act, 1913 and the same is company limited by guarantee and have four classes of members Producer-Member, Distributor-Member, Exhibitor-Member and Associate-Member (Studio, Laboratory etc.) and that EIMPA can deal with the complaints amongst the members only as per their bye-laws relating to the disposal of disputes. Reference was made to clause 3 (xix) (a) of the Memorandum of Association of EIMPA which provides as follows: – The objects of the Association are: – To encourage settlement of disputes between members of the Association inter se or between a member or members of the Association and other person or persons arising out of commercial transactions and in particular out of transactions relating to manufacture, production, distributions, show, exhibitions, exploitation and all other matters connected with the film trade and industry by conciliation, mediation and/or arbitration and to act as or nominate arbitrators, mediators and conciliation bodies on such terms and in such cases as may be deemed expedient. 11. Reference was also made to clause 37C and 37D of the Articles of Association of EIMPA which are as follows: – 37C – To give effect to the provisions of clause 3 (xix) (a) of the Memorandum of Association of the Association the Executive Committee shall frame appropriate bye-laws to be effective only after the approval by the Association in a general meeting. Without prejudice to the generality of the provisions of this clause such bye-laws shall provide for constitution of Conciliation Board. Complaints Committee and appellate committee and the procedure to be followed for adjudication of disputes. Provided however, the Executive Committee, after adoption of the bye-laws as aforesaid at a General meeting of the Association shall have power to amend the said bye-laws or any provision thereof as may be deemed expedient. Complaints Committee and appellate committee and the procedure to be followed for adjudication of disputes. Provided however, the Executive Committee, after adoption of the bye-laws as aforesaid at a General meeting of the Association shall have power to amend the said bye-laws or any provision thereof as may be deemed expedient. Provided further that the amendments of fundamental nature if there be any shall be placed before the General Meeting of Members for approval within 3 months from the date of such amendment by the Executive Committee. 37D – The decision of the Complaints Committee or where an appeal has been preferred therefrom of the appellant committee both such committees to be constituted under the provisions of the bye-laws to be framed under the provisions of clause 37C hereof, shall be deemed to be the decision of the Association on the disputes concerned and shall be binding on the members concerned. 12. It was submitted by Mr. Sakti Nath Mukherjee that for the purpose of adjudication of disputes, no bye-laws was framed creating such authority and that whatever the decision that has been given by the Joint Conciliation Committee (J.C.C.) is not binding, inasmuch as, no such committee has been created under the provisions of the Articles of Association of EIMPA. 13. Mr. Jayanta Mitra, learned Counsel appearing on behalf of the Eastern India Motion Picture Association contended that this is the only body created for the purpose of adjudication of the disputes in the film industry and that in the instant case, as in other case, the said authority had adjudicated the dispute between the parties and if any pronouncement is made by this court in such a matter, that would have a serious repercussion in the film industry. It was also contended that when a party has voluntarily approached the said EIMPA for adjudication of the disputes and when that party had adjudicated that dispute and when ultimately, the Executive Committee of EIMPA had accepted the decision of the point Conciliation Committee, the same was binding and the same cannot be called in question before any court of law. It is his argument Mr. It is his argument Mr. Jayanta Mitra submitted that the party who had voluntarily submitted his jurisdiction and invited to give a decision and when the decision was against her, he cannot be permitted to turn round and come to the court challenging the jurisdiction of such an authority and, or the validity of such decision. At this interlocutory stage, we are not inclined to express any view on the question, inasmuch as, this question is required to be gone into in details by the court below at the time of the trial when the parties would be at liberty to adduce evidence and make submissions on this question. In view of the fact that even assuming that the producer bas approached EIMPA for arbitration for a particular dispute, normally the party cannot be permitted to turn round. In the instant case, the producer approached the Managing Director of EIMPA by the letter dated 23.5.1990 in which the producer had made certain allegations against Tapas Pal and that the only dispute that was raised before the Chairman of Production Section for adjudication, was with regard to non-co-operation of the actor Tapas Pal in the matter of dubbing of voice which