JUDGMENT (Prayer: First Appeal has been filed under Section Order 41 Rule 1 of Civil Procedure Code) against the judgment and decree dated 30.11.2015, made in O.S.No. 11300 of 2010, on the file of the V Additional Judge, City Civil Court, Chennai.) Aggrieved over the judgment and decree dated 30.11.2015 passed in O.S.No. 11300 of 2010, on the file of the V Additional Judge, City Civil Court, Chennai, the appellants have preferred the first appeal. 2. This suit has been filed by the Plaintiff/respondent to direct the defendants/appellants to pay to the plaintiff/respondent a sum of Rs. 17,90,000/- together with interest at 36% per annum prevailing in the cine trade and as per the agreement on Rs.5,00,000/- from this date till the date of realization and to pay the costs of the suit. Brief averments of the plaint: 3. On 21.09.1996 the plaintiff/respondent had advanced Rs.5,00,000/- to the defendants/appellants under a finance agreement dated 21.09.1996. The loan amount was given for production expenses of a Tamil Movie namely “Manasu” to the defendants/appellants. As per the terms and conditions of the said agreement the defendants/appellants have created first charge in respect of the territorial rights of Trichy, Tanjore, Pudukottai Nagar, Nagai-Quaid-e-Millath Districts, Tirunelveli, Salem, Dharmapuri, North Arcot and Tiruvannamalai District. The defendants have agreed to repay the said sum with interest at the rate of 36% per annum. It was also agreed that the charged areas shall not be disposed of to anyone without the prior written sanction or written consent of the plaintiff/respondent. It was also agreed that the picture will not be released anywhere in charged areas without settling the dues to the plaintiff/respondent. The charge over the said territories in respect of distribution, exhibition and exploitation rights of the said picture was also confirmed by Gemini Colour Laboratory, Chennai where negatives of the picture was processed until the producers produce a clearance letter from the plaintiff/respondent. The picture could not be released for a quite long time and finally as per the orders passed by the Hon’ble High Court in O.S.A.Nos. 47 of 2000 and 48 of 2000 in C.S.No 986 of 1998 an Advocate Commissioner was appointed to release the picture. The Advocate Commissioner had released the picture and deposited Rs.10,00,000/- (Rupees Ten Lakhs only) in Saligramam Branch, of Indian Bank by the Court. 47 of 2000 and 48 of 2000 in C.S.No 986 of 1998 an Advocate Commissioner was appointed to release the picture. The Advocate Commissioner had released the picture and deposited Rs.10,00,000/- (Rupees Ten Lakhs only) in Saligramam Branch, of Indian Bank by the Court. Subsequently, the plaintiff/respondent himself impleaded as one of the defendant in C.S.No.986 of 1998. The picture was released on 15.12.2000 by the Advocate Commissioner and the charges became futile, however the charges in the deposit made in the bank by the Advocate Commissioner still exists. The security created in favour of the plaintiff/respondent by the defendant is in force and the picture was released only on 15.12.2000 and the suit is filed in time. Thus, along with the interest calculated the defendants/appellants are liable to pay Rs.17,90,000/- to the plaintiff. The plaintiff/respondent has issued a legal notice on 19.06.2002 to the defendants/appellants. Though the defendants/appellants have received the notice, they have failed to send any reply. Hence the suit is necessitated. Brief averments of written statement filed by the 2nd defendant/appellant and adopted by the 1st and 3rd defendants/appellants:- 4. The suit is not maintainable either in law or on facts. The defendants/appellants deny all the allegations stated in the plaint except those that are specifically admitted. The suit is barred by limitation. As per finance agreement the defendants/appellants were to pay the entire principal amount along with the interest within the expiry of two months from the date of agreement or on or before the first and general release of the picture whichever is earlier. Thus, the cause of action for the recovery of the amount arose on 21.11.1996. Accordingly, the limitation period expired on 20.11.1999. The suit has been filed only in December 2003. Hence the suit is barred by limitation. It is true that under the agreement dated 21.9.1996 the plaintiff/respondent has got rights to sell the movie through public auction or private agreement