JUDGMENT : 1. The Court : The application, being GA No.3346 of 2017 has been filed at the instance of the respondent no.1 in an application under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred as “the Act of 1996”) for recalling/vacating of the order dated October 17, 2017 passed by a learned Single Judge of this Court. The respondent no.1 has also prayed for stay of all further proceedings in A.P. No.890 of 2017. 2. However, the petitioner in the application under Section 9 of the Act of 1996 has prayed for extension of the interim order dated October 17, 2017. 3. The brief facts giving rise to the filing of these applications are that the respondent no.1 in the application, A.P. No.890 of 2017 is the producer of the Hindi feature film named “SIMRAN” (hereinafter referred as “the said film”). On October 25, 2016 an agreement was entered into between the petitioner and the respondent nos.1 to 4, in terms whereof the petitioner granted the financial assistance of Rs.6,50,00,000/- (Rupees Six Crores Fifty Lakhs only) as a loan to the respondent no.1 for production of the said film. The said agreement further provided for the right of the petitioner to receive Rs.80,00,000/- (Rupees Eighty Lakhs only ) as minimum guarantee return from the respondent no.1. 4. As per Clauses 5.6.1 and 5.6.2 of the said agreement dated October 25, 2017, the respondent no.1 was to repay Rs. 5 crores, together with the minimum guarantee return of Rs.80 lacs to the petitioner, seven days before the theatrical release of the film or latest by August 31, 2017, whichever is earlier. The balance amount of Rs.1.50 crores was repayable latest by 45 days from the theatrical release of the said film or latest by October 15, 2015, whichever is earlier. There is no dispute that the respondent no.1 received the entire financial assistance amount of Rs.6.50 crores from the petitioner within the time stipulated in the said agreement dated October 25, 2016. Clause 11 of the said agreement provided that in the event of any default on the part of the respondent no. 1 to repay the financial assistance amount of Rs. Clause 11 of the said agreement provided that in the event of any default on the part of the respondent no. 1 to repay the financial assistance amount of Rs. 6.50 crores along with the minimum guarantee amount of Rs.80 lacs to the petitioner, the latter would get full lien on the entire overflow of the film, as well as on the immediate next film of the respondent and its associate till the full recovery of the repayment amount. Clause 20 of the said agreement contains the arbitration agreement that all disputes between the parties arising out of or relating to the said agreement to be adjudicated through arbitration under the Act of 1996 or 5. It is also to be noted that as per Clause 25 of the said agreement no change or modification of the agreement shall be valid, unless the same is in writing and signed by all the parties. 6. On June 16, 2017 the petitioner and the respondent nos.1 to 4 executed an addendum agreement, in terms whereof the petitioner provided a further financial assistance of Rs.1 crore to the respondent no.1. As per Clause 4 of the said addendum agreement dated June 17, 2016 the respondent no.1 agreed to repay the said additional financial assistance of Rs.1 crore to the petitioner within thirty days after the release of the film or latest by September 30, 2017, whichever is earlier. The addendum agreement dated June 16, 2017 expressly provided that the repayment schedule of the primary financial assistance of Rs.6.50 crores and the minimum guarantee amount of Rs.80 lacs shall remain same and intact as per the agreement dated October 25, 2016 and will not be affected by the payment schedule of the additional financial assistance of Rs.1 crore. On September 14, 2017 a further addendum agreement was entered into between the petitioner and the respondent nos.1 to 4. In the recital of the said addendum agreement dated September 14, 2017 it was recorded that the respondent no.1 as the producer had made defaults for repayment of the financial assistance provided by the petitioner in terms of the said agreement dated October 25, 2016. As per the said addendum agreement dated September 14, 2017, the same was in addition to the original agreement dated October 25, 2016 between the parties, as well as the said addendum agreement dated June 16, 2017. As per the said addendum agreement dated September 14, 2017, the same was in addition to the original agreement dated October 25, 2016 between the parties, as well as the said addendum agreement dated June 16, 2017. The parties had entered into the said agreement for modification of only certain terms of the original agreement dated October 25, 2016. As per clause 1.1 of the said addendum agreement dated September 14, 2017 out of the total dues, on account of financial assistance and the minimum guarantee, the respondent no. 1 agreed to pay Rs. 2.50 crores to the petitioner by four installments. The respondent had already paid Rs. 1 crore to the petitioner on September 8, 2017 and the balance amount of Rs. 1.50 crores was payable by three installments of Rs. 50,00,000/- each, in between September 15, 2017 and September 25, 2017. 