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Judgment
M. Jeyapaul, J.—C.S. No. 305 of 1997 has been filed by M/s. Shanti Films
(i) for declaration that the plaintiff is the limited copyright owner of the 16mm Video and Television rights of the three Tamil pictures titled ''Nadodi Mannan'', Adimaippenn'' and ''Ulagam Sutrum Valiban'' for a period of twenty years from 13.12.1990; and
(ii) for a permanent injunction restraining the defendants their agents, servants, men or anybody claiming through or under them from in any way infringing the copyright of the plaintiff by dealing with, or attempting to deal with the 16mm Video and TV rights of the said three Tamil Pictures, viz., ''Nadodi Mannan'', ''Adimaippenn'' and ''Ulagam Sutrum Valiban'' in any manner whatsoever either by delivering the prints of the said pictures for 16mm Video and Television, etc.
C.S. No. 173 of 1999 has been filed by R. Kavitha of M/s. Karpagam Circuit
i) for a declaration that the plaintiff is the sole, absolute and exclusive owner of the copyrights namely the negative rights including 8mm, 16mm (except 5 years from 5.5.1997) and 35 mm Satellite TV and all other rights pertaining thereto in respect of the Tamil talkie pictures titled ''Nadodi Mannan'', ''Adimaippenn'' and ''Ulagam Sutrum Valiban'' for a perpetual period of 99 years and that she is entitled to mutation of name in the records of the second defendant laboratory; and
ii) for a permanent injunction restraining the defendants, their agents, servants or anybody claiming through or under them from in anyway dealing with the negative rights of the said three pictures ''Nadodi Mannan'', ''Adimaippenn'' and ''Ulagam Sutrum Valiban'' including 8mm, 16mm and 35 mm Satellite, TV and in any other dimensions or in any other manner whatsoever.
C.S. No. 765 of 1999 has been filed by Emgeeyar Pictures (P) Limited
i) for declaration that the plaintiff is the owner of the limited copyright in respect of 16 mm and 35 mm Video, Satellite and Television of the three Tamil films ''Nadodi Mannan'', ''Adimaippenn'' and ''Ulagam Sutrum Valiban''; and
ii) for a decree for permanent injunction restraining the defendants, their agents, men, servants and anybody claiming through or under them from in any way infringing the copyright dealing with or attempt or screen the 16mm and 35mm films in Video, Television and Satellite with respect to the three Tamil films ''Nadodi Mannan'', Adimaippenn'' and ''Ulagam Sutrum Valiban'' in any manner whatsoever.
All the above referred three suits have been taken up for joint trial and evidence was recorded in C.S. No. 173 of 1999 as the issues involved in all the three suits are found inner-connected with each other.
M/s. Shanti Films represented by its Proprietor K. Rajamanickam is the plaintiff in C.S. No. 305 of 1997. R. Kavitha carrying on film distribution business in the name and style M/s. Karpagam Circuit is the plaintiff in C.S. No. 173 of 1999. Admittedly M/s. Karpagam Circuit, run by R. Kavitha who is none other than the wife of K. Rajamanickam, is the sister concern of M/s. Shanti Films. The first defendant Emgeeyar Pictures Private Limited in these two suits has filed a suit in C.S. No. 765 of 1999 arraying the plaintiffs in C.S. No. 305 of 1997 and 173 of 1999 as defendants 1 and 2 respectively. M/s. Gemini Colour Laboratories is the second defendant in C.S. Nos. 305 of 1997 and 173 of 1999 and third defendant in C.S. No. 765 of 1999. As the plaintiffs in C.S. Nos. 305 of 1997 and 173 of 1999 have come out with same set of plaint pleadings in C.S. Nos. 305 of 1997 and 173 of 1999 and counter pleadings in C.S. No. 765 of 1999 and Emgeeyar Pictures Private Limited who is the first defendant in C.S.Nos. 305 of 1997 and 173 of 1999 and plaintiff in C.S. No. 765 of 1999 has come out with similar set of counter pleadings in C.S. Nos. 305 of 1997 and 173 of 1999 and plaint pleadings in C.S. No. 765 of 1999, the common pleadings, in brief, of the parties are detailed hereinbelow.