was scheduled to start from 1.6.1990 to 18.6.1990. On 23.5.1990 such a complaint was lodged before the EIMPA in which request was made for intervention so that the actor Tapas Pal be compelled to co-operate with the producer for dubbing during the period 1.6.1990 to 18.6.1990, and in view of the affidavits filed by the Director, Production Manager and others, it also appears that such date was fixed with the knowledge and consent of Tapas Pal. Even assuming that this is a prayer for arbitration made by the producer before the Chairman, Production Section, but the scope of dispute is limited, and that is to say a dispute is limited to the participation of the actor during dubbing which would continue from 1.6.1990 to 18.6.1990. But in the instant case, a direction was given by EIMPA after lapse of more than a year to the extent that the producer could not release the said film without dubbing the voice of the actor. According to Mr. Mukherjee, the producer had not entered into an arbitration agreement, nor approached the EIMPA for any arbitration. But in the instant case, a direction was given by EIMPA after lapse of more than a year to the extent that the producer could not release the said film without dubbing the voice of the actor. According to Mr. Mukherjee, the producer had not entered into an arbitration agreement, nor approached the EIMPA for any arbitration. Only a request was made for enquiry and do the needful concerning anticipated non-co-operation of Tapas Pal during dubbing period 1.6.1990 to 15.6.1990 and admittedly, an order was passed on the strength of such complaint by EIMPA which was communicated by Tapas Pal the letter dated 24/26.6.1990 whereby Tapas Pal was directed to request you kindly to complete the rest of the shooting dubbing etc. concerning the production of "Antarer Bhalobasa" under production by M/s. Dipti Pal Production. This was not carried out by the actor Tapas Pal and on the contrary, lot of deliberations went on and ultimately, a direction was issued by the (J.C.C.) as indicated above and for non-compliance of the same, an action was proposed to be taken under clause 24 of the Articles of Association, either imposing fine or suspending the membership. It was the submission of Mr. Mukherjee that when an actor entered into an agreement and the terms and conditions embodied under the agreement, party cannot travel beyond the agreement. The agreement did not confer any right on the part of Tapas Pal to contain that his voice should be dubbed and recorded and the film would not be released without getting his voice dubbed. In this connection, reference was also made by Mr. Mukherjee to the passage of the Book Intellectual Property Law by P. Narayanan and our attention was drawn at page 244 of the said book under the heading "Dramatio Works" wherein it was provided that: – "Copyright subsists in original dramatic work and its adaptation. A dramatic work includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise. A cinematograph film is not a dramatic work although the script or scenerio for a cinematograph film is a dramatic work." 14. A dramatic work includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise. A cinematograph film is not a dramatic work although the script or scenerio for a cinematograph film is a dramatic work." 14. Reference was also made to Chapter 32 of that book at page 261, wherein it was observed that: – "Copyright is not a positive right but a negative right that is the right to stop others from exploiting the work without the copyright owner's consent or licence. Thus where, for instance, the work is derived from some other work in which copyright subsists as in the case of translation, adaptation or abridgement of a literary work the author of such work can stop others from exploiting it but cannot himself exploit that work without the consent or licence of the original work from which the work has been derived. Copyright is not a single right but a bundle of rights which can be exploited independently. Further, the nature of these rights depends upon the category of work. But one right which is common to all works is the right to reproduce or make copies of the work. The owner of a copyright may exploit the work himself or licence others to exploit any one or more of the rights for a consideration in the form of royalty or a lumpsum payment." 15. Reference was also made at page 262 of that book regarding performing artist's rights and in that connection, it was observed that: – "An artist who performs a dramatic or musical work has no right in relation to his performance except that which exists from the contract with the organisers of the performance under which he performs. There is no copyright in the performance as such, although the owners of the copyright in the dramatic work in the lyrics and music can restrain unauthorised publications of the performance. The performer has, as the law now stands no cause of action against a person who records his performance or deals in a recording of it made by somebody else. To prevent unauthorised recording of his performance the performers have to enter into specific contractual agreement with the organisers of the performance prohibiting such recording. The performer has, as the law now stands no cause of action against a person who records his performance or deals in a recording of it made by somebody else. To prevent unauthorised recording of his performance the performers have to enter into specific contractual agreement with the organisers of the performance prohibiting such recording. Limitations on copyright the exclusive right conferred on a copyright owner is subject to a number of exceptions which are discussed in the chapter on infringement of copyright." 