Nawal Kishore Tharad v. Meera Dutta — 1998 DIGILAW 329 (CAL)

JUDGMENT S.B. Sinha, J.: These two appeals involving common questions of fact and law were, with the consent of the parties, taken up for hearing together and are being disposed of this common judgment. FMAT No. 1041/98 arises out of an order dated 4.2.98 filed by the appellant herein against the respondent in T.S. No. 192 of 1997. FMAT No. 1040/98 arises out of an order of the same date passed by the learned trial Judge in Title Suit No. 16/97 which was filed by the respondent herein. The appellant herein admittedly advanced loan in favour of the respondent. The transactions between the parties admittedly had started in the year 1982. According to the appellant, two agreements dated 22.5.82 were entered into by and between the parties viz, (a) an agreement for sale with respect to “Usha Cinema” between Smt. Meera Dutta, Nawal Kisore Tharad, Nishi Kanta Manna and Kashi Nath Dutta; (b) agreements for film booking agency relating to the said cinema entered into between Smt. Meera Dutta and Kashi Nath Dutta. Allegedly Meera Dutta in whose name the aforementioned cinema hall stands issued a letter on 29.5.82 to Eastern India Motion Pictures Association for publication in bulletin relating to appointment of Nawal Kishore. Tharad as sole and exclusive booking agent of the said cinema; pursuant whereto the said letter was published on 12.11.82. The respondent herein although admits execution of agreement for film booking agency but categorically denies and disputes the agreement for sale with respect to Usha Cinema. The purpose for entering into the said agreement for sale is said to be : (a) The owner was incurring heavy loss. (b) The owner agreed to sell the property at Rs. 18 lakhs; (c) The owner agreed to have Rs. 40,000/- for the present and the balance consideration money was agreed to be paid part by part to meet the demand of her creditors. (d) The conveyance was to be executed after the conclusion of the litigation then pending with her creditor Bhagyalaxmi Exhibitors Private Ltd.; (e) If the interim payments exceeded Rs. 40,000/- for the present and the balance consideration money was agreed to be paid part by part to meet the demand of her creditors. (d) The conveyance was to be executed after the conclusion of the litigation then pending with her creditor Bhagyalaxmi Exhibitors Private Ltd.; (e) If the interim payments exceeded Rs. 16 lakhs then the owner was bound to hand over the management and Box Office collection to the prospective purchasers; (f) The prospective purchasers after meeting the expenses were authorised to appropriate the residue towards the interim interest at the rate of 24% per annum for the sum advanced; (g) The owner was required to appoint prospective purchasers as the exclusive booking agents at a commission of 5% of the nett Box Office collection. The important features of the agreement for booking agency dated 22.5.82 are as follows : (i) The plaintiff shall pay Rs. 40,000/- to the defendant No.1 out of which Rs. 15,000/- on the date of signing the agreement and the balance in two subsequent instalments. (ii) The defendant shall pay interest at 18% per annum-payable quarterly. (iii) The advance to be repaid and refunded in regular weekly instalments of Rs. 150/- per week. (iv) The agreement was for 6 years (at the rate of Rs 150/- per week = Rs. 600/- per month X 12 = Rs. 7,200/- p.a. X 6 years = Rs. 43,200/- in 6 years. (v) If not paid in full the agreement shall continue automatically. (vi) 5% commission was to be paid on nett Box Office collection. (Vii) The entire nett collection to be deposited in the Bank account of the plaintiff the condition being irrevocable. 5. It has admitted that on 10.3.86 the agreement for modification of booking agency was executed providing for : - (a) The plaintiff shall make a further advance of Rs. 1,30,000/- for renovation. (b) Interest @ 18% p.a. payable within 7th of every next month. (c) To be repaid and refunded by weekly instalment of Rs. 2,500/-. (d) Until full and final refund the plaintiff No.1 shall continue to be the sole and exclusive booking agent. (e) In the event of default the plaintiff no.1 shall take charge of the Box Office collection. 6. It is contended by the respondent that on 10.2.92 a signed settlement of dues upto February, 1992 at. Rs. 90,000/- against screening of picture, commission, interest etc. was purported. (e) In the event of default the plaintiff no.1 shall take charge of the Box Office collection. 6. It is contended by the respondent that on 10.2.92 a signed settlement of dues upto February, 1992 at. Rs. 90,000/- against screening of picture, commission, interest etc. was purported. It is the case of the respondent that her son fell seriously ill and being in financial and mental distress she had to approach the appellant for advancing a loan of Rs. 1,65,000/- which was in addition to the said sum of Rs. 40,000/-. On 1.8.94 a letter of authority was issued by Smt. Meern Dutta in favour of the appellant to collect the Box Office collection of Usha Cinema and to manage the business of the said Cinema house. On 28.8.94 a statement of accounts was prepared. On 29.1.97 the booking agency agreement was revoked by the respondent which was questioned by the appellant herein by a letter addressed to the Eastern India Motion on 4.3.97. On 18.3.97 the Appellant herein filed a suit in the Original Side of this Court claiming, inter alia, the following reliefs : "(i) For specific performance of the agreement for sale dated May 22, 1982; (ii) For declaration that the cancellation and/or revocation of the Booking Agency agreement dated 22.5.82 as modified by the agreement dated 10.3.86 is wrongful, illegal, invalid of no effect and not binding upon the plaintiff/appellants; (iii) Declaration that the plaintiffs/appellants are entitled to continue in the management of the said Cinema House and collect the Box Office collection thereof in terms of the said agreement for sale dated 22.5.82: (Page 120) and the said letter of authority dated 1st August, 1994; (iv) Prohibitory injunction do issue restraining the defendants and each one of them, their servants, agents and/or assigns from interfering with the management of the said Cinema House by the plaintiffs/appellants and collecting the Box Office collections of the said business by or on behalf of the plaintiffs/appellants." In the said suit certain interim orders were passed and ultimately by an order dated 18.6.97, the plaint was directed to be returned on the ground of lack of territorial jurisdiction. On 19.7.97, the plaint was presented before the First District Judge, Chinsurah, Hooghly, which was registered in Title Suit No. 192/98 wherein an application of injunction was filed. 