The pleadings of the plaintiffs in C.S.Nos. 305 of 1997 and 173 of 1999 and defendants 1 and 2 in C.S. No. 765 of 1999 is are follows:
K. Rajamanickam is the proprietor of M/s. Shanti Films. R. Kavitha of M/s. Karpagam Circuit is none other than the wife of K. Rajamanickam. M/s. Karpagam Circuit is the sister concern of M/s. Shanti Films. M/s. Shanti Films was originally a partnership concern. After the demise of Kailasa Gounder, the father of K. Rajamanickam, the latter has become the sole proprietor of M/s. Shanti Films. M/s. Shanti Films and Karpagam Circuit are carrying on business in film distribution. By an agreement dated 7.4.1987, M/s. Shanti Films acquired the distribution rights of the picture ''Adimaippenn'' for the entire Tamil Nadu, Karnataka and Kerala for a total consideration of Rs. 2,10,000/= for a period of seven years. For a further period of three years, an agreement dated 13.12.1990 was entered into between M/s. Shanti Films and Emgeeyar Pictures Private Limited. M/s. Shanti Films purchased the distribution rights of the films ''Ulagam Sutrum Valiban'' and ''Nadodi Mannan'' from Emgeeyar Pictures Private Limited under the agreement dated 24.4.1989 for a total consideration of Rs. 5,25,000/=. Under the letter of arrangement dated 18.8.1994, the distribution right was extended for a further period of 8-1/2 years. In the meanwhile, on 13.12.1990, a separate agreement was entered into by M/s. Shanti Films with Emgeeyar Pictures Private Limited in respect of 16 mm Video and TV rights of those three films ''Nadodi Mannan'', ''Adimaippenn'' and ''Ulagam Sutrum Valiban'' for a total consideration of Rs. 1,25,000 for a period of twenty years from the date of the agreement. The entire consideration of Rs. 1,25,000/= was paid by M/s. Shanti Films to Emgeeyar Pictures Private Limited. Under the letter of arrangement dated 18.10.1995, M/s. Karpagam Circuit, the sister concern of M/s. Shanti Films acquired the world negative rights, 8mm, 16mm and TV rights of the said three pictures separately for a total consideration of Rs. 26,50,000/= for a perpetual period of 99 years. The entire consideration of Rs. 26,50,000/= was paid by M/s. Karpagam Circuit to Emgeeyar Pictures Private Limited. The Managing Director of Emgeeyar Pictures Private Limited died on 1.7.1996. Mrs. Nirmala Ravindran being the Director of M/s. Emgeeyar Pictures Private Limited has received the payments by demand drafts on 26.5.1993, 23.7.1996 and 5.4.1997 as part of the amount due under the agreement dated 18.10.1995. Emgeeyar Pictures Private Limited represented by Mrs. Nirmala Ravindran demanded some more money and received final payment of Rs. 2,00,000/= under demand draft dated 5.4.1997. M/s. Shanti Films agreed to pay Rs. 3,00,000/= more and as a result of which, a letter of arrangement dated 4.6.1997 granting the negative rights of the above three pictures was entered into. Though Mrs. Nirmala Ravindran had encashed the demand draft for Rs. 2,00,000/=, she had chosen to withhold the cheque for Rs. 3,00,000/= issued by M/s. Shanti Films to her. As Emgeeyar Pictures Private Limited is making an attempt to deal with the rights with the third parties, the suit in C.S. No. 305 of 1997 is filed by M/s. Shanti Films and C.S. No. 173 of 1999 is filed by M/s. R. Kavitha of M/s. Karpagam Circuit for the aforesaid reliefs. The suit in C.S. No. 765 of 1999 filed by Emgeeyar Pictures Private Limited is contested by M/s. Shanti Films and R. Kavitha of M/s. Karpagam Circuit on the aforesaid grounds.
The plaint pleadings in C.S. No. 765 of 1999 and counter pleadings in C.S.Nos. 305 of 1997 and 173 of 1999 of Emgeeyar Pictures Private Limited is as follows:
M/s. Shanti Films and M/s. Karpagam Circuit are proprietorship concerns run by K. Rajamanickam and his wife R. Kavitha respectively. Emgeeyar Pictures Private Limited had film distribution business with M/s. Shanti Films and M/s. Karpagam Circuit. In the year 1989, an agreement was entered into by Emgeeyar Pictures Private Limited and M/s. Shanti Films. Emgeeyar Pictures Private Limited granted the distribution rights of the pictures ''Ulagam Sutrum Valiban'' and ''Nadodi Mannan'' till 10.5.1994 and 2.5.1994 respectively. All rights granted to them under those agreements have come to an end. Thereafter, there was no grant of distribution rights in favour of M/s. Shanti Films and M/s. Karpagam Circuit. It is false to state that an agreement was entered into between Emgeeyar Pictures Private Limited and M/s. Shanti Films on 13.12.1990. Emgeeyar Pictures Private Limited denies the allegation that the letter of arrangement dated 18.10.1995 was given by Ravindran. M/s. Shanti Films has produced false and forged records before the court. Emgeeyar Pictures Private Limited also denies the very averment that an agreement dated 13.12.1990 was entered into with M/s. Shanti Films. Many incongruities are found in the alleged agreement dated 13.12.1990 and 24.4.1989. Exploiting the absence of Mr. K. Ravindran, tall and untenable claims against Emgeeyar Pictures Private Limited have been made. The alleged letter of understanding dated 4.7.1997 is denied. M/s. Shanti Films Private Limited had at no point of time handed over the original letter of arrangement dated 18.10.1995. Emgeeyar Pictures Private Limited never assigned its copyrights in respect of those three pictures for a perpetual period of 99 years to M/s. Karpagam Circuit. The letter of arrangement dated 18.10.1995 and the letter of understanding dated 4.6.1997 can at best be treated as an agreement to assign in future and it is not at all an assignment of copyright itself. Therefore, Emgeeyar Pictures Private Limited prays for the relief as referred to above in C.S. No. 765 of 1999 and seeks for dismissal of the suits in C.S.Nos. 305 of 1997 and 173 of 1999.