16. According to Mr. Mukherjee, it cannot be contended that the voice which had not seen light of the day and which had not come out, cannot be said to be an intellectual property. Intellectual Property may be of different types. In a feature film the role of a director is very important and pre-cominent, unless the agreement provides it is the director who has to decide how and in what manner the acting should be done by the actors or the hero or heroin. It is within the domain of the director to decide whether a particular sound should be sound by the actor or nobody else sound should be shown to have been sound by the actor or actress. There may be occasion where the actor had to render lip service but the voice may be of some other person. These are the matters for the director to decide. When the right of the artist flows from the contract and when the matter has come up before the court, the court has to find out the rights, obligation and duties of the parties from the contract. Acting in a particular film is a personal contract and the question is whether personal contract or contract for service could be enforced by a specific performance of a contract. The first question is required to be decided, inasmuch as, the court below had no occasion to decide this aspect of the matter. The court below proceeded on the footing, that unless the voice of the actor was dubbed, the film cannot be allowed to be released. Initially, the total remuneration which the actor would get under the contract for shooting and dubbing, is Rs. 30,000/-. Now the film is completed and the director had recorded the voice of some other person and Mr. Initially, the total remuneration which the actor would get under the contract for shooting and dubbing, is Rs. 30,000/-. Now the film is completed and the director had recorded the voice of some other person and Mr. Mukherjee, learned Advocate appearing on behalf of the appellant stated before this court that if it is allowed to be released without the voice of the Actor Tapas Pal and the voice was of some other person, no harm is caused to the actor. Mr. Roychowdhury, learned Advocate appearing on behalf of the actor Tapas Pal submitted that in cinema acting includes voice and voice also plays a very important role in such feature film. 17. The art of motion pictures is exceedingly complex, requiring contributions from nearly all of the other arts as well as counties technical skills. The motion picture is the newest of the generally recognized fine arts. We are no longer in silent film age. In motion picture sound and dialogue plays a predominant roll in the motion picture produces works of dramatic art or of mass entertainment. In modern film we cannot think of an acting without a dialogue inasmuch as, acting includes voice and dialogues of the actor. Of course, it is within the domain of the director whether to use more dialogues or less dialogue or none. Even though on the face of the agreement it does not appear that there is an expressed prohibition that it would be compulsory on the part of the director and/or the producer to record dialogue and the voice of the actor Tapas Pal. In the instant case, it is admitted position that it is only after the producer failed to get the voice of the actor recorded in the sound track, they had resorted to record the voice of somebody else instead and place of the actor. On the contrary, there was no provision in the agreement which created any right on the part of the producer and/or director not to record dialogue and voice of the actor who is playing the role of hero in the film. On the contrary, there was no provision in the agreement which created any right on the part of the producer and/or director not to record dialogue and voice of the actor who is playing the role of hero in the film. In the instant case, the director and the producer at no point of time had taken a stand that it is no longer the requirement under the contract to record the voice and/or the dialogue of the actor while sound recording and that the actor was only engaged for the purpose of silent acting as already stated, the age of silent movies has come to an end. The meaning of the word acting according to Webster's Third International Dictionary is the art or practice of representing a character of the artist or in a motion picture or Radio or Television a particular mode of style of such representation. On the basis of the materials placed before this court, it is difficult to hold that acting does not include dialogue or the effect of dialogue