if the defendant had committed default in repayment of the amount borrowed under the agreement. But the plaintiff/respondent did not ask to implement such rights. In the year 1998 the 3rd defendant had filed C.S.No.986/1998 before the Hon’ble High Court against the Gemini Color Laboratory for the release of the pirated print of the movie which were available in the market even before the release of the sale. But the plaintiff/respondent did not ask to implement such rights. In the year 1998 the 3rd defendant had filed C.S.No.986/1998 before the Hon’ble High Court against the Gemini Color Laboratory for the release of the pirated print of the movie which were available in the market even before the release of the sale. The plaintiff/respondent impleaded himself in that proceedings before the Hon’ble High Court, an Advocate Commissioner was appointed and the movie was released through him in all the areas except those belonging to the plaintiff/respondent inspite of several request made by the Advocate Commissioner to the plaintiff/respondent simultaneously release the movie. Therefore, the plaintiff/respondent has lost all his rights under the finance agreement to recover the amount. The plaintiff/respondent was alone interested to release the movie in the area mentioned in the agreement and as the film was due for release the plaintiff/respondent had volunteered to finance the completion of the movie. The money given under the finance agreement was used for post production expenses. Therefore, it is not correct that the defendant has approached the plaintiff/respondent for finance for the movie since he is not a Financier but a Distributor. The Advocate Commissioner appointed by the Hon’ble High Court had not released the movie in the areas fledged to the plaintiff/respondent alone. Though the movie was released by the Advocate Commissioner, the plaintiff/respondent chose not to release the movie in the areas to be distributed by them. The Advocate Commissioner had given specific instructions to the plaintiff/respondent regarding the release of the movie in territories specified in the agreement. But the plaintiff/respondent himself chose to release the film. Therefore if the security given in favour of the plaintiff/respondent has become futile and the plaintiff/respondent is completely responsible for the same. The alleged security at this juncture is only to escape from bar of limitation. There has been no correspondence either in oral or in writing demanding the return of money advanced in the agreement. The plaintiff/respondent cannot expect the settlement of time for debt. It is the defendant who should claim damages for stalling the release of movie in territories alloted to the plaintiff/respondent. The plaintiff/respondent having deliberately missed the chance to recover the amount either by releasing the movie in the territories alloted to him by public auction or private agreement cannot be make the time for debt. It is the defendant who should claim damages for stalling the release of movie in territories alloted to the plaintiff/respondent. The plaintiff/respondent having deliberately missed the chance to recover the amount either by releasing the movie in the territories alloted to him by public auction or private agreement cannot be make the time for debt. There is no cause of action for the suit. There is no merit in the suit and the same has to be dismissed. 5. The following issues were framed for trial by the trial court on 07.07.2011 1) Whether the plaintiff/respondent had advanced a sum of Rs. 5,00,000/- to the defendants under a Finance Agreement dated 21.09.1996 for the production expenses of their Tamil Talkie picture titled “Manasu”? 2) Whether the terms and conditions of the agreement dated 21.09.1996 the defendant has created the charge in respect of the territorial rights for certain Districts? 3) Whether the defendant had agreed to repay the said sum of Rs.5,00,000/- with interest at the rate of 36% prevailing in the Cine Trade? 4) Whether the Tamil Talkie picture namely “Manasu” has been released by the Advocate Commissioner based upon the order of the Hon’ble High Court and which prevents the plaintiff/respondent from releasing the amount prior to release of the picture as per the agreement? 5) Whether the defendants/appellants are liable to pay the sum of Rs.5,00,000/- towards principal amount a sum of Rs.12,90,000/- towards interest from 21.09.1996 to till date totaling Rs.19,90,000/- 6) To what other reliefs the parties are entitled? 