Kerala High Court
Vivek Viswanathan Nair vs Easy Fly Productions on 4 June, 2025
O.P.(C) No. 994 of 2025
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2025:KER:39396
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K. NATARAJAN
WEDNESDAY, THE 4TH DAY OF JUNE 2025 / 14TH JYAISHTA, 1947
OP(C) NO. 994 OF 2025
AGAINST THE CA NO.3 OF 2025 OF DISTRICT COURT &
SESSIONS COURT, ERNAKULAM ARISING OUT OF THE ORDER DATED
18.01.2025 IN IA NO.1/2025 IN CS NO.6 OF 2025 OF ASSISTANT
SESSIONS COURT/PRINCIPAL SUB COURT/COMMERCIAL COURT,
ERNAKULAM
PETITIONERS/APPELLANTS/PETITIONER/PLAINTIFF:
1 VIVEK VISWANATHAN NAIR
AGED 42 YEARS
S/O VISWANATHAN NAIR, VISWAM VEETIL, PILAPUZHA,
HARIPPAD, ALAPUZHA, PIN - 690 514.
2 PRIYA VIVEK
AGED 41 YEARS
W/O VIVEK VISWANATHAN NAIR, VISWAM VEETIL,
PILAPUZHA, HARIPPAD, ALAPUZHA, PIN - 690 514.
BY ADVS.
SHRI.PRAVEEN K. JOY
SRI.T.A.JOY
SRI.E.S.SANEEJ
SRI.M.P.UNNIKRISHNAN
SRI.N.ABHILASH
SHRI.ALBIN VARGHESE
SMT.FATHIMA SHALU S.
SMT.ABISHA.E.R
SMT.MEGHA G.
SMT.LAKSHMI K.S.
SHRI.ABHIJITH V. PRASAD
O.P.(C) No. 994 of 2025
2
2025:KER:39396
RESPONDENTS/RESPODNENTS/RESPONDENTS/DEFENDANTS:
1 EASY FLY PRODUCTIONS
REG NO. 5338/2021, PARTNERSHIP FIRM, HAVING
ADDRESS AT TC. 81/1944-3, SS KOVIL ROAD,
THAMPANOOR, THIRUVANANTHAPURAM, PIN - 695 001,
REP BY ITS MANAGING PARTNER THOUFEEK RASHEED.
2 THOUFEEK RASHEED
AGED 39 YEARS
S/O BEENA RASHEED, PARTNER, EASY FLY PRODUCTIONS,
RESIDING AT, TC 48/985,PALACE MANZIL,
AMBALATHARA, POONTHURA. P.O, THIRUVANANTHAPURAM,
PIN - 695 026.
3 AJITHKUMAR VASUDEVAN
AGED 63 YEARS
PARTNER, EASY FLY PRODUCTIONS, S/O VASUDEVAN
NARAYANAN, RESIDING AT 2B, MUTHOOT CAPITAL VIEW
APARTMENTS, NANDAVANAM, THIRUVANANTHAPURAM,
PIN - 695 033.
4 M/S NAISAM SALAM PRODUCTIONS
REP BY, NAISAM SALAM, S/O ABDUL SALAM, AGED 43
YEARS, P.K HOUSE, PUTHUR , VENJARAMOODU.P.O,
THIRUVANANTHAPURAM, PIN - 695 607.
BY ADVS.
SHRI.SREEHARI INDUKALADHARAN
SHRI.T.SUKESH ROY
SMT.MEERA MENON
SHRI.SANTHOSH MATHEW (SR.)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
04.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No. 994 of 2025
3
2025:KER:39396
JUDGMENT
This original petition is filed by the petitioners for issuing a direction to the Commercial Appellate Court (Principal District Court) at Ernakulam to take up and consider Ext.P7 appeal as well as Ext.P8 Interlocutory Application pending on the file of the Commercial appellate Court and direct the repondents to furnish security for the entire amount before the release of movie, namely "ABHYANTHARA KUTTAVALI" and also staying the release of the said movie till furnishing the bank security.