of the actor or actress concerned, inasmuch as, through acting, the actor and the actress had to create an image in the mind of the audience according to the direction of the director. It is a place of fine arts. Through film the actor and the actress have to represent to the audience the image of a particular role. In feature film when an actor or actress has to play the role dialogue of the actor or actress becomes an integral part of the acting. Of course, there may be cases where the director may record somebody's voice or dialogues or use some other languages through the mouth of the actor. It is one actor who has to create effect and ordinarily in cinema the audience are attracted by name of he actor or actress or by name of the director who directs the film. There are eminent directors in the film world whose films are regarded by people as classic and the audience are attracted because it is the work of a renouned director. There are eminent directors in the film world whose films are regarded by people as classic and the audience are attracted because it is the work of a renouned director. There may be cause where the director may not renouned, but the actor and actress are renouned and that the fan of the actor or actress comes to see the film and in such a case audience are attracted because of the existence of a particular actor or actress in the film concerned. Ordinarily dialogue or the manner in putting dialogue in a particular art of actor or actress stimulates the spectator's imagination. It is difficult to contemplate that in modern motion picture an actor has only to act silently and has no right to get his voice and dialogue recorded by the director and/or the producer. Accordingly, whether or not this is provided under the expressed provision of the agreement, we are unable to hold that where there in an agreement for acting, the actor will have no right to record his voice and that each and every case, the director and the producer would be at liberty to release the film without recording the voice of the actor or actress and to replace the voice of some other person, the effect may be disastrous. Ordinarily, the actors or actress is interested in maintaining his/her reputation in the film world be causing of their acting and that it is undisputedly that the acting of actor and actress is recognised fine arts and the fine art includes acting and dialogue. Accordingly, we are unable to accept the submission of Mr. Mukherjee that under the agreement in question, the actor Tapas Pal has no right to complain, in case the film is released without recording his voice and after recording the voice of somebody else in the film, it is exhibited. When the film is exhibited, everybody will know that the dialogue that may be used is the dialogue of Artist Tapas Pal. Of course, it was suggested by Mr. Mukherjee that while exhibiting the film, if it is permitted by court to do so. It will be indicated in the film that the voice which was used in the lips of the actor, is not the voice of the actor. Of course, it was suggested by Mr. Mukherjee that while exhibiting the film, if it is permitted by court to do so. It will be indicated in the film that the voice which was used in the lips of the actor, is not the voice of the actor. But this general notice to the audience, in our view, may not be sufficient to protect the interest of the actor concerned, inasmuch as, if the dialogue is of high standard, certainly the audience will think that is the standard acting of a particular actor. But in the next film when the actor will come with his own dialogue, that may have some effect on the career of the actor concerned. On the contrary, the dialogue is not of high standard, in that event, that is bound to destroy the image and/or reputation of the actor concerned. After all when an actor in engaged in the film world and earning his livelihood through acting in film, nothing should be done which will destroy the image and/o the reputation of the actor and/or the actress concerned. For the producer it is a commercial venture. For artist acting is for livelihood. They are earning livelihood by exhibiting their fine arts. 18. Specific performance is equitable relief given by the court to enforce against the defendant the duty of doing what he had agreed under a contract to do. This remedy is special and extraordinary in its character and the court has a discretion either to grant it or to leave the party to peruse other remedies viz. damages. In the instant case, the question that has been raised by Mr. Mukherjee is whether in the facts and circumstance of the case, could there be any specific performance of the contract or in other words, could there be an interim order of injunction passed by the court in the suit for specific performance of the contract to compel the producer to change the entire sound track which has been transformed to the film after spending huge money and to start afresh the recording of the voice of the actor or actress. It appears that these are very complicated and the process is controlled by a technician, known as dubbing mixture. Admittedly, in the instant case, the