7. Clause 1.1 of the said addendum agreement further recorded that the balance amount of Rs. 3.30 crores would be paid by the respondent to the petitioner as mutually agreed and, more particularly, mentioned in the said agreement. 8. Further, clause 1.3 of the said addendum agreement provided for opening of an escrow account by the respondent no.1 and the confirming parties, namely, respondent nos. 2,3 and 4, as well as respondent no. 5 in this application for deposit of all revenue receipts on account of the theatrical, satellite and digital release of the said film. 9. On October 12, 2017 the petitioner filed the application, A.P. No. 890 of 2017, under Section 9 of the Arbitration and Conciliation Act, 1996 (in short “the Act of 1996”) against the respondents praying for the following relief: “(a) An order of interim injunction restraining the respondent nos. 1 and 5 from releasing and/or broadcasting the film “SIMRAN” on any other platform including satellite, internet and digital telecast (b) The respondent no. 1 be directed to make payment of a sum of Rs. 7,15,57,500/- as per the particulars as stated in paragraph 15 hereinabove; (c) Receiver be appointed to take possession of the Master Copy of the film “SIMRAN” and to take all effective steps for the purpose of stopping displaying the film “SIMRAN” in all theatres until the said payment of Rs. 7,15,57,500/- as per the particulars as stated in paragraph 15 hereinabove; (c) Receiver be appointed to take possession of the Master Copy of the film “SIMRAN” and to take all effective steps for the purpose of stopping displaying the film “SIMRAN” in all theatres until the said payment of Rs. 7,15,57,500/- is made to the petitioner; (d) An order be passed directing the respondent No. 1 to immediately open the escrow account in terms of the addendum agreement dated 14th September, 2017 and deposit all amounts in terms thereof; (e) Ad-interim order in terms of prayers above and (f)………………….” 10. On October 17, 2017 the said application was taken up for hearing by a learned Single Judge in the Vacation Bench. Before the application was taken up for hearing the petitioner had forwarded a copy of the application to the respondent o. 1 which was received by the latter on October 16, 2017. On October 17, 2017 the learned Advocate representing the respondent no. 1 appeared before the Court and he prayed for an accommodation to receive complete instruction in the matter. However, by an order dated October 17, 2017 the learned Single Judge directed the respondent no. 1 to forthwith take steps to open an escrow account in terms of the addendum agreement dated September 14, 2017 and to deposit at least 50% of the amount claimed in terms of prayer (b) of the application before the next date of hearing of the application. By the said order, it was also recorded that before the Regular Bench the petitioner shall be entitled to pray for an injunction in terms of prayer (a) of the application. As mentioned earlier, it is the respondent no. 1 who has filed the application, G.A. No. 3346 of 2017 for vacating of the said order dated October 17, 2017. The petitioner, however, has opposed the prayers of the respondent no. 1 in the said G.A. No.3346 of 2017. 11. Since the petitioner did not intend to file any affidavit-in-opposition to the vacating application filed by the respondent no. 1, the application, G.A. No. 1346 of 2017 is taken up for hearing without any pleading from the side of the respondent no. 1. The respondent no.5 is supporting the prayer of the respondent no.1 in G.A. No.1346 of 2017 and none appeared for the respondent nos.1 to 4. 12. The grounds urged by Mr. 1, the application, G.A. No. 1346 of 2017 is taken up for hearing without any pleading from the side of the respondent no. 1. The respondent no.5 is supporting the prayer of the respondent no.1 in G.A. No.1346 of 2017 and none appeared for the respondent nos.1 to 4. 12. The grounds urged by Mr. Chakraborty, led by Mr. Tilak Bose, learned Counsel for the respondent no. 1 in support of its application, G.A. No. 3346 of 2017 are that the respondent no. 5 is not a party, either to the said agreement dated October 25, 2016 or any of the aforementioned addendum agreements. It was contended that the petitioner had entered into the said agreement dated October 25, 2016 with the full notice and knowledge that by an agreement dated July 6, 2016, the respondent no.1 had assigned all its exploitation rights in respect of the said film in favour of the respondent no. 5 and all amounts receivable on account of theatrical and digital telecast of the said film are to be received by the respondent no. 5. It was further submitted that the said film has already been handed over to the respondent no. 5 for theatrical release. Since the respondent no. 5 is not a party to any of the said agreements dated October 25, 2016, June 16, 2017 and September 14, 2017, the petitioner could not either implead the said respondent in the application under Section 9 of the Act of 1996 nor could it obtain any order which might affect the exclusive exploitation right of the said respondent in respect of the said film. According to Mr. Chakraborty, on this ground alone, the application filed by the petitioner under Section 9 of the Act of 1996 should be rejected and the interim order dated October 17, 2017 should be vacated. He, further, contended that in any event from a bare reading of the addendum agreements dated June 16, 2017 and September 14, 2017 it is evident that the terms of the agreement dated October 25, 2016 underwent various modifications and, as such, the petitioner cannot insist for repayment of the said sum of Rs. 7.30 crores on account of financial assistance and the minimum guaranteed amount in terms of clauses 5.6.1 and 5.6.2 of the said agreement dated October 25, 2016. 