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Madras High CourtCS/49/2003dismissed for nonprosecution

Jaswant Chand v. M/S.Gv Film Limited & Another

2017-12-13Honourable Mr Justice R. Subramanian10 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.02.2018

CORAM

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN C.S.No.49 of 2003 Mr.Jaswant Chand ... Plaintiff

Versus

1. M/s.G.V.Films Limited, "Sujatha Centre"

No.4, Seshadri Road, Alwarpet, Chennai 600 018.

2. Prasad Film Laboratories No.58 (Old No.22) Arunachalam Road, Saligramam, Chennai 600 093.

... Defendants Plaint filed under Order IV, Rule 1 of Original Side Rules read with Under Order VII Rule 1 of Civil Procedure Code and praying to pass a judgment and decree:

a) directing the 1st defendant to pay a sum of Rs.2,95,00,000/- together with interest at the rate of 36 per cent per annum from the date of the plaint till the date of realisation; b) for a permanent injunction restraining the defendants 1 and 2, their men, agents, servants etc from releasing the Tamil Film "Shokka Thangam" starring Vijaykant and others directed by K.Bhagyaraj throughout India as well as overseas as advertised in the newspapers Dinakaran and Daily Thanthi both dated 12.01.2003 without settling the dues to the plaintiff as contemplated under the agreement dated 19.03.2002;

c) directing the defendants to pay the costs of the suit. For Plaintiff : Mr.S.Samin S.Shah for Mr.M.Vijaya Kumar For Defendants : No appearance

J U D G M E N T

The plaintiff, who is the financier, has come forward with the suit for recovery of a sum of Rs.2,95,00,000/- with interest at the rate of 36% per annum from the date of plaint till the date of realization.

2. The brief averments in the plaint are as follows: According to the plaintiff, the first defendant-Company, which is engaged in production of cinematographic films had approached the plaintiff seeking finance for their upcoming film "Shokka Thangam". The plaintiff agreed to advance a sum of Rs.2,50,00,000/- and upon such acceptance by the plaintiff an agreement dated 19.03.2002 was entered into between the plaintiff and the first defendant. The plaintiff advanced a sum of Rs.2,50,00,000/- to the first defendant on 19.03.2002. It was proposed to release the movie during August 2002. The first defendant also had agreed to pay the loan amount with interest at 36% per annum, before the release of the said picture. The first defendant-Company also gave a letter to the 2nd defendant, viz. Prasad Film Laboratories,

undertaking that the defendants will not deliver the said picture to any party till such time the entire amount financed by the plaintiff is paid over to him with interest. Clause 6 of the agreement also provides that the financier viz. the plaintiff will have the first charge over the picture. The plaintiff would claim that despite repeated demands, the first defendant did not repay the money, however, attempted to release the picture, during January 2003. This has forced the plaintiff to come forward with the present suit for recovery of the money due under the agreement and for permanent injunction restraining the defendants 1 and 2 from releasing the picture, named "Shokka Thangam" in India as well as overseas as advertised in the newspapers Dinakaran and Daily Thanthi dated 12.01.2003.

3. The plaintiff would claim that M/s.Asian Capital Consolidates & Holdings Pvt. Ltd., had filed a suit against the 1st defendant in CS No.523 of 2001 for recovery of money and the said suit was dismissed by this Court on 14.08.2001. The appeal in OSA No.295 of 2001 was filed by the plaintiff in CS No.523 of 2001 aggrieved by the said dismissal. Pending the said OSA, the 1st defendant attempted to release the picture without reference to the claim of the present plaintiff by entering into a compromise with the said M/s.Asian Capital

Consolidates & Holdings Pvt. Ltd. Hence, the plaintiff had filed the CMP No.808 of 2003 seeking to implead himself in the said appeal. On 14.01.2003, a compromise was entered into between the plaintiff herein and the 1st defendant, under which the 1st defendant under took to pay a sum of Rs.3,00,00,000/- in full and final settlement of the claim of the plaintiff. As per the said compromise, a sum of Rs.75,00,000/- was to be paid on or before 13.01.2003; a sum of Rs.25,00,000/- was to be paid by 25.01.2003 and the balance was to be paid before 31.03.2003 and it was agreed by the parties that the picture will be released only after settling the entire amount to the plaintiff. The 1st defendant paid a sum of Rs.65,00,000/- on 14.01.2003, but failed to comply with the terms of the compromise entered into in the appeal by paying the remaining amount as per the time line fixed in the compromise.

4. Subsequently, the 1st defendant has filed a suit in CS No.822 of 2005 seeking to cancel the compromise decree in CS No.49 of 2003 to the extent of Rs.1,56,96,984/- and also sought for a consequential declaration declaring that the equitable mortgage created by the plaintiff in favour of the defendant registered on 10.02.2003 over its immovable property as null and void. It also claimed a sum of Rs.71,07,726/- against the plaintiff. The 1st defendant also filed an application in

Application No.3340 of 2006 for setting aside the compromise decree dated 27.01.2003. The compromise decree was eventually set aside by this Court on 31.07.2006, leaving the suit to be decided on merits.