Third defendant in C.S. No. 765 of 1999 and second defendant in the other suits, who has no interest in the dispute between the other parties in the suit, has submitted in the written statement that it was prepared to go by the verdict of this Court.
The issues that were framed in C.S. No. 305 of 1997 are as follows:
Whether the alleged agreement dated 13.12.1990 is genuine and legally valid document.
If so, can the plaintiff claim copyrights in respect of the 16 mm Video and TV rights for the suit pictures.
Has the plaintiff paid all the amounts set out in the alleged suit agreement dated 13.12.1990 to the defendant company.
Whether the alleged payments dated 16.12.1989 and 12.1.1990 are true and whether they are towards the agreement dated 13.12.1990.
Whether the plaintiff was given the copyright in respect of video, 16 mm, TV rights in respect of three pictures to 20 years as alleged.
Whether the plaintiff is entitled to a decree of declaration and permanent injunction in respect of the suit pictures, as prayed for.
To what relief are the parties entitled?
The issues that were framed in C.S. No. 173 of 1999 are as follows:
Whether the alleged suit document, letter of arrangement dated 18.10.1995 is genuine and legally valid document.
If so, does it confer any copyright in favour of the plaintiff regarding the suit pictures.
Has the plaintiff paid any amounts under the suit document dated 18.10.1995.
Is the alleged payments dated 23.5.1999, 23.7.1997 and 5.4.1997 are true and whether they are towards the business in question of this suit.
Whether the document said to have been executed by the son of the first defendant Nirmala Ravindran is genuine and binding upon the first defendant.
Whether the suit is bad for non-joinder of necessary parties.
Whether the suit is liable to be dismissed in terms of Section 69 of the Partnership Act.
Whether the suit is liable to be dismissed on account of turpitude on the part of the plaintiff.
Whether the plaintiff is entitled to the reliefs of declaration and injunction, as claimed in the plaint, for the suit pictures.
To what relief are the parties entitled?
The issues that were framed in C.S. No. 765 of 1999 are as follows:
Whether the alleged agreement dated 13.12.1990 is genuine and legally valid document.
If so, can the plaintiff claim copyrights in respect of the 16 mm Video and TV rights for the suit pictures.
Has the plaintiff paid all the amounts set out in the alleged suit agreement dated 13.12.1990 to the first defendant company and does it confer any right in favour of the second defendant.
Whether the plaintiff is entitled to a decree of declaration and permanent injunction in respect of the suit pictures, as prayed for.
To what relief are the parties entitled?
M/s. Shanti Films is referred to as Shanti Films, M/s. Emgeeyar Pictures Private Limited is referred to as Emgeeyar Pictures and M/s. Karpagam Circuit is referred to as Karpagam Circuit in this judgment for the sake of brevity.
Issues: 1, 2, 3 & 5 in C.S. No. 305/97 & Issues 1, 2 and 3 in C.S. No. 765/99:
There is no dispute to the fact that Emgeeyar Pictures is a Private Limited Company originally managed by the then Managing Director Mr. K. Ravindran. On his demise on 1.7.1996, Mrs. Nirmala Ravindran has become the Managing Director of Emgeeyar Pictures. Though there is some dispute with regard to the composition of Shanti Films and Karpagam Circuit, the fact remains that Emgeeyar Pictures described Shanti Films and Karpagam Circuit in the suit filed by it as Proprietorship Concerns represented by their Proprietors concerned.
Learned Counsel appearing for Shanti Films would contend that the execution of the agreement dated 13.12.1990 marked as Ex.P2 was not specifically denied by Emgeeyar Pictures. The signature of Ravindran, the then Managing Director was also not disputed in the written statement filed by Emgeeyar Pictures. A comparison of the admitted signature of Ravindran found in Ex.P14 with the disputed signature of Ravindran found in Ex.P2 would go to establish that Ex.P2 was also signed by K. Ravindran, the then Managing Director. It is her further contention that the payments towards agreement, Ex.P2 was established by marking the relevant documents, Exs.P34 and P35. It is further submitted that Exs.P2 and P14 are contemporaneous documents. Ex.P2 deals with 16mm prints of Tamil Films viz., ''Nadodi Mannan'', ''Ulagam Sutrum Valiban'' and ''Adimaippenn''. But, Ex.P14 is a common document relating to the rights of the film ''Adimaippenn'' only.