process of the film is over and the film is ready for exhibition. It was argued by Mr. It appears that these are very complicated and the process is controlled by a technician, known as dubbing mixture. Admittedly, in the instant case, the process of the film is over and the film is ready for exhibition. It was argued by Mr. Mukherjee learned Advocate appearing on behalf of the appellant that this would cause extreme hardship. In Halsbury's Laws of England Volume 44 at para 472 it was observed that "Another from of oppressiveness which may prevent specific performance is where performance would involve, even though without any impropriety on the part of the plaintiff, great hardship to the defendant, so much so that it would be unreasonable and harsh to grant equitable relief." 19. The next question is with regard to the orders and the direction issued by EIMPA. The role of EIMPA in the film in this part of the country is very significant. True, the producer was reached EIMPA for redress of the grievance against the actor and the question is whether EIMPA, in the facts and circumstances of the case, had jurisdiction to issue such an order and direction not to release the film without dubbing the voice of Tapas Pal, is a matter to be considered by the court below on the basis of the evidence and on the basis of consideration of various other factors and at this stage it is not necessary to go into this question. Mr. Mitra learned Counsel appearing on behalf of EIMPA may be right in contending that when the producer had approached the EIMPA and on the basis of invitation of EIMPA, EIMPA had given a decision, it would not be open to the producer to turn round and challenge the jurisdiction of EIMPA to pass such an order. It is well established principle that consent cannot confer jurisdiction. But if the jurisdiction is there, in that event, ordinarily, a person concerned at whose instance and/or initiative a decision is given, is deburred from challenging that decision. But in the instant case, the award and/or decision that has been given by EIMPA is not statutory one and not governed by the provisions of Arbitration Act and that under the Articles of Association and/or Memorandum of Association of EIMPA, there is no mode of enforcing order and/or direction by EIMPA executing imposition of fine and/or suspension of membership. But in the instant case, the award and/or decision that has been given by EIMPA is not statutory one and not governed by the provisions of Arbitration Act and that under the Articles of Association and/or Memorandum of Association of EIMPA, there is no mode of enforcing order and/or direction by EIMPA executing imposition of fine and/or suspension of membership. In that view of the matter, ultimately if it is found that EIMPA had jurisdiction to pass such an order and that the order is binding upon the producer, in that event, under the Articles of Association and/op Memorandum of Association and/or bye-law of EIMPA, EIMPA can penalize the producer by way of imposition of penalty and suspension of membership as the case may be. But such imposition of fine and/or suspension of membership of EIMPA cannot stand in the way of release the film. When a decision has been given by EIMPA and when there is no specific performance of the scope to compel the authority concerned to comply with the order, we are of the view that the court below passed interim order in respect of the proposed penalty of EIMPA, does not call for any intervention by this court at this stage, inasmuch as, ultimately if it was found that the EIMPA had authority and/or jurisdiction to pass such an order, in that event, the punishment and/or penalty that may be imposed under Article of Association of EIMPA would be imposed at a later stage. Accordingly, we are not making any pronouncement on the authority and/or jurisdiction of the EIMPA and the constitution of the committee who had given the decision and/or the effect of such decision. These are the questions which are required to be gone into the suit when the suit will start for hearing. These things are required to be decided on the basis of the evidence and examination of various records and documents. At this stage, we are not to decide any other question. Now the question is whether in the facts and circumstance of the case, when the film has been completed without recording the voice of Tapas Pal, the said interim order of injunction should continue for an indefinites period of time deburring the producer from releasing the film or to allow the film to release. Now the question is whether in the facts and circumstance of the case, when the film has been completed without recording the voice of Tapas Pal, the said interim order of injunction should continue for an indefinites period of time deburring the producer from releasing the film or to allow the film to release. We have not held at this stage that the producer is entitled as a matter of right to release the film without recording the voice or dialogue of the actor Tapas Pal who had played the role of hero and that on the basis of the materials on record, we are of the view that unless