6. During the trial the plaintiff/respondent was examined as P.W.1. The plaintiff/respondent also examined one C.V.Palanivelu as P.W.2. The plaintiff also marked Ex.A.1 to A.9. The third defendant examined himself as D.W.1 and marked Ex.B1 and B.2 on his side. 7. On consideration of the oral and documentary evidence, the learned V Additional Judge, City Civil Court, Chennai had decreed the suit for a sum of Rs.5,00,000/-(Rupees Five Lakhs only) together with interest at the rate of 12% per annum from the date of borrowal from 21.09.1996 till the date of decree i.e. 30.11.2015 and thereafter, at the rate of 6% from the date of decree till realization of the decree amount with cost. Aggrieved by the judgment and the decree passed by the trial Court, the present appeal suit has preferred at the instance of the defendant as appellant. 8. Aggrieved by the judgment and the decree passed by the trial Court, the present appeal suit has preferred at the instance of the defendant as appellant. 8. Before this Court, the learned counsel appearing for the appellants/defendants would submit that the plaintiff/respondent is not a Financier in the Film Industry, but he is only a Film Distributor and only for that purpose distribution rights of the said movie in certain areas was allotted to him under the agreement as prevailed in Cinema Industry if the alleged agreement is actually a Financial Agreement, the charges over the distribution areas would not have been mentioned in the Agreement. Even assuming it a Financial Agreement, it is a time barred debt since the agreement was executed on 21.09.1996 and therefore, the defendants/appellants are not liable to pay any amount to the plaintiff/respondent. Hence, the learned counsel for the appellants/defendants would argue that the learned trial Judge failed to appreciate the above facts and passed a decree in favour of the plaintiff/respondent. 9. The learned counsel appearing for the appellants/defendants would submit that the trial Court without taking note of the above factual aspects, decreed the suit and therefore, the judgment and decree passed by the trial Court is liable to be dismissed. Hence, prayed for allowing the appeal by setting aside a decree passed by the trial Judge in O.S.No.11300 of 2010 dated 30.11.2005. 10. The respondent remained absent. 11. After considering the arguments put-forth by the appellants/defendants counsel and perused the materials on record. The following points arises for consideration. 1. Whether Ex.A.1 is a Financial Agreement or a Distribution Agreement. 2. Whether the suit is barred by limitation and the same is not considered by the trial Judge. 3. Whether the appellants/defendants are liable to pay the suit claim to the plaintiff/respondent. 12. Point No.1& 2 According to the plaintiff/respondent, on 21.09.1996 the plaintiff/respondent has advanced a sum of Rs.5,00,000/- to the defendant under Ex.A1 agreement date 21.09.1996. It is the case of the plaintiff/respondent that the said loan amount was given to the defendant by the plaintiff/respondent for production expenses of a Tamil Movie namely “Manasu” and as per the terms and conditions of the said Agreement, the appellants/defendants have created first charge in respect of the territorial rights of Trichy, Tanjore, Pudukottai Nagar, Nagai-Quaid-e-Millath Districts, Tirunelveli, Salem, Dharmapuri, North Arcot and Tiruvannamalai District. It is further submitted that the appellants/defendants agreed to repay the said sum with interest at the rate of 36% per annum. Thereafter, in pursuant to the order in O.S.A.Nos.47 of 2000 and 48 of 2000 in C.S.No.986 of 1998, an Advocate Commissioner was appointed to release the picture and accordingly the picture was released on 15.12.2000. The Advocate Commissioner also deposited a sum of Rs.10,00,000/- in Indian Bank, Saligramam Branch, Chennai. It is submitted that though charges became futile, the charges by virtue of deposit made in the bank still exists and the security created in favour of the plaintiff/respondent by the defendant is still inforce and since the picture was released only on 15.12.2000, the suit is filed within the limitation period. On the other hand the appellants/defendants in their written statement and during trial has stated that, the cause of action for the recovery of the amount arose on 21.11.1996 as per the Finance Agreement and therefore, the limitation period