5. The 1st defendant has filed the written statement. Issues were framed by this Court on 04.02.2011 and the matter was referred to the Additional Master. Despite several adjournments before the Additional Master, the first defendant did not appear to prosecute the suit, in fact the plaintiff was examined as P.W.1 in chief on 27.02.2012 and 18.04.2012 and he was partly cross-examined on 04.09.2012. Thereafter, the counsel for the 1st defendant reported no instruction. Hence, the Additional Master referred the suit back to the Court

6. When the matter was listed before the Court, the learned counsel appearing for the 1st defendant in CS No.49 of 2003 and the plaintiff in CS No.822 of 2005 reported that they returned the papers even on 07.05.2016. No other counsel had entered appearance. This Court had set the defendant set ex-parte on 13.12.2017 and the suit filed by the 1st defendant in CS No.49 of 2003, viz. CS No.822 of 2005 was also dismissed for non prosecution on the same day. The plaintiff has been examined as P.W.1, he has filed a proof affidavit and Exhibits

P1 to P39 have been marked. Ex.P1 is the Finance Agreement, Ex.P2 is the Laboratory letter and Ex.P3 is the Confirmation letter. Exs.P6 to P30 are 25 pronotes each for Rs.10,00,000/-. Ex.P31 is the Statement of Account filed by the plaintiff.

7. From the above documents, and the oral evidence of the plaintiff it is seen that the plaintiff has established the borrowing. There is no contra evidence available, to discredit the evidence of P.W.1. Even in the Cross examination nothing has been elicited to show that the case of the plaintiff is not reliable. The execution of the promissory notes by the Director of the 1st defendant is not denied, hence I find that the plaintiff has proved the borrowing. The plaintiff has claimed 36% interest on the ground, it is a Commercial Transaction. Even if the suit transaction is a Commercial Transaction, In Alka Bose v. Parmatma Devi & Ors, reported in 2009 (2) SCC 582, the Hon'ble Supreme Court has held that Courts have discretion to interfere with the contractual rate of interest. However, the plaintiff is entitled to the contractual rate of interest till the date of filing of the suit. The plaintiff has come forward for recovery of the sum of Rs.2,95,00,000/- due as on 13.06.2003.

8. Considering the facts and circumstances of the case, I am of

the considered opinion that the pendente lite interest could be reduced to 12% per annum from the date of suit till date of realization. The plaintiff has filed the suit for recovery of sum of Rs.2,95,00,000/- due on 13.01.2003. On 14.01.2003, the plaintiff has received a sum of Rs.65,00,000/- from the 1st defendant. So the amount due as on 14.01.2003 would be Rs.2,30,00,000/-. Therefore, the plaintiff would be entitled to 12% interest on Rs.2,30,00,000/- from the date of suit till date of realization.

9. In fine the suit is decreed for a sum of Rs.2,30,00,000/- with interest at 12% per annum on the said sum from the date of suit till date of realization with proportionate costs as against the 1st defendant, the suit against the 2nd defendant will stand dismissed. 08.02.2018 jv Index:Yes/No Internet: Yes/No Speaking Order/Non speaking order List of the witnesses examined on the side of the plaintiff :

P.W.1 Jaswant Chand

List of Exhibits marked on the side of the plaintiff: Sl.

No.

Exhibits Date Description of Documents Ex.P1 19.03.2002 The finance agreement Ex.P2 - The laboratory letter Ex.P3 22.03.2003 The confirmation letter Ex.P4 12.01.2013 The paper publication in Dinakaran Ex.P5 19.03.2002 The Pronote Ex.P6 19.03.2002 The another Pronote Ex.P7 19.03.2002 The another Pronote Ex.P8 19.03.2002 The another Pronote Ex.P9 19.03.2002 The another Pronote Ex.P10 19.03.2002 The another Pronote Ex.P11 19.03.2002 The another Pronote Ex.P12 19.03.2002 The another Pronote Ex.P13 19.03.2002 The another Pronote Ex.P14 19.03.2002 The another Pronote Ex.P15 27.09.2002 The another Pronote Ex.P16 27.09.2002 The another Pronote Ex.P17 27.09.2002 The another Pronote Ex.P18 27.09.2002 The another Pronote Ex.P19 27.09.2002 The another Pronote Ex.P20 06.11.2002 The another Pronote Ex.P21 08.11.2002 The another Pronote Ex.P22 08.11.

2002 The another Pronote Ex.P23 09.11.2002 The another Pronote Ex.P24 13.11.2002 The another Pronote Ex.P25 19.12.2002 The another Pronote Ex.P26 19.12.2002 The another Pronote Ex.P27 06.01.2013 The another Pronote Ex.P28 06.01.2013 The another Pronote Ex.P29 07.01.2013 The another Pronote Ex.P30 09.01.

Sl.

No.

Exhibits Date Description of Documents Ex.P31 - The Statement of account Ex.P32 14.07.2004 Memorandum of Understanding Ex.P33 22.07.2004 The photocopy of the letter Ex.P34 16.08.2004 The letter Ex.P35 - The copy of affidavit alongwith docket order in IA.8820/2004 Ex.P36 23.08.2004 The office copy of the legal notice with postal acknowledgement cards (6 Nos) Ex.P37 - The Photocopy of MOU Ex.P38 21.12.2005 The letter Ex.P39 21.12.2005 The letter List of the witnesses examined on the side of the defendants: Nil List of Exhibits marked on the side of the defendants: Sl.

No.

Exhibits Date Description of Documents Ex.D1 series 17.01.2005 The summon to witness the first defendant dated 17.01.2005 alongwith letter dated 17.01.2005 from Income Tax Depart.

08.02.2018 jv

R.SUBRAMANIAN, J.

jv To The Sub Assistant Registrar, Original Side, High Court, Madras.

C.S.No.49 of 2003 08.02.2018