the director from the very beginning decided not to use dialogue of the actor while acting in the film and that such a situation was agreed upon by the actor before the film had been commenced, the producer and the director cannot deny the right of the actor who is playing the role of hero but deny getting his voice recorded and to get the film released only after the recoding of his dialogue and voice. There may be a case of non-co-operation, misunderstanding and quarrel between the parties. But there are not material factors for deciding the matter like this. We are of the view that if the film is not allowed to be released, that will cause great hardship to the producer. But at the same time if it is allowed to be released that may cause damage to the reputation of the actor who had played the role of hero. At this stage, we have to strike a balance between the claims of the rival parties. In view of the peculiar facts and circumstances of the case, it would create a great hardship on the part of the producer to compel the producer to release the film after fresh recording of sound, particularly the voice and dialogue of the actor Tapas Pal and at the same time when this court fells that such release may cause damage to the reputation and standing of the actor concerned, such loss and/or damage to the reputation and/or standing of the actor concerned could be compensated to some by awarding damages. If the order is passed to release the film, we have to secure the right of the actor to get adequate compensation for the loss or damage that may be made to the standing and reputation of the actor which is the only asset of the actor in the film world. The impression which the actor or actress cerates in the mind of the audience, is a very material factor and the rise or fall of an actor in the film world depends on such an effect of the mind of the audience. 20. In view of the facts and circumstance of the case, we are of the view that the film should be allowed to be exhibited on certain terms and conditions and after receiving the right of the actor to get adequate compensation and protection regarding his standing and reputation in the film world. Before the film is released, the producer should make publicity without making any aspersion against the actor that due to unavoidable circumstance and circumstances beyond the control of the parties, the voice and dialogue which would be used through acting of Tapas Pal, was not that of Tapas Pal and the name of person or persons concerned whose voice was used, should also be disclosed. Apart from wide publicity in the film itself, there must be such a declaration in such a manner so that the audience may come to know of the same, particularly when there would be a dialogue through the mouth of the actor Tapas Pal, it should also be exhibited in the manner in which sub-title is used that it was not he voice of the actor. So that the audience would come to know and is reminded from time to time that the voice which was used in the film, was not the voice of Tapas Pal, but that of some one else. When we are directing the film to be released, there could no longer be any scope for declaration that the actor was entitled to have his dialogue dubbed and recorded his voice and the producer was not entitled to have the actor's dialogue recorded redubbed to the voice of any other person in respect of feature film. But the court below should allow the plaintiff Tapas Pal to amend the plaint and convert the same as a damage suit. But the court below should allow the plaintiff Tapas Pal to amend the plaint and convert the same as a damage suit. At this stage, we cannot pass any order which would keep the actor Tapas Pal without any remedy under the law and that we cannot pass any order by which the producer can succeed in the suit without a regular trial. For the ends of justice and for protecting the rights of the parties in a peculiar fact circumstance of the case, the court below should allow the suit to be converted into a suit for damage and if it is ultimately found that the actor is entitled to damages, the court will pass a decree for adequate damages to compensate the loss. This course of action is adopted by us in this case considering the peculiar nature of dispute which has not come up before us earlier and we are deprived of the benefit any precedent in this matter. We are of the view that the technicalities and/or the rules of procedure should not stand in the way of passing the order. The court cannot allow multiplicity of proceedings, but the court can take a view of the matter, so that the parties to the litigation do not suffer because of procedural hardless obstacles. The court has to evolve the procedure for the ends of justice and particularly in view of peculiar circumstances, the rules of procedure and/or the old notion cannot meet with a new situation and deal with new problem which has to be faced by this court. Under such circumstances, the court has to evolve a procedure for the ends of justice and technicalities should not be allowed to stand in the way. When there is a bona fide dispute before the court below at the