Learned Counsel appearing for Emgeeyar Pictures would contend that a careful perusal of the written statement filed by Emgeeyar Pictures would go to show that there is a specific denial not only of the execution of Ex. P2 but also of the signature of K. Ravindran, the then Managing Director of Emgeeyar Pictures found therein. The interpolations, additions and deletions found in Ex.P2 were not explained by Shanti Films. There is no tangible evidence to establish the payment of 1.25 lakhs referred to in Ex.P2. Shanti Films also has not come out with any explanation as to why two contemporaneous documents, Exs.P2 and P14 were executed by the parties for quite similar business transaction.
Emgeeyar Pictures has taken a stand in the written statement filed by it in C.S. No. 305 of 1997 and its plaint pleadings in C.S. No. 765 of 1999 that the agreement dated 13.12.1990 is a false and forged document. Therefore, it is not as if the execution of the agreement, Ex.P2 dated 13.12.1990 was admitted by Emgeeyar Pictures.
The signature of K. Ravindran found in Ex.P2 is seriously disputed. The fact remains that the execution of Ex.P14 by K. Ravindran was not at all disputed. Of course, those two documents were executed by the respective parties on the very same day. Further, the agreement, Ex.P9 dated 7.4.1987, letter of arrangement, Ex.P12 dated 23.3.1988 and the agreement, Ex.P13 dated 24.4.1989 executed by late K. Ravindran were not disputed by Emgeeyar Pictures.
The court has every authority to compare the disputed signature with that of the admitted signature to arrive at a conclusion as to whether the disputed signature tallies with the admitted one. On a careful comparison of the signature of K. Ravindran found in Ex.P2 with that of the admitted signature found in Exs.P9, P12, P13 and P14, it is found that K. Ravindran has signed the document, Ex.P2 also. Therefore, the court finds that Emgeeyar Pictures has simply denied the execution of the agreement Ex.P2 by K. Ravindran in his capacity as the then Managing Director of Emgeeyar Pictures without any basis.
Admittedly, Karpagam Circuit is a sister concern of Shanti Films. K. Rajamanickam, the Proprietor of Shanti Films is none other than the husband of R. Kavitha, the Proprietrix of Karpagam Circuit. Therefore, in the agreement, Ex.P2 the name of Shanti Films was found inserted having struck off the original inscription Karpagam Circuit. To make the agreement more specific, the nature of print for exhibition, exploitation and distribution was also added. Instead of video rights, TV video rights was added in the agreement. On a careful perusal of Ex.P2, it is found that each and every such additions detailed above have been properly attested by K. Ravindran. Therefore, such additions properly authenticated by the author of the document does not make the document invalid.
The document itself reads that the total consideration for the business transaction clinched under the agreement, Ex.P2 was Rs. 1,25,000/=. The payment of a sum of Rs. 50,000/= on 11.12.1989 and a sum of Rs. 41,000/= on 17.1.1990 were specifically referred to therein. To substantiate such payments referred to in ex.P2, Shanti Films has chosen to produce copies of demand drafts, Ex.P34 dated 6.12.1989 and Ex.P35 dated 12.1.1990 taken in favour of Emgeeyar Pictures. That would go to establish that a sum of Rs. 50,000/= and another sum of Rs. 41,000/= were paid by Shanti Films by way of Demand Draft to Emgeeyar Pictures just prior to the execution of Ex.P2. In the very same document, Ex.P2, cash payment of Rs. 34,000/= was referred to. Thus, the total amount of consideration of Rs. 1,25,000/= for the business transaction under Ex.P2 was established by Shanti Films. Therefore, the submission made by the counsel for Shanti Films that payment of consideration for the agreement, Ex.P2 was not proved does not have any leg to stand upon.
