Sanjay Jain vs Raj Kumar Saha

@@ JUDGMENTTAG-JUDGMENT

Arijit Banerjee, J.—In a suit for money decree for Rs. 64,81,982/- as also declaration and injunction, the petitioner has filed the present application for the following interim reliefs:-

"(a) An order of injunction restraining the defendant nos. 1, 2 and 3 from realising money collected on account of the said film titled ''Black Mmail'' from any of the other defendants/respondents and/or if already realised from using the same till such time the claim of the plaintiff/petitioner in respect of the said film is settled;

(b) An order of injunction be made restraining the defendants/respondent nos. 5, 6, 7, 7, 9, 10 and 11 either by themselves or through their men, servants, agents assigns or any of them from disbursing and/or releasing money collected by them on account of the said film titled ''Black Mmail'' to the defendant/respondent nos. 1, 2 and 3, in any manner whatsoever;

(c) Receiver be appointed to take possession of D 5 Cassette for UFO of the said film titled ''Black Mmail'' and/or any copies thereof from the defendant nos. 1, 2 and 3 and/or their men, servants and/or agents with direction on such receiver to make over the same to the plaintiff;

(d) Receiver so appointed to forthwith take in his possession and/or custody total amount collected and/or realised by the defendants/respondents in connection with the said film titled ''Black Mmail'' with direction upon such receiver to keep such money in an interest bearing fixed deposit account till disposal of the instant application; "

Contention of the petitioner:-

The petitioner carries on business of manufacturing and trading of readymade garments. The respondent nos. 1 and 2 carry on business of production of movie in co-partnership under the name and style of ''Mutual Film Production'', the respondent no. 3. The respondent nos. 4 and 11 are the distributors of film and/or cinema hall owners.

On or about April 1, 2012, the respondent nos. 1 and 2 approached the petitioner for a loan of around Rs. 10 lakhs as part finance for the purpose of production of a Bengali film called ''Black Mmail'' (the said ''Film''). The said respondents offered to pay interest at the rate of 24 per cent per annum and further represented that the film would be released by November/December 2012 and the sum financed by the petitioner together with interest would be first paid to the petitioner from the sale of the satellite rights of the said film. Relying on such representation of the said respondents between 3rd April, 2012 and 19th August, 2012 the petitioner paid a total sum of Rs. 12,65,000/- to the said respondents.

On August 23, 2012, the respondent nos. 1 and 2 procured the petitioner''s signature on a document captioned ''Deed of Partnership'' which the petitioner signed without reading, relying on the said respondents. Subsequently, however, the said respondents asked the petitioner to ignore the said document and the same was given a go bye and was never given effect to.

In October, 2012, shooting of the said film was completed and Censor certificate was obtained by the respondent nos. 1, 2 and 3 on 5th November, 2012, the original whereof was kept by them with the petitioner. Since the release of the film was nowhere in sight, the petitioner made enquiry from the said respondents. On or about December 25, 2012 the said respondents offered to make the petitioner producer of the said film upon the petitioner investing a further sum of Rs. 15 lakhs in the said film which would be utilized for pre-releasing, advertising and promotion of the said film. The petitioner agreed to invest the further sum of Rs. 15 lakhs and in fact, did so.

A memorandum of understanding dated 10th January, 2013 was executed by and between the petitioner and the respondent nos. 1, 2 and 3 to the following effect:-

"(a) The amount of Rs. 14 lakhs paid by the plaintiff/petitioner to the defendant/respondent no. 3 by cash/cheque was duly acknowledged.

(b) The plaintiff/petitioner was entitled to the profit to the extent of 40% of the entire transaction with regard to the said film and if any loss being suffered by the said film then the loss was to be shared equally.

(c) It was agreed by the between the parties that if the said film makes profit then the profit sharing ratio will be as follows:-

(d) Just after the release of the said film whatever amount is realized by the firm from the market, firstly the plaintiff/petitioner will be entitled to receive his amount to the tune of Rs. 14,00,000/- without deducting any expenditure. Once the plaintiff/petitioner receives the sum of Rs. 14,00,000/- then only the partners, which includes the plaintiff/petitioner, will be entitled to receive the capital financed to the firm for the production of the said film. It was further agreed that the said capital will be received by the partner only after deduction of the expenditure and loan, if any, from the market towards the Firm i.e. for making the said film and not from the individuals.

(e) It was further agreed by and between the parties and also as the partner of Mutual Films Production, that only the plaintiff/petitioner will be the authorised signatory to any documents, which includes any agreement/MOU related to the said film.