2. Heard the arguments of the learned counsel for the petitioners and learned counsel for the respondent No.2 who is the Managing Partner for the 1 st respondent and the the 4th respondent. However, the 3rd respondent who is said to be a Partner for the 1st respondent, has not appeared, there is no need to issue fresh notice to the respondent No.3, who is one of the partner of the 1 st respondent and the 2nd respondent is Managing Partner who represent the O.P.(C) No. 994 of 2025 4 2025:KER:39396 firm, respondent No.1. Hence, issuing notice to the respondent No. 3 is dispensed with and there of, service is complete.
3. The learned counsel for the petitioner has contended that the petitioner filed petition as against the respondent in CS No.6 of 2025 before the Commercial Court, Ernakulam. The petitioner is also said to be filed I.A. No.1 of 25 in CS No.6 of 2025 under Order 39 Rule 1 of the Code of Civil Procedure, 1908 which came to be dismissed by the Commercial Court. Thereafter, the petitioner approached the Commercial Appellate Court, that is Principal District Court, Ernakulam by filing Commercial appeal No.3/2025 and also filed an IA No.1 of 2025, staying the impugned order passed by the trial Court and restricting the respondent from releasing the said film and also for seeking remedy for executing the bank security for Rs.1.55 Crores said to be paid by the petitioner to the respondent Nos.1 to 3. The Commercial Appellate Court O.P.(C) No. 994 of 2025 5 2025:KER:39396 said to be adjourned the matter without considering the same. Hence, the petitioner approached this Court.
4. While hearing the arguments on interim prayer, this Court by order dated 07.04.2025 directed the respondents to furnish security for an amount of Rs.1.55 Crores and permitted to release and distribute the movie by name "ABHYANTHARA KUTTAVALI".
5. Subsequent to the passing of the order, the respondent No.4 filed IA for vacating the interim order. The counsel for the petitioner has contended that in spite of the executing the agreement with the petitioners, the respondent No.1 to 3 said to be sold the right and title of the said film to the respondent No.4 without the knowledge of the petitioners and borrowed Rs.1.55 Crores. Therefore, if the film is released, the petitioners are unable to recover the amount from the respondents 1 to 3. Therefore, filed the suit before the Commercial Court and filed an application which came to be dismissed. Accordingly, filed O.P.(C) No. 994 of 2025 6 2025:KER:39396 appeal in the appellate Court along with an IA which is pending consideration.
6. The learned counsel for the 4th respondent has strenuously opposed the petition, contending that the order of this Court passed directing the respondent No.4 for furnishing the security for the said amount Rs.1.55 Crores. It is contended that the order passed by this court is based on the another order of this Court in FAO No.17/25, wherein this Court directed for furnishing security of the plaint claim before the trial Court. It is submitted that the said order in FAO NO.17/2025 directing the respondent to furnish bank security has been challenged before the Hon'ble Supreme Court that the said order in FAO No.17/25 dated 20.03.2025 has been stayed. Therefore, it is contended that now the present interim order is derseved to be vacated.
6. The learned counsel for the 4th respondent also contended that there is an agreement between respondent O.P.(C) No. 994 of 2025 7 2025:KER:39396 No.1 to 3 and 4th respondent and the title and ownership of the film "ABHYANTHARA KUTTAVALI" has been sold to the 4th respondent for Rs.50 Lakhs. Thereafter, it was registered with film chamber and film actually shot by the respondent spending huge Crores of money, and now the film is ready for releasing at that time this Court staying the film and order for furnishing security of Rs.1.55 Crores. It is contended by the respondent counsel that even as per the agreement entered between the petitioner respondent Nos.1 to 3 and respondent No.4 as per Ext.P17, condition that the amount shall be payable by the respondent Nos.1 to 3 after three months of the release of the film. Therefore, the question of furnishing security by the respondents does not arises and as per the agreement between the respondent Nos.1 to 3 and respondent No.4 if any liability to the assigner that is respondent Nos.1 to 3 will not be binding on the respondent No.4. Therefore, on O.P.(C) No. 994 of 2025 8 2025:KER:39396 this ground the respondent No.4 prayed for vacating the order and also dismiss the petition.