It is found that Exs.P2 and P14 are contemporaneous documents which came into existence on 13.12.1990. The question that arises for consideration is as to why the parties have chosen to execute such overlapping documents on the very same day. Ex.P2 has been executed for the purpose of granting 16 mm prints and TV video rights for all the three films ''Nadodi Mannan'', ''Adimaippenn'' and ''Ulagam Sutrum Valiban'' for a period of twenty years. But, Ex.P14 is absolutely an agreement for extension of the period contemplated under the earlier agreement dated 7.4.1987 for only one film viz., ''Adimaippenn''. The entire rights of distribution, exhibition and exploitation of the said films has been referred to in Ex.P14. The parties in their wisdom have chosen to extend the period for the film ''Adimaippenn'' under Ex.P14 and at the same time, to clinch another document, Ex.P2 for three films including the film referred to in Ex.P14. Though the business transaction as per Exs.P2 and P14 is found to be overlapping, the court finds that such overlapping terms and conditions found in the contemporaneous documents does not invalidate Ex.P2. Therefore, rejecting the vexatious contention of Emgeeyar Pictures, it is held that agreement dated 13.12.1990 is genuine, legal and valid document, that Shanti Films has got copyrights in respect of 16 mm Video and TV rights in respect of the three films viz., for a period of twenty years and that the payments on 6.12.1989 and 12.1.1990 were also made towards the agreement dated 13.12.1990. The issues are answered accordingly.
Issues 6 and 7 in C.S. No. 305 of 1997 and issue Nos. 4 and 5 in C.S. No. 765 of 1999:
Shanti Films has established that it is the limited copyright owner of 16 mm Video and Television rights of the three Tamil pictures titled ''Nadodi Mannan'', ''Adimaippenn'' and ''Ulagam Sutrum Valiban'' for a period twenty years from 13.12.1990. Such a right established under Ex.P2 will have to be declared and protected by issuing permanent injunction as sought for. As Emgeeyar Pictures has failed to establish their claim in C.S. No. 765 of 1999, Emgeeyar Pictures is not entitled to any relief as sought for. Answering the issues thus, it is declared that Shanti Films is the limited owner of copyrights and an order of permanent injunction is also granted restraining the defendants, their agents, servants, men or anybody claiming through or under them from in any way infringing the copyright of the plaintiff by dealing with or attempting to deal with the 16mm Video and TV rights of the said three Tamil pictures viz., ''Nadodi Mannan'', ''Adimaippenn'' and ''Ulagam Sutrum Valiban'' in any manner whatsoever either by delivering the prints of the said pictures for 16mm Video and Television, etc.
Issues 1 to 4 in C.S. No. 173 of 1999: Ex.P18 dated 18th October 1995 is an attested true copy of letter of arrangement for granting entire world negative rights of the picture ''Adimaippenn'', ''Ulagam Sutrum Valiban'' and ''Nadodi Mannan''. The learned Counsel for Karpagam Circuit, the plaintiff in C.S. No. 173 of 1999 would submit that Emgeeyar Pictures has failed to deny the execution of Ex.P18 by K. Ravindran. The genuineness thereof was not under challenge. The various payments referred to under Ex.P19 towards the letter of arrangement Ex.P18 were also not disputed by Emgeeyar Pictures. On a comparison of the signature of Ravindran found in Ex.P18 with the admitted signature found in Ex.P9, P12 and P13, one can easily come to the conclusion that it was only Ravindran who has authored the document, Ex.P18. Some documents have been produced by Karpagam Circuit to establish that the entire payments were also made. The overlapping nature of agreements entered into between the parties would not knock away the valuable right of Karpagam Circuit. The very fact that Emgeeyar Pictures received the last payment from Karpagam Circuit would go to show that Emgeeyar Pictures, having admitted the execution of Ex.P18, received the last payment. The paper publication effected by Karpagam Circuit in the aftermath of clinching the agreement, Ex.P18 with Ravindran would strengthen the case of Karpagam Circuit. As the original of Ex.P18 was already sent to Ravindran, the notarised copy has been filed. Even if there is no agreement, the execution of letter of arrangement, Ex.P18 coupled with entire payment of consideration therefore amounts to assignment of the copyright as contemplated u/s 19 of the Copyrights Act, 1957.
Per contra, the learned Counsel for Emgeeyar Pictures would contend that there is specific denial of the execution of Ex.P18 by Ravindran in the written statement and also in the evidence let in on the side of Emgeeyar Pictures. The very genuineness of Ex.P18 has been questioned by Emgeeyar Pictures. The receipt of full consideration was not at all admitted by Emgeeyar Pictures. Ex.P18, which is only a xerox copy alleged to have been notarised by a Notary Public, cannot be a substitute to the original thereof. When it has been specifically pleaded that Ex.P18 is a concocted and fabricated document, non production of original of Ex.P18 casts a cloud on the truth and validity of Ex.P18. Ex.P18 is only executory in nature. As the agreement contemplated under Ex.P18 was never executed by Ravindran, Karpagam Circuit cannot make any claim under Ex.P18. As regards the consideration for the arrangement alleged to have been clinched under Ex.P18, Karpagam Circuit has come out with many versions.