expired on 20.11.1999. However, the suit was filed only in December 2003. Hence, the suit is barred by limitation. It is further submitted that the plaintiff/respondent was interested to release the movie in the area mentioned in the agreement and since the film was due for release the plaintiff/respondent had volunteered to finance, for the completion of the movie. Hence, the money given under the Finance Agreement was used for post production expenses. Therefore, it is not correct that the defendant approached the plaintiff/respondent for finance for the movie since he is not a Financier but a Distributor. Though the movie was released by the Advocate Commissioner, the plaintiff/respondent chose not to release the movie in the areas to be distributed by them. Therefore, the security given in favour of the plaintiff/respondent has became futile. The above security is only to escape from bar of limitation and moreover there is no correspondence between the plaintiff/respondent and the appellants/defendants either in oral or in writing for return of money advanced by virtue of the said agreement. 13. The specific claim of the plaintiff/respondent is that the plaintiff/respondent is a financier of the Film Industry and only at the request of the defendant he advanced a sum of Rs.5,00,000/- to the appellants/defendants for the purpose of producing a Tamil film namely “Manasu” and for such advance, a financial agreement dated 21.09.1996 was executed. 13. The specific claim of the plaintiff/respondent is that the plaintiff/respondent is a financier of the Film Industry and only at the request of the defendant he advanced a sum of Rs.5,00,000/- to the appellants/defendants for the purpose of producing a Tamil film namely “Manasu” and for such advance, a financial agreement dated 21.09.1996 was executed. The said agreement was marked as Ex.A.1. On contrary the defendant would contend that it is not Financial Agreement and it is only a Distribution Agreement. However, the appellants/defendants have not denied the borrowal of Rs.5,00,000/- from the plaintiff/respondent under Ex.A1 Agreement. Though the appellants/defendants would contend that the signature of the plaintiff/respondent was not found in the said Agreement, the signature of the appellants/defendants found in the said Agreement. Even in the written statement filed by the appellants/defendants, the execution of Ex.A1 agreement dated 21.09.1996 was categorically admitted by them. Therefore, the non-production of the Original Agreement and the signature of the plaintiff/respondent found no place in the agreement is of no significance. Moreover, on perusal of Ex.A1 Agreement, it is specifically styled as Finance Agreement executed for the purpose of amount given by the plaintiff/respondent to the appellants/ defendants for the production of the above mentioned film. If it is really a Distribution Agreement, it would have been executed only for the purpose of distribution rights. But in the said agreement, it is clearly mentioned that a sum of Rs.5,00,000/- was tendered as as short term loan to the appellants/ defendants with the charge of exhibition rights of the movie in certain areas. Above all in the said Agreement itself the appellants/defendants have undertaken to execute promissory notes for the said borrowal and also to repay the amount borrow with interest. In the written statement filed by the appellants/defendants also, they have mentioned that the plaintiff/respondent volunteered to finance for the completion of the movie. Therefore, it is very clear that the money given by the plaintiff/respondent to the appellants/defendants only as a loan for meeting out the post production expenses of the movie. The same is also categorically admitted by the 3rd defendant examined as D.W.1. Furthermore, Ex.A2 and A.3 the copy and original letters dated 21.09.1996 addressed by the defendants/appellants to Gemini Colour Laboratory, who process the film in their laboratory, would also establish the fact that the appellants/defendants have entered into a Finance Agreement with the plaintiff/respondent. The same is also categorically admitted by the 3rd defendant examined as D.W.1. Furthermore, Ex.A2 and A.3 the copy and original letters dated 21.09.1996 addressed by the defendants/appellants to Gemini Colour Laboratory, who process the film in their laboratory, would also establish the fact that the appellants/defendants have entered into a Finance Agreement with the plaintiff/respondent. Therefore, the contention of the learned counsel for the appellants/defendants that Ex.A.1 Agreement is not a Financial Agreement but only a Distribution Agreement cannot be accepted. 