8. On 19.7.97, the plaint was presented before the First District Judge, Chinsurah, Hooghly, which was registered in Title Suit No. 192/98 wherein an application of injunction was filed. 8. The respondents herein had also filed a suit for accounts admitting therein to have received a sum of Rs. 2,05,000/- from the appellant. In the said suit, however, it was contended that the said amount was advanced to the plaintiff as loan in substance. 9. The Appellant has contended that he has paid a sum of Rs. 17,00,000/- and odd to the respondents whereas the respondent as indicated hereinbefore, admitted receipt of a sum of Rs. 2,05,000/- only. The respondents, however, contend that the appellant’ herein had failed to account for the collections made by him during the period 1986 onwards when he was in-charge of the affairs of the Cinema business of the said Usha Cinema. 11. Both the parties have filed injunction petitions in their respective Suits. By reason of separate orders passed on the same day, the learned trial Judge directed maintenance of status quo inter alia, on the ground that admittedly the Respondent No.1 is in possession of the premises in question. It stands admitted that the respondents have taken forcible possession of the Cinema hall from the appellant. 11. Mr. S.P. Roy Chowdhury, the learned Senior Counsel appearing on behalf of the appellant, inter alia, submitted that in the facts and circumstances of this case, a Receiver should be appointed so that interest of both the parties may be protected. 12. Mr. Shakti Nath Mukherjee, the learned Senior Counsel appearing on behalf of the respondents, however, submitted that whereas his clients, have made a clean breast of the entire state of affairs, even by admitting that a sum of Rs. 2,05,000/- was paid by the appellant to his clients, the appellant had withheld the accounts and is now falsely claiming of making a payment of more than Rs. 17 lakhs. The learned Counsel contends that the appellant was a trustee in respect of the said cinema hall and, thus, he was under an obligation to submit accounts to the plaintiffs through the respondents. It was submitted that the so-called agreement for sale dated 22.5.92 is a manufactured document which had been prepared on the basis of the duplicate copy of the agreement of the film booking agency. It was submitted that the so-called agreement for sale dated 22.5.92 is a manufactured document which had been prepared on the basis of the duplicate copy of the agreement of the film booking agency. The learned Counsel contends that the appellant has taken undue advantage of the financial and mental distress of the plaintiffs at a point of time when her son was critically ill and was admitted in a Nursing Home. 13. From the backdrop of events as noticed hereinbefore, we are of the opinion that as grave allegations and counter-allegations have been made by the parties, the same required to be thoroughly investigated into and adjudicated upon by the learned trial Judge in the suit and, thus, the interest of the parties would be sub-served if a Receiver is appointed for running the business in respect of the said Usha Cinema. 14. There cannot be any dispute that the court while hearing out injunction applications, can mould the relief by appointing a Receiver so that the disputed property may be in custodian legis. 15. In the instant case, the question as to whether the agreement for sale was a manufactured document or not shall fall for consideration before the learned trial Judge. The learned trial Judge at the hearing of the suit is required to take into consideration, and adjudicate intricate issues involved in both suits filed by the parties hereto. 16. At this stage, it is not possible for this Court to arrive at a positive finding one way or the other so as to enable it to pronounce finally as to who is more sinned against than sinning. 17. Furthermore, the fact that the respondents have forcibly taken possession of the cinema hall from the Appellant stands admitted and in that view of the matter, there is no option for this court but to hold that the respondents had taken law in their own hands. The plaintiffs/respondents have thus, made out a strong prima facie case. A prima facie case has also been made out by the respondents herein in their suit. 18. In this view of the matter, we, while setting aside the orders passed by the learned trial judge direct that the Respondent No.1 herself (who admittedly in possession of the cinema house) be appointed as a Receiver as it is just and convenient to do so. 19. 18. In this view of the matter, we, while setting aside the orders passed by the learned trial judge direct that the Respondent No.1 herself (who admittedly in possession of the cinema house) be appointed as a Receiver as it is just and convenient to do so. 19. This order is being passed keeping in view the fact that although the Respondent No.1 shall not be dispossessed from her possession and would be free to run the business in respect of the said cinema hall, she would remain accountable to the Court. When a Receiver is appointed, the Court would be entitled to issue necessary directions and further examine the accounts submitted by the Receiver before it and while ultimately disposing of the suit, it would be easier for the court to mould the relief’s, if found necessary. 20. For the reasons aforementioned, the impugned orders are set aside and the appeals are disposed of with a direction that the respondent no.1 be hereby appointed as a Receiver in respect of the aforementioned Usha Cinema at Tarakeshwar in the District of Hooghly. The Receiver need not furnish any security but shall file accounts once in every fortnight. The parties shall also be at liberty to mention before the Ld. trial Judge for further direction or directions if any occasion arises therefor. 21. However, keeping in view the facts and circumstances of this case, the learned trial Judge shall also consider the desirability of disposing the suits at an early date and preferably within a period of six months from the date of communication of this order. Both the suits may be heard analogously. In the facts and circumstances of this case, the parties shall pay and bear their own costs of these appeals. D.B. Dutta, J.: I agree. Appeals disposed of with directions.