In Dy. General Manager, Redesignated as Dy. Director, ISB and Others Vs. Sudarshan Kumari and Others, , the Honourable Supreme Court has given a direction to the Registry to issue notice to the Notary to show cause as to why the Notary should not be prosecuted and punished for attesting a false affidavit of impersonators and why his licence should not be cancelled. That was a case where the deponent herself would state that she had not signed before the Notary Public that she had in fact asked someone to sign the affidavit. That was a clear case where the Notary was found to have misused the licence granted to him without any proper verification of the person who signed the document. Here, in the instant case, it is only a question of attestation of the document by the Notary on verification of the original. Therefore, the decision in the aforesaid case does not apply to the facts and circumstances of the case.
As per Rule 11(2) of the Notaries Rules, 1956 framed by the Central Government drawing powers u/s 15 of the Notaries Act, 1952, every Notary shall maintain notarial register in prescribed form XV which provides for entry of every notarial act in the notarial register. Certifying a copy of a document as true copy of the original is definitely a notarial act which will have to be performed in accordance with the aforesaid prescription.
The Bombay High Court in Prataprai Trumbaklal Mehta Vs. Jayant Nemchand Shah and Another, has held that a Notary has to make entry in the notarial register in respect of notarial act of certifying a copy of a document as true copy of the original. He has to put his signature on the copy of the document and keep a copy on his record. It is the responsibility of a Notary to satisfy himself that the original document intended to be executed before him was executed by the person concerned and not by someone else in the name of a different person. Here, in this case, the notarial act performed by the Notary Public comparing the original document and attesting the document as true copy was not at all challenged by Emgeeyar Pictures. They have simply objected, to the marking of the said document as it is a xerox copy attested as true copy by the Notary Public. If at all, Emgeeyar Pictures has questioned the notarial act performed by the Notary Public, Karpagam Circuit would have woken up and marked the register maintained by the Notary Pubic by examining him. When the official function of the Notary Public was not challenged, the court has to take judicial notice of the seal of the Notary and presume that the document in question must have been certified as true copy after comparison of the copy with the original. Therefore, the aforesaid decision arrived at by the Bombay High Court based on the challenge as to the function of the Notary under the Notaries Act and Rules does not apply to the facts and circumstances of the present case where an act of Notary was not at all under challenge.
As per Section 63 of the Indian Evidence Act, 1872, the secondary evidence means and includes copies made from the original by mechanical process which in themselves ensure the accuracy of the copy. The photocopy or xerox copy is a copy made by mechanical process. When the original document is shown to be in the possession and power of the person against whom, the document is sought to be proved, or when the original has been destroyed or lost, the secondary evidence may be let in u/s 65 of the Indian Evidence Act in regard to the existence condition or contents of a document.
Karpagam Circuit has sent by registered post with acknowledgment due, a letter dated 25.5.1996 enclosing therewith a demand draft for a sum of Rs. 1,60,000/=. The said communication has been acknowledged under Ex.P21. It is contended that Emgeeyar Pictures received only the aforesaid demand draft for Rs. 1,60,000/= and not the said letter. In the business transactions, no businessman would venture to send any demand draft without enclosing a letter thereto detailing the account towards which the payment is made by demand draft. No other letter enclosed alongwith the demand draft for Rs. 1,60,000/= sent by Karpagam Circuit was produced by Emgeeyar Pictures. Therefore, the court comes to the conclusion that the letter, Ex.P20 has been sent as a covering letter along with the demand draft for Rs. 1,60,000/= and the same was acknowledged by K. Ravindran, the then Managing Director of Emgeeyar Pictures under Ex.P21. It is very relevant to note that the original letter of arrangement has been enclosed along with the said covering letter to Emgeeyar Pictures.
On a careful perusal of yet another communication sent by Karpagam Circuit under certificate of posting marked as Ex.P22, it appears that Emgeeyar Pictures raised objection to send communication by registered post with acknowledgment due. Therefore, Karpagam Circuit has sent a communication under certificate of posting. In the said communication, Ex.P22, Karpagam Circuit has explained as to why it had to send the previous communication by registered post with acknowledgment due. The earlier communication had been sent by registered post with acknowledgment due as the original letter of arrangement was enclosed therewith. The aforesaid document would go to establish that Karpagam Circuit had already sent the original of Ex.P18 to Emgeeyar Pictures. When the original is not forthcoming from Emgeeyar Pictures, Karpagam Circuit is entitled to mark the notarised xerox copy available with it as secondary evidence as per Section 65 of the Evidence Act.
This Court in The Tamil Nadu Industrial Investment Corporation Ltd. v. N. Swaminathan and Ors. 2002 4 LW 147 has held that only in the case where the loss of document or destruction thereof was established, copies of a document can be permitted to be marked by way of secondary evidence. That was a case where the party has come out with a casual plea that the document was misplaced without making sincere efforts to trace it. But, in the case on hand, there is evidence to show that the original has been entrusted to the custody of the other side and the xerox copy notarised by the Notary Public was produced only when the original had been sent to the other side. In the above facts and circumstances, Ex.P18 marked as secondary evidence is accepted by this Court.