interlocutory stage, we cannot take away the rights of parties and at the same time, we cannot allow the parties to suffer hardship and financial loss. Taking this view of this factor, we set aside the order passed by the court below by which the court below restrained the producer to release the film without dubbing and/or recording the voice of the actor Tapas Pal and allow the film to be exhibited on the following conditions: – (i) That the producer shall pay arrear money of Rs. 20,000/- payable by the producer to the actor in terms of the contract through his advocate on record by way of pay order before releasing of the film. (ii) That the producer shall keep in deposit a sum of Rs. 30,000/- in cash in a fixed deposit account or by furnishing a bank guarantee in any nationalized bank before releasing of the film & keep the receipt and/or pass book to the learned Advocate on record of the appellant who is directed to deposit the same before the Registrar, City Civil Court by one week after reopening of the court after Puja this year. The said bank guarantee and/or cash deposit of Rs. 30,000/- would be kept in the custody of the court below until the suit is disposed of. In case any damage is awarded, the same could be enforced against the money kept in deposit in the Bank or against the bank guarantee which may be furnished by the producer before releasing of the said film "Antarer Bhalobasa" under the custody of the court below. (iii) There should be wide publicity and circular before releasing of the said film that in the film the dialogue was not of the actor Tapas Pal. (iv) In the film itself, there will be notice to the audience to the effect that the dialogue in the said film was not the dialogue of the hero Tapas Pal, but the dialogue of some other person whose name should be disclosed and that from time to time in the film it should be exhibited in Bengali that the voice which the audience would be hearing, was not the voice of Tapas Pal. (v) The Eastern India Motion Pictures Association is directed to release the Raw Stock Permit to the appellant forthwith for releasing of the film without prejudice to the rights and contentions of the parties in the pending suit. 21. The appeal is thus disposed of by the above order. We make it clear that we have not adjudicated any of the points on the merit of the case excepting to the extent indicated above and the court below shall proceed and disposed of the suit as expeditiously as possible. 21. The appeal is thus disposed of by the above order. We make it clear that we have not adjudicated any of the points on the merit of the case excepting to the extent indicated above and the court below shall proceed and disposed of the suit as expeditiously as possible. The applicant should file application for converting the said suit for declaration, in a suit for damages as indicated in this judgment immediately and that the suit should be disposed of as expeditiously as possible preferably within a period of six months from today. 22. There will be no order as to costs. 23. Mr. Jiban Ratan Chatterjee, learned Advocate appearing for the respondent actor prays for stay of operation of this order which is refused. 24. The order passed in F.M.A.T. No. 2592 of 1991 will govern the aforesaid two appeals and all the three appeals with applications for stay are disposed of on the above terms. Let a plain copy of the operative portion of the above judgment, counter signed by an Assistant Registrar (Court) be given to the learned Advocates for the parties on the usual undertaking. MENTIONED In terms of our above order a cheque for Rs. 20,000/- drawn by the State Bank of India on Sri Tapas Pal has been presented before us and Mr. S.P. Roychowdhury, learned advocate appearing on behalf of the respondents expresses difficulty for accepting such cheque at this stage inasmuch as, his client has not decided whether he would go by the order or prefer an appeal. Let this cheque and the fixed deposit certificate for a sum of Rs. 30,000/- be kept in the custody of Mr. Chandra Nath Mukherjee, learned advocate appearing on behalf of the appellant is appointed as receiver of this court who will keep the same in his custody until further orders of this court. This shall be in compliance of our order in terms of clause (i) and (ii) of the ordering portion of our judgment. With regard to the certificate in terms of clause (v) of the above judgment Mr. Mr. Jayanta Mitra, learned counsel appearing of behalf of the EIMPA states that he has no instruction at this moment. Accordingly, in order to obtain instruction, let this matter stand adjourned till tomorrow. On the prayer of Mr. With regard to the certificate in terms of clause (v) of the above judgment Mr. Mr. Jayanta Mitra, learned counsel appearing of behalf of the EIMPA states that he has no instruction at this moment. Accordingly, in order to obtain instruction, let this matter stand adjourned till tomorrow. On the prayer of Mr. Roychowdhury, learned advocate appearing for the respondent, let a xerox copy of this order and judgment dated 8.10.1991 be issued to both the parties by tomorrow on usual terms and conditions.