7.30 crores on account of financial assistance and the minimum guaranteed amount in terms of clauses 5.6.1 and 5.6.2 of the said agreement dated October 25, 2016. It was strongly argued that the petitioner is fully aware that the said film has met with a complete commercial failure and there is no earning from the telecast of the said film and, as such, the petitioner cannot insist for repayment of the said sum of Rs. 7.30 crores as claimed in the application under Section 9 of the Act of 1996. In any event, under the aforementioned agreements between the parties in case of any default on the part of the respondent no. 1 to repay the financial assistance amount or the minimum guaranteed amount, the remedy of the petitioner lies to exercise its lien over the said film as well as the next film which may be produced by the respondent no. 1, as per clause 11.1 of the agreement dated October 25, 2016. Lastly, it was submitted that in the application, the petitioner has not made any averment as per Order 38 Rule 5 of the Code of Civil Procedure. On these grounds, the respondent no. 1 strongly contended that this Court should allow its application being G.A. No.3346 of 2017 and rejected the application filed by the petitioner under Section 9 of the Act of 1996. 13. Mr. Pratap Chatterjee, learned Senior Counsel appearing for the petitioner at the very outset submitted that it is a fact that the respondent no. 5 is not a party either to any of the agreement dated October 25, 2016, or any of the addendum agreements dated June 16, 2017 and September 14, 2017 and, as such, the petitioner shall not press for any order which may affect the right of the respondent no. 5. He prayed for deletion of the name of the respondent no. 5 from the array of the respondents in the application A.P. No.890 of 2017. Mr. Chatterjee did not dispute that since the respondent no.5 is not a party to any of the aforementioned agreements between the petitioner and the respondent nos.1 to 4, the petitioner cannot press for any order in terms of prayers (a), (c) and (d) of A.P. No.890 of 2017. 14. Mr. Chatterjee did not dispute that since the respondent no.5 is not a party to any of the aforementioned agreements between the petitioner and the respondent nos.1 to 4, the petitioner cannot press for any order in terms of prayers (a), (c) and (d) of A.P. No.890 of 2017. 14. In view of the above submission made on behalf of the petitioner, before further proceeding with the matter, the name of the respondent no. 5 is deleted from the array of the respondents in A.P. No. 890 of 2017. The Department is directed to delete the name of the respondent no. 5 from the cuase title of A.P. No. 890 of 2017. 15. It was argued for the petitioner that from the documents disclosed in the application under Section 9 of the Act of 1996, as well in those G.A. No. 3346 of 2017 it is clear that the respondent no. 1 has not disputed its failure to repay the financial assistance amount, together with the minimum guarantee amount as claimed by the petitioner and that it has committed breach of the said agreements dated October 25, 2016 and the addendum agreements dated June 16, 2017 and September 14, 2017. Mr. Chatterjee strongly contended that from a careful reading of the said addendum agreements dated June 16, 2017 and September 14, 2017 it is clear that the obligations of the respondent no. 1 to repay the financial assistance amount of Rs. 6.50 crores and the minimum guaranteed amount of Rs. 80 lakhs is not dependent upon revenue to be generted by release of the said film. According to him, the financial assistance amount was paid by the petitioner to the respondent no. 1 and the obligation of the respondent no. 1 to pay the minimum guaranteed amount of Rs. 80 lakhs to the petitioner had taken place before the release of the said film on September 15, 2017 and none of the said obligations had any connection with the income to be generated from the release of the film. 16. Relying on clause 1.1 of the addendum agreement dated September 14, 2017, Mr. Chatterjee argued that even as per the said clause the respondent no.1 had to pay Rs.2.50 crores before September 16, 2017 and admittedly after paying Rs.1 crore, the respondent no.1 has defaulted in payment of Rs.1.5 crores. 