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2012 DIGILAW 305 (CAL)

Angel Digital Private Limited v. S. B. Films

2012-04-12

MURARI PRASAD SHRIVASTAVA, SUBHRO KAMAL MUKHERJEE

body2012
JUDGMENT: This is an appeal against judgment and order dated December 23, 2011 passed by the learned Judge, Ninth Bench, City Civil Court, Calcutta, in Title Suit No. 4574 of 2008. By the order impugned, the learned trial judge dismissed an application for temporary injunction and vacated the ad interim order of injunction granted by order dated November 4, 2008. The plaintiff is the appellant before this Court. The plaintiff instituted Title Suit No. 4574 of 2008, inter alia, for a direction that the plaintiff is the sole, exclusive and absolute owner of the three Bengali films, that is, Rajeshwari(Colour), Nagar Darpane Black and White) and Nishi Trishna(Black and White) and was, therefore, entitled to enjoy the right of exhibition, telecasting, broadcasting, webcasting and/or exploiting the said three films in any format or otherwise according to the choice of the plaintiff. The plaintiff, also, prayed for a decree for declaration that the defendants had no right, title and interest in exhibiting, telecasting, broadcasting, webcasting and/or exploiting the said films in any format. In such a suit, an application for injunction was moved and the learned trial judge, by Order No. 2 dated November 4, 2008, granted an ex-parte ad interim order of injunction restraining the defendants and their men and agents from stalling and/or disturbing the enjoyment of the ownership rights of the said Bengali films. The plaintiff claimed that by three separate agreements dated June 9, 1995, all executed by and between the plaintiff and the defendants, who were the admitted owners of the said films, the defendant transferred their right, title and interest in relation to the said three Bengali films in favour of the plaintiff on consideration. The payments were made by account payee cheques and payments were accepted by the defendants. The defendants, however, by issuing a letter dated August 26, 2008, disputed the claim of the plaintiff. Therefore, the plaintiff was compelled to institute this suit and filed an application for temporary injunction in such suit. The defendants entered appearance in the suit and prayed for vacating the ex parte ad interim order of injunction by filing an application under Order XXXIX, rule 4 of the Code of Civil Procedure. In substance, the defendants claimed that they had never transferred their right in favour of the plaintiff and the documents sought to be relied upon by the plaintiff were forged documents. In substance, the defendants claimed that they had never transferred their right in favour of the plaintiff and the documents sought to be relied upon by the plaintiff were forged documents. It was stated that the person, who had signed the documents on behalf of the defendants, namely, Tarak Nath Roy, was not authorised by the defendants to execute the same on their behalf. The learned trial judge, by the order impugned, rejected the application for temporary injunction and vacated the ex-parte ad interim order of injunction. The learned judge held that the purported agreements were not executed in accordance with law. The learned judge expressed his doubt regarding the status of Tarak Nath Roy, who executed the said agreements. The learned judge noticed that the Tarak Nath Roy was not the partner of the defendants-firm. The learned judge took exception as in the agreement it was indicated that a sum of Rs. 5,000/- (Rupees five thousand) should be paid on signing the agreement, but there was no materials on record to show that such payment was made. In substance, the learned judge was of the view that the agreements sought to be relied upon by the plaintiff had no legal value. We have indicated hereinabove that the plaintiff has preferred this appeal challenging the said order of the learned trial judge. In connection with this appeal, two applications for reception of additional evidence under Order XLI, rule 27 of the Code of Civil Procedure were filed. In the first application under Order XLI, rule 27 of the Code of Civil Procedure, it was stated that all the payments were made by cheques and all those cheques were encashed by the defendants. A certificate issued by the Union Bank of India, Camac Street Branch, is filed along with the said application showing that the cheques issued by the plaintiff in favour of the defendants were presented for clearance and those were encashed. By filing the second application for reception of additional evidence, the plaintiff produced some other agreement dated January 21, 1998 executed by the defendants in favour of one Macksion Electronic’s.On production of the said document, it was sought to be established that said Tarak Nath Roy, also, signed the said document on behalf of the defendants. Mr. By filing the second application for reception of additional evidence, the plaintiff produced some other agreement dated January 21, 1998 executed by the defendants in favour of one Macksion Electronic’s.On production of the said document, it was sought to be established that said Tarak Nath Roy, also, signed the said document on behalf of the defendants. Mr. Saktinath Mukherjee, learned senior advocate appearing in support of this appeal, argues that admittedly Tarak Nath Roy was an employee of the defendants and he had executed earlier agreements on behalf of the said defendants. Mr. Mukherjee, further, submits that, in the facts