7. The learned counsel for the respondents also submits that the petitioners approached this court and obtained a interim order by suppression the facts. The first appellate Court adjourned the matter. But, in fact the very petitioners advanced petition on 01.04.25 and by keeping that date and suppressing the facts, the petitioners approached this Court and obtained order and not pressing the said application, which was came before the first appellate Court on 08.04.2025. It is also submitted by the counsel for respondent No.4 that earlier two dates of hearing ie. 04.02.25 and 27.02.2025 has been suppressed and the petitioner by misrepresentation and snatched the order by suppression of facts. Hence, prayed for vacating the interim order and dismissing the petition.
8. The learned counsel for the 2 nd respondent also submits that borrowed money by the respondent Nos. 1 to O.P.(C) No. 994 of 2025 9 2025:KER:39396 3 and some amount paid by the very 2nd respondent to the petitioners and there was some cheque cases filed by the petitioners and there was understanding between the petitioners and respondent No.2 on payment of the said amount and Rs.2 Lakhs said to be paid by the 2 nd respondent to the petitioners and as per the order of the trial Court, Rs.31 Lakhs paid by the respondent No.2 to the petitioners. These payments have been suppressed by the petitioners and snatched the order from this Court, hence prayed for dismissing the petition.
9. Having heard the arguments and perused the records. On perusal of the records, it is not in dispute the petitioner said to be entered agreement between the respondent Nos. 1 to 3 for having borrowing amount of Rs.1.55 Crores and admittedly the said amount is not paid at a lump sum, but it was paid to various persons like cine actor, production manager, director etc. which is revealed from the very agreement filed by the petitioners. O.P.(C) No. 994 of 2025 10
2025:KER:39396 Subsequently, the respondent Nos.1 to 3 said to be entered an agreement with the respondent No.4 and said to be sold the very title and ownership of the said film to the respondent No.4 by receiving Rs.50 Lakhs and as per that agreement between the respondent Nos. 1 to 3 and the respondent No.4 said to be shot the film by spending huge Crores of money. However, the petitioners approached the Commercial Court for recovery of the said money Rs.1.55 Crores by filing CS No.6/25 and an IA also filed which came to be dismissed by the trial Court, which was challenged before the Commercial Appellate Court in CA No.3/2025. The petitioner also filed an another Ext.P8 IA, where the Commercial Court was said to be not passed any order and adjourned the matter. Therefore, the petitioner rushed to this Court for issuing direction to the Commercial Court to dispose of the appeal Ext.P7 and IA Ext.P8.
10. Accordingly, this Court after hearing arguments, passed an interim order on 07.04.2025 by directing the O.P.(C) No. 994 of 2025 11 2025:KER:39396 respondents to furnish security for Rs.1.55 Crores and permitted to release the film. Admittedly, the petitioners prayed before the Court for a direction to the Commercial Appellate Court where the commercial appellate court, is said to be adjourned the matter, regarding the direction matter of the Hon'ble Supreme Court in a criminal case. On taking the matter on day today basis, however, the respondents counsel submits that the Commercial Appellate Court also taking the other matters along with the direction matter of the supreme Court. It cannot be said the Commercial Appellate Court is not taking all other matters except the direction matter which is criminal case as directed by the Hon'ble Supreme Court. The respondents also brought to the notice, that the Commercial Court also hearing the other matters and passing the orders. If at all the Commercial Appellate Court is not able to hear the matter, it can transfer the same to the additional appellate Courts which is also working in Ernakulam. Therefore, the O.P.(C) No. 994 of 2025 12 2025:KER:39396 contention of the petitioners counsel that the Commercial Appellate Court not taking the matter for hearing is not acceptable. However, in view of the pending disputes the Commercial Appellate Court is required to be decide including the IA as well as the commercial appeal filed before it without causing delay. Therefore, it is necessary to issue direction to the Commercial Appellate Court for speedy disposal of the IA pending in the Commercial Appellate Court.