16. Relying on clause 1.1 of the addendum agreement dated September 14, 2017, Mr. Chatterjee argued that even as per the said clause the respondent no.1 had to pay Rs.2.50 crores before September 16, 2017 and admittedly after paying Rs.1 crore, the respondent no.1 has defaulted in payment of Rs.1.5 crores. He contended that from the submissions made on behalf of the respondent no.1, it is evident that it has no intention to do repay the outstanding financial assistance amount and the minimum guaranteed amount to the petitioner. He further submitted that various cheques amounting to more than Rs.8 crores issued by the respondent no.1 in favour of the petitioner were dishonoured on presentation to the bank for encashment. Urging these facts, Mr. Chatterjee strongly contended that this Court should pass an order directing the respondent no.1 to secure the entire amount mentioned in paragraph 15 of this application under section 9 of the Act of 1996. 17. In his reply, the learned advocate appearing for the respondent no. 1 could not dispute the dishonour of 8 cheques as mentioned by the petitioner. 18. I have considered the materials on record as well as the argument advanced by learned counsel appearing for the petitioner and the respondent no.1 respectively. There is no dispute that in terms of the agreement dated October 16, 2015 the respondent no.1 received the financial assistance of Rs.6.50 crores from the petitioner. In addition to the said sum of Rs.6.50 crores, in terms of the addendum agreement dated June 16, 2017 the respondent no.1 obtained a further financial assistance of Rs.1 crore from the petitioner. In the addendum agreement dated September 14, 2017, it is mentioned that the respondent no.1 has defaulted in repaying the financial assistance it had obtained from the petitioner and the minimum guarantee amount. Even as per clause 1.1 of the addendum agreement dated September 14, 2017, the respondent no.1 was liable to repay Rs.2.50 crores within September 25, 2017. However, after paying of Rs.1 crore, the respondent has defaulted to pay the remaining amount of Rs.1.50 crore to the petitioner. It is also not in dispute that as many as five cheques for Rs.8.30 crores made over by the respondent no.1 to the petitioner have been dishonoured on presentation. However, after paying of Rs.1 crore, the respondent has defaulted to pay the remaining amount of Rs.1.50 crore to the petitioner. It is also not in dispute that as many as five cheques for Rs.8.30 crores made over by the respondent no.1 to the petitioner have been dishonoured on presentation. From the submissions made on behalf of the respondent no.1 as recorded above, it is evident that in utter desperation to avoid its obligation to repay its dues to the petitioner the respondent no.1 is now harping on the alleged commercial failure of the said film. 19. It is a fact that in the application under section 9 of the Act of 1996 the disputes have arisen between the parties out of the said original agreement dated October 25, 2016 and the said addendum agreements, this court cannot direct the respondent no.1 to open the escrow account which is to be operated by persons, who are not parties to the arbitration agreement. However, the fact remains that the respondent no.1 is unable to repay at least Rs.1.50 crores to the petitioner in discharge of his obligation even under clause 1.1 of the addendum agreement dated September 14, 2017. 20. In the present case, the respondent no.1 has not alleged that this Court does not have the jurisdiction to entertain the application under section 9 of the Act of 1996. 21. For all the foregoing reasons, I do not find any reason to accept the contentions raised by the respondent no. 1 or to entertain the prayers made for rejection of the application of the petitioner under section 9 of the Act of 1996. However, the order dated October 17, 2017, passed in A.P. No. 890 of 2015, in so far as the same directed the respondent no.1 to open an escrow account and deposit at least 50% of the amount claimed in terms of prayer (b) of the application is vacated. 22. The respondent no.1, in A.P. No. 890 of 2015 is directed to deposit Rs.1,50,00,000/- (Rupees One Crore and Fifty Lacs only) in cash with the Registrar, Original Side of this court, within November 27, 2017, upon notice to the petitioner. The learned Registrar, Original Side shall keep the said amount invested in a short term fixed deposit to be maintained with a nationalised bank. The learned Registrar, Original Side shall keep the said amount invested in a short term fixed deposit to be maintained with a nationalised bank. The said short term fixed deposit shall be kept renewed from time to time, until further order. With the above directions, GA no.3346 of 2017 stands disposed of. 23. As prayed for by Mr. Chakraborty, let the respondent no.1 file its affidavit in opposition to the application, being A.P. No. 890 of 2017 within two weeks from date; reply, if any, thereto be filed within two weeks thereafter. 24. The petitioner may pray for further relief at the final hearing of the application A.P. No. 890 of 2017. 25. Let the application, A.P. No.890 of 2017 appear under the heading “Adjourned Motion” in the monthly list of December, 2017 after six weeks. 26. At this juncture, Mr. Chakraborty appearing for the petitioner prays for stay of operation of this order. Such prayer is considered and rejected. 27. Urgent certified website copies of this order, if applied for, be supplied to the petitioner upon compliance with all requisite formalities. The parties, the learned Registrar, Original Side and the concerned Bank shall act on a copy of certified website copy of this order.