On a careful perusal of the counter pleadings of Emgeeyar Pictures, it is found that it has termed the documents, Exs.P18 and P19 as forged documents. The truth and validity of Exs. P18 and P19 have been challenged by Emgeeyar Pictures. On a comparison of the signature of K. Ravindran found in Exs.P18 and P19 with that of the admitted signature found in Exs.P9, P12 and P13, it is found that K. Ravindran is the author of Exs. P18 and P19. Under Ex.P18, the exclusive rights of distribution, exhibition and exploitation of three Tamil Talkie Movies ''Adimaippenn'', ''Ulagam Sutrum Valiban'' and ''Nadodi Mannan'' for the entire world negative rights for a perpetual period of 99 years including the 16 mm TV Video Rights have been agreed to be granted for a consideration of Rs. 26,50,000/=. The said document reads that a sum of Rs. 5,00,000/= was paid on 25.8.1995, Rs. 3,00,000/= was paid on 5.9.1995 and Rs. 2,50,000/= was paid on 18.10.1995 by Karpagam Circuit to Emgeeyar Pictures as on the date of the letter of arrangement executed by K. Ravindran. A detailed agreement to be executed on or before 7th day of April 1997 on payment of balance amount was also contemplated in Ex.P18.
K. Ravindran, the then Managing Director of Emgeeyar Pictures has passed on receipt for the payment of Rs. 1,50,000/= through Raju on 13.11.1995, Rs. 1,00,000/= through Raghu on 24.11.1995, Rs. 1,00,000/= through Viswanathan on 5.2.1996, Rs. 2,00,000/= through Raghu on 10.2.1996, Rs. 1,40,000/- through Raghu on 5.3.1996 and Rs. 1,50,000/= through K. Rajamanickam on 5.5.1996 under Ex.P19. The total amount of Rs. 19,90,000/= paid as above was referred to in the covering letter, Ex.P20. A sum of Rs. 1,60,000/= was also sent along with the covering letter, Ex.P20 towards the balance amount due. Karpagam Circuit has pleaded for the execution of the agreement under the correspondence, Exs.P22 and P23.
It is the admitted case that K. Ravindran passed away on 1.7.1996. Within about 22 days, Karpagam Circuit has chosen to pay a sum of Rs. 3,00,000/= by way of demand draft under Ex.P24 to Nirmala Ravindran, the present Managing Director. The receipt of the said amount from Karpagam Circuit was not denied by Emgeeyar Pictures. If at all there was no agreement under Ex.P18 between the then Managing Director of Emgeeyar Pictures and Karpagam Circuit, the present Managing Director who is none other than the wife of the erstwhile Managing Director of Emgeeyar Pictures would not have received the amount under Ex.P24.
It is contended on the side of Emgeeyar Pictures as if this amount was received towards the outstanding balance in the earlier transaction that took place prior to Ex.P18. But, the fact remains that the present Managing Director of Emgeeyar Pictures has received the said demand draft for Rs. 3,00,000/= on condition that Karpagam Circuit produced the original agreement entered into between Emgeeyar Pictures and Karpagam Circuit. Karpagam Circuit has sent a letter, Ex.P25 dated 3.8.1996 directly to Nirmala Ravindran, the present Managing Director of Emgeeyar Pictures detailing all payments made except a sum of Rs. 2,00,000/= towards the sale consideration of Rs. 26,50,000/= under Ex. P18. That was received by Nirmala Ravindran under Ex.P26. Karpagam Circuit again reminded under Ex.P27 the liability of Emgeeyar Pictures to execute the agreement in terms of Ex.P18 dated 18.10.1995. The remaining balance of Rs. 2,00,000/= out of Rs. 26,50,000/= was paid by demand draft as per the registered post sent under Ex.P28. The receipt of the said amount was not denied by Emgeeyar Pictures. In the various letters referred to above, Karpagam Circuit has come out with minute details of agreement, Ex.P18 dated 18.10.1995 executed by the husband of Nirmala Ravindran. She has not denied anything in the first correspondence, Ex.P29 dated 20.4.1997 emanated from her. She has simply called upon the Proprietrix of Karpagam Circuit to come for discussion. It has been simply stated therein that Nirmala Ravindran has not accepted any of the legal stand taken by the Proprietrix of Karpagam Circuit. She has not even chosen to deny the execution of the document by her husband at the first opportunity. If at all there had been no agreement between R. Kavitha, Proprietrix of Karpagam Circuit and K. Ravindran, Nirmala Ravindran would not have called upon R. Kavitha to come for a discussion immediately on receipt of the draft for Rs. 2,00,000/=, the last payment due under the letter of arrangement, Ex.P18.