11. In respect of the interim order passed by this Court, for vacating the order, and as the appeal filed by the counsel for respondent No.4, it is clearly stated though the matter has been adjourned to 11.06.2025, but the very petitioner advanced the matter on 01.04.2025 and the Commercial Appellate Court adjourned the matter for hearing the IA on 08.04.2025. In the meanwhile, admittedly, the petitioner approached this Court by filing this OP on 04.04.2025 and moved before this Court on O.P.(C) No. 994 of 2025 13 2025:KER:39396 07.04.2025 and obtained the interim order from this Court for seeking security. Admittedly, the petitioner suppressed the fact that the Commercial Court took up the matter and admitted the appeal on 04.02.2025 and adjourned to 11.02.2025 & 27.02.2025. Thereafter, once again for issuing notice it was adjourned to March 2025. These steps were not taken. But, in the synopsis of the petition and the grounds made in the petition by the petitioner not stated these two dates and advancing the case. That apart, when the petitioner himself advanced the matter before the first appellate Court on 01.04.2025 and the first appellate Court posted the matter for hearing on 08.04.2025. The petitioner rushed to this Court for seeking direction and obtaining the order by filing the petition on 04.04.2025 and obtained the interim order on 07.04.2025. The counsel for the respondent rightly contended the petitioner suppressed the facts of hearing date and obtained the order and in support of his case he has laid upon the judgment of the O.P.(C) No. 994 of 2025 14 2025:KER:39396 Division Bench Order 2023 SCC online Ker 1669 in the case of Suhail K.M. & Anr. Vs. Peter Shyju, wherein the Division Bench of this Court has held at para 9 as under:-
"In case there is any delay in the disposal of I.A. No. 1 of 2023, the petitioners-landlords can approach the Rent Control Court with an application for time-bound disposal of that interlocutory application, in view of the direction contained in the decision of this Court in Abdul Razak P.M., [2022 (4) KHC 260]. When the object of superintendence under Article 227 of the Constitution of India is to maintain the orderly functioning of subordinate courts, as well as statutory or quasi-judicial tribunals, in such a way as it does not bring it into any disrepute, the petitioners-landlords, who have filed I.A. No. 1 of 2023 before the Rent Control Court only on 03.03.2023, cannot rush to this Court by filing an original petition on 08.03.2023, invoking the supervisory jurisdiction under Article 227, seeking time-bound consideration of that interlocutory application.
11. In view of the pendency of case before the first appellate Court, though it is adjourned to 11.06.2025, but the very petitioner advanced the matter on 01.04.2025. subsequently, the petitioner advanced the matter on 01.04.2025 and matter has been adjourned to 08.04.2025 O.P.(C) No. 994 of 2025 15 2025:KER:39396 and for arguing the matter and even the first appellate Court not heard and considered the matter and passed order, but hurriedly approached this Court and obtained the order that too for relying upon the some other order passed in FAO No.17/25 dated 23.03.2025 which was already stayed by the Hon'ble Supreme Court in the SLP. Such being the case, obtaining the order based upon the order in FAO 17/25 is not survived.
12. Apart from that, the petitioner suppressed the material fact and rushed to this Court and grabbed the order, is nothing but abuse of process of law as held by the Hon'ble Division Bench in the judgment stated supra. Therefore, the order passed by this Court is deserved to be vacated. That apart, while obtaining the order did not mention about the order passed by the trial Court for having made repayment of Rs.31 Lakhs and also subsequent development between the respondent No.2 and petitioner for filing the cheque cases are not mentioned O.P.(C) No. 994 of 2025 16 2025:KER:39396 before this Court while passing the order. Such being the case, the interim order passed by this Court directing the respondent, furnishing the security have to be vacated. That apart the very agreement between the respondent Nos.1 to 3 and respondent No.4 for having sold the film to the respondent No.4 and the 4th respondent is said to be purchased the title and thereafter produced the film. Such being the case, all these disputes shall be adjudicated by the first appellate Court while considering the IA and appeal which was under challenge, as there is no order passed by the trial Court or disputed the application filed by the petitioner.
12. With this observation, I am of the view that the interim orders passed in the petition is said to be vacated. However, a direction is to be issued to the first appellate Court to dispose of IA in accordance with law.
13. Accordingly, passed the following orders:- O.P.(C) No. 994 of 2025 17
2025:KER:39396 i. The original petition is allowed in part. ii.The interim order passed by this Court on 7.4.25, by directing the respondents to furnish bank security is hereby vacated.
iii.The Commercial Appellate