14. The further contention of the learned counsel for the appellants/ defendants is that the suit is barred by limitation, if it is a Financial Agreement. According to him, as per the Agreement the plaintiff/respondent ought to have filed the suit within a period of three years i.e., in the year 1999, but the suit has been filed by the plaintiff/respondent only in the year 2003 and as such, the suit is barred by limitation and the plaintiff/respondent is not entitled for the suit claim. Even according to the appellants/defendants the film was not exhibited in the areas on which the rights of distribution of the film was reserved by the plaintiff/respondent. In Ex.A1 Agreement it is also mentioned that the parties have agreed that the charged areas shall not be disposed of to anyone without the prior written sanction or written consent of the plaintiff/respondent and the picture will not be released anywhere in the charged areas without settling the dues to the plaintiff/respondent. It is not in dispute that the appellants/defendants have borrowed a substantial amount from Indian Bank, Saligramam Branch and the said bank has been allowed for a first charge over the negatives, positives, release, prints etc., over the film. Such charges are also confirmed in Ex.B.1 letter dated 30.09.1995 written by the Gemini Colour Laboratory. Thereafter, the appellants/defendants have entered into a Finance Agreement with the plaintiff/respondent. Therefore in law, the plaintiff/respondent is having a second charge over the release of picture in particular areas. Though clauses 2(c) & 2(f) are with regard to fixing a time limit for repayment of loan by the appellants/defendants to the plaintiff/respondent, Clauses 2(g) & 2(j) are with regard to the charges created in favour of the plaintiff/respondent over the release of picture in certain areas like Kanyakumarai, Tirunelvi, Dharmapuri, North Arcot and Chittoor. Admittedly, only by virtue of order in O.S.A.Nos. Admittedly, only by virtue of order in O.S.A.Nos. 47 of 2000 and 48 of 2000 in C.S.No.986 of 1998, the Advocate Commissioner had released the picture on 15.12.2000 other areas other than the charges created in favour of the plaintiff/respondent. Moreover, the Advocate Commissioner had also deposited a sum of Rs.10,00,000/- in Saligramam Branch, Indian Bank, Chennai, after release of the said movie in certain areas. The appellants/defendants also alleged that the plaintiff/respondent wantonly failed to release the picture in the charged areas. Therefore, the charge created by the plaintiff/respondent in certain areas was still in-force at time of filing the suit. Therefore, the suit is well within time and the contention of the defendants/appellants that the suit is barred by limitation cannot be accepted. Accordingly, these points are answered in favour of the plaintiff/respondent. 15. Point No.3 As regards the plaintiff-s/respondent-s case, it has been established by the evidence of PW.1 and P.W.2 and also the documents marked as Ex.A.1 to A.9 respectively. No evidence, whatsoever, has been placed by the appellants/defendants to disbelieve the plaintiff-s/respondent-s case. The plaintiff/respondent has established his case of borrowal of the suit amount by the appellants/defendants by virtue of Ex.A.1 agreement. On the other hand, the appellants/defendants have failed to establish his defence version and in such view of the matter, it has to be held that the appellants/defendants have failed to discharge the burden resting upon him as per law. Therefore, the appellants/defendants are liable to pay the suit claim to the plaintiff/respondent. Accordingly, this point is answered. 16. Consequently, on analysis of the documentary and oral evidence I hold that the reasons afforded by the trial Judge in decreeing the suit does not suffer from any legal infirmity and consequently I uphold the said judgment and decree and the appeal is liable to be dismissed with cost. The decree and judgment in O.S.No.11300 of 2010 passed by the learned V Additional Judge, City Civil Court, Chennai, dated 30.11.2015 is confirmed. 17. In the result, the appeal suit is dismissed with cost and the trial Court judgment and decree passed in O.S.No.11300 of 2010 dated 30.11.2015 is hereby confirmed.