(f) The plaintiff/petitioner was to become the Joint signatory to the Bank Account being Account No. 60091854211 at Bank of Maharashtra, Salt Lake Branch at Salt Lake, Kolkata-700064. It any bank account already opened apart from the above said bank account in the name of Mutual Films Production, then the same will be closed by the partners and only above said bank account will be kept open by virtue of the MOU.

(g) The name of the plaintiff/petitioner was to be published first in all respect as a Producer of the said film.

(h) The plaintiff/petitioner shall keep and/or maintain proper book of account. The book of account securities, vouchers, etc. shall kept at the place of the reasonable and be open to the inspection of the parties at all reasonable time.

(i) The parties will not create any lien and/or encumber the property of the firm i.e. Mutual Films Production, without the written consent of the plaintiff/petitioner.

(j) The right accrued under the MOU shall not be assignable by any of the parties without the written consent of others, and any purported assignment, including full or partial assignment or delegation to any agent, subcontractor, not permitted hereunder shall be void. The plaintiff/petitioner shall have the right at any time without the prior written consent of any of the other partners to assigns the MOU to any other person and the person who will assign this MOU will step in the shoes of the plaintiff/petitioner.

(k) That the above said amount shall be treated as a charge on the partnership firm till repayment of the entire above said advance amount by the plaintiff/petitioner i.e. Rs. 14,00,000/-.

(l) The parties assured that the charge created shall act as the first charge on the firm and it further agreed that the plaintiff/petitioner will have his right over the said film ''Black Mmail'' on the first release and its subsequent releases which also extend his rights upon all satellite rights, video rights and audio rights.

(m) The defendant/respondent nos. 1, 2 and 3 assured that the D5 cassette for UFO and Quebe Digital, D G Beta Cassette for satellite, Beta Cassette for local channel in total 6 cassettes of the said firm of the defendant/respondent no. 3 will be handed over to the plaintiff/petitioner and it was also assured by the defendant/respondent nos. 1 and 2 that no copy of the aforesaid cassettes has not been created and/or kept with anybody and the same is the original one. The original certificate of the Censor Board of India of the said film will also be with the plaintiff/petitioner."

Thereafter, from time to time at the request of the said respondents and with the hope of recovering the monies already invested in the film, the petitioner advanced from time to time a further sum of Rs. 15,82,191/- to the said respondents. In all, the petitioner has paid Rs. 28,47,191 to the said respondents.

The said film was eventually released on 25th January, 2013. In terms of memorandum of understanding dated 10th January, 2013, the petitioner was first entitled to receive a sum of Rs. 14 lakhs from the amount realized by the said film from the market. In spite of demands, however, the said respondents failed to repay to the petitioner the said sum of Rs. 14 lakhs.

The petitioner lodged a complaint with the Eastern India Motion Pictures Association seeking their help in recovering the financed amount. By his Advocate''s letter addressed to the respondent nos. 4 to 11 the petitioner cautioned the said respondents not to distribute money, if any, realized by them on account of the said film to the respondent nos. 1,2 and 3. The petitioner also lodged a criminal complaint against the respondent nos. 1, 2 and 3 with the Officer-in-Charge, Park Street Police Station complaining of fraud perpetrated by the respondent nos. 1, 2 and 3 on the petitioner.

By his Advocate''s letter dated May 13, 2013 the petitioner demanded from the respondent nos. 1 and 2 the sum of Rs. 28,47,191/- but in vain. The said respondents are also wrongfully and in breach of agreement withholding the D 5 cassettes for UFO and Quebe Digital, DG Beta cassette for satellite and Beta Cassette for local channel, which they are obliged to hand over to the petitioner.

In the aforesaid factual matrix the petitioner has filed the above suit and has made the present application therein claiming the interim reliefs set out hereinabove.

Case of the respondent nos. 1, 2 and 3:

The respondent nos. 1, 2 and 3 have denied the statements and contentions of the petitioner. According to them the petitioner is a party to the deed of partnership dated 23 August, 2012 and, is, therefore, not entitled to maintain the present suit. As per the deed dated August 23, 2012, the partners agreed to continue with the business under the name and style ''Mutual Film Production''. At the relevant time, the production of the Bengali feature film ''Black Mmail'' was in progress. As per terms and conditions of the said partnership the capital of the firm was fixed at Rs. 80,00,000/- to be contributed by the four partners in equal shares. The plaintiff intentionally and deliberately did not invest his share of Rs. 20,00,000/- but made investment of Rs. 14,65,000/- only up to January 9, 2013.

On 9th January, 2013 the petitioner obtained the signature of the respondent nos. 1 and 2 on an agreement without showing the contents thereof to the said respondents. After obtaining such signatures, the petitioner made payment of a further sum of Rs. 7,00,000/- in phases.

Due to non-payment of his share by the petitioner within time the partners have had to raise loans from the market and have incurred expenditure of Rs. 87,00,000/- out of which huge amount is lying due to creditors. In all, the petitioner has invested Rs. 27,65,000/- and for the excess payment the petitioner is entitled to get interest as per the terms of the agreement.

At the time of release of the said film, the petitioner disclosed a copy of a memorandum of understanding notarized on January 10, 2013 and claimed all the rights in respect of the said film. The respondent had signed such document without being aware of the contents thereof. Such memorandum has been executed in respect of the assets of the firm but the firm has not been made a party to the agreement and as such the same is not binding on the firm.

The petitioner lodged false complaints with authorities and police thereby seriously hampering the business of the film and causing huge loss to the firm to the extent of about Rs. 1 crore. Due to the illegal notices issued by the petitioner several exhibitors have refused to exhibit the said film in the cinema halls.

The petitioner intentionally cast a cloud over the title and ownership of the said film and as a result thereof the firm had to sell the satellite right at a low price.

The name of the petitioner has been published and circulated as co-producer but the petitioner through FM Radio channel has announced the name of the petitioner as the sole producer of the said film causing confusion in the mind of the exhibitors and other persons connected with the film trade.

The said film was produced by the respondent nos. 1, 2 and 3 in co-partnership with the petitioner and the petitioner is bound to share the loss suffered in the production of the film.

Court''s View:-

I have considered the rival contentions of the parties.

Allegations and counter-allegations have been made by the petitioner and the respondent nos. 1, 2 and 3 against each other. While the petitioner contends that he had lent and advanced the monies in question to enable the said respondents to tide over the financial crisis faced by the said respondents in the production of the said film and he is entitled to get back the said monies along with interest, the said respondents contend that the petitioner was a partner in the matter of production of the said film and is bound by the partnership deed dated 23 August, 2012. The petitioner, however, contends that such partnership deed was never acted upon or was given effect to and was given a complete go bye. The said respondents further urged that the petitioner by his illegal activities has caused huge loss to the business of the said film and the petitioner is bound to share such loss. These are disputed questions of fact which cannot be decided on affidavits and can only be decided at a regular trial.

However, what is not disputed is the authenticity of the memorandum of understanding dated 10th January, 2013 executed by and between the petitioner and the respondent nos. 1 and 2, salient terms whereof are set out hereinabove. Clause 4 of the said memorandum provides that just after the release of the said film whatever amount is being realised by the firm from the market, firstly the party of the Third Part i.e. the petitioner will be entitled to receive his amount to the tune of Rs. 14,00,000/- without deducting any expenditure and only thereafter would the partners be entitled to receive the capital invested in the firm for the production of the said film. It is also admitted in the affidavit in opposition filed by the respondent nos. 1, 2 and 3 at paragraph 5(e) that in all the petitioner has invested Rs. 27,65,000/- in connection with the production of the said film. Whether or not the petitioner is entitled to a decree for the said sum of Rs. 27,65,000/- or for the sum claimed in the plaint will be decided at the trial of the suit. However, in my view, a prima facie case has been made out by the petitioner for securing the sum of Rs. 27,65,000/-. The defence of the respondent nos. 1, 2 and 3 in their affidavit in opposition is not convincing evasive and convoluted. The balance of convenience, in my view, also warrants a protective order.

In view of the aforesaid there will be an order of injunction restraining the respondent nos. 1, 2 and 3 from realizing money on account of the film ''Black Mmail'' from any of the other respondents or if already so realized, from using the same without keeping apart a of sum of Rs. 27,65,000/- upon intimation to the petitioner.

As regards the D 5 cassettes for UFO and Quebe Digital and DG Beta Cassette for satellite and Beta cassette for local channel of the film ''Black Mmail'', the same were to be handed over to the plaintiff in terms of the memorandum of agreement in terms of the clause 13 of the memorandum dated 10th January, 2013. Accordingly the respondent nos. 1, 2 and 3 are directed to hand over the aforesaid cassettes to the Advocates on record of the petitioner and the respondent nos. 1, 2 and 3 who will hold such cassettes as joint receivers without remuneration till the disposal of the suit. The order of injunction passed above will also continue till the disposal of the suit.

The application is, thus, disposed of without, however, any order as to costs.