and circumstances of the case, it can be presumed at least, prima facie, that there was apparent authority in favour of said Tarak Nath Roy to execute those documents. Mr. Mukherjee, also, relies upon the provision of Indian Contract Act, 1872, in particular, Section 186 of the said Act. Mr. Mukherjee submits that when the plaintiff has established, at least prima facie, that said Tarak Nath Roy executed certain documents on behalf of the defendants, the agreements sought to be relied upon by the appellant should not be brushed aside. Mr. Mukherjee submits that the entire payments were made in favour of the defendants by cheques and, therefore, the defendants cannot put any obstruction on the plaintiff from exploiting those films for commercial use. Mr. Dhiraj Trivedi, learned advocate appearing for the respondents, submits that Tarak Nath Roy was an employee of the defendants, but he was removed from service on June 9, 1995. The documents were executed on the said date, that is, on June 9, 1995. Mr. Trivedi, therefore, submits that there was no indication to show that said Tarak Nath Roy had authority to execute the agreements on behalf of the defendants on that date. As the defendants did not enter into any agreement with the plaintiff, the plaintiff cannot exploit the said Bengali films for their benefits. Mr. Trivedi cites the decision in the case of N. Ramaprasad Versus C. N. Kumar reported in AIR 1998 KARNATAKA 313 and submits that the plaintiff-appellant having failed to establish the ingredients of Order LI, rule 27 of the Code of Civil Procedure, they are not entitled to rely upon the aforementioned documents in support of this appeal. Mr. Trivedi cites the decision in the case of N. Ramaprasad Versus C. N. Kumar reported in AIR 1998 KARNATAKA 313 and submits that the plaintiff-appellant having failed to establish the ingredients of Order LI, rule 27 of the Code of Civil Procedure, they are not entitled to rely upon the aforementioned documents in support of this appeal. It is an admitted position that on earlier occasion the said Tarak Nath Roy executed the documents on behalf of the defendant-firm. Therefore, it is apparent that there was some kind of authority granted in favour of Tarak Nath Roy by the defendants. The documents were executed on June 9, 1995. The defendants did not dispute their relationship with Tarak Nath Roy; on the contrary, it was admitted that he was an employee of the defendants. Still, the defendants tried to avoid the documents by alleging that Tarak Nath Roy was removed from service. There was no material on record to show that Tarak Nath Roy was ever removed from service by the defendants. The Constitution Bench of Supreme Court of India in the case of K. Venkataramiah Versus Seetharama Reddy and others reported in AIR 1963 Supreme Court 1526 laid down as to when the provisions of Order XLI, rule 27 of the Code of Civil Procedure could be resorted to by the appellate court. It was observed that under Order XLI, rule 27(1) of the Code of Civil Procedure the appellate court had the power to allow additional evidence not only if it required such evidence “to enable it to pronounce judgment”, but, also, for “any other substantial cause”. There might well be cases where even though the court found that it was able to pronounce judgment on the state of record as it was, and so it could not strictly say that it required additional evidence to enable it to pronounce judgment, the court still considered that in the interest of justice something, which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. Such a case would be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of the Code of Civil Procedure. It is stated that all the payments were made by cheques and cheques were presented for clearance by the defendants. Admittedly the cheques were, also, encashed by the defendants. Such a case would be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of the Code of Civil Procedure. It is stated that all the payments were made by cheques and cheques were presented for clearance by the defendants. Admittedly the cheques were, also, encashed by the defendants. In spite of the aforesaid position, when the plaintiff went to exhibit the films commercially, which they had purchased from the defendants upon consideration, the defendants are trying to stall the plaintiff from exhibiting the same. Whether Tarak Nath Roy had an authority or not it is an issue in the suit, but it is apparent that Tarak Nath Roy, also, executed other documents on behalf of the defendants. Therefore, apparently it appears that Tarak Nath Roy had some connection with the defendants and he had authority to execute the documents. We, therefore, set aside the order impugned and restrain the defendants from preventing the plaintiff-appellant from utilising the said three films commercially during the pendency of the suit. However, the plaintiff is directed to maintain accounts of such exploitation and all actions taken, during the pendency of the suit, shall abide by the result of the suit. We make it clear that we have not decided any issue involved in the suit and all issues are kept open. The issues are to be decided by the learned trial judge in accordance with law. All our observations are limited for the purpose of disposal of the application for temporary injunction. The appeal is, thus, allowed. We make no order as to costs. The office is directed to supply xerox photostat copy of this order to the applicant, if applied for, on urgent basis. Murari Prasad Shrivastava, J. I agree.