It is found that Karpagam Circuit had come out with advertisements in the Newspaper about their acquisition of copyrights for the films, ''Adimaippenn'', ''Ulagam Sutrum Valiban'' and ''Nadodi Mannan'' as evidenced by paper publication, Ex.P45, P46, P47 and P48 series. Karpagam Circuit would not have ventured to advertise in the newspapers that they were the Proprietors of the copyright for the aforesaid three films, had they not entered into agreement, Ex.P18 with Emgeeyar Pictures. K. Ravindran, the then Managing Director of Emgeeyar Picture also would not have kept quite on the advertisements made by Karpagam Circuit claiming copyrights for the aforesaid three films. DW1 has categorically admitted during the course of evidence that PW1 came forward with some settlement proposal. She has also admitted the receipt of Rs. 9.60,000/= for the period from 18.2.1995 to 5.4.1997 under Ex.P16, P17, P24, P28 and D1. There would not have been any occasion for Emgeeyar Pictures to receive those amounts if Ex.P18 was a forged one. Ex.P18 marked as secondary evidence has been completely strengthened and reinforced by the other documents referred to above. It is proved that Emgeeyar Pictures entered into a letter of arrangement, Ex.P18 with Karpagam Circuit in respect of the aforesaid three films for a perpetual period of 99 years.
It is true that Ex.P18 is a letter of agreement which contemplates execution of agreement before the deadline fixed therein. But, the repeated demands for the execution of the agreement made by Karpagam Circuit not only before the erstwhile Managing Director but also before the present Managing Director of Emgeeyar Pictures had fallen on deaf ears. Karpagam Circuit has established that the entire amount of Rs. 26,50,000/= was already paid to Emgeeyar Pictures before the deadline fixed as per the terms of Ex.P18. The letter of arrangement, Ex.P18 and the payment of entire consideration therein confers copyright in favour of the plaintiff as per the terms of Ex.P18. Therefore, it is held that the letter of arrangement dated 18.10.1995 is a genuine, legal and valid document and it confers copyright in favour of Karpagam Circuit on payment of entire consideration regarding the films ''Adimaippenn'', ''Ulagam Sutrum Valiban'' and ''Nadodi Mannan'' and issues 1 to 4 are decided accordingly.
Issue No. 5: Ex.P1 is another letter of arrangement alleged to have been entered into between Karpagam Circuit and a representative of MGR Pictures. It is the admitted case of both the parties that after the demise of K. Ravindran, his wife Nirmala Ravindran has become the Managing Director. Karpagam Circuit has not produced any document to show that the signatory who signed for and on behalf of Emgeeyar Pictures has got any authority from the Managing Director Nirmala Ravindran of Emgeeyar Pictures. Therefore, Ex.P1, though established by Karpagam Circuit that it was executed by the son of Nirmala Ravindran, does not bind Nirmala Ravindran who is admittedly the Managing Director of Emgeeyar Pictures after the demise of her husband on 1.7.1996. The issue is answered accordingly.
Issue No. 6: No evidence was let in by Emgeeyar Pictures to establish that the suit is bad for non joinder of necessary party. Therefore, the issue is decided against Emgeeyar Pictures.
Issue No. 7: In the long cause title of the suit in C.S. No. 765 of 1999 filed by Emgeeyar Pictures, it has been categorically mentioned that Shanti Films and Karpagam Circuit are Proprietorship Concerns of K. Rajamanickam and his wife R. Kavitha respectively. When it is the admitted case of Emgeeyar Pictures that Karpagam Circuit and Shanti Films are Proprietorship Concerns, Section 69 of the Partnership Act is not attracted. The issue is answered accordingly.
Issue No. 8: There is no evidence on record to establish that there was turpitude committed by Karpagam Circuit. Therefore, the issue is answered against Emgeeyar Pictures.
Issues 9 and 10: It has been proved that the letter of arrangement, Ex.P18 was executed by K. Ravindran, the then Managing Director of Emgeeyar Pictures and the total consideration for the purchase of copyrights of the films ''Adimaippenn'', ''Ulagam Sutrum Valiban'' and ''Nadodi Mannan'' was also paid by Karpagam Circuit to the then Managing Director K. Ravindran and the present Managing Director Nirmala Ravindran of Emgeeyar Pictures. Therefore, Karpagam Circuit is entitled to the relief of declaration and injunction as prayed for with costs. C.S. No. 305 of 1997 and C.S. No. 173 of 1999 are decreed in the above terms with costs. C.S. No. 765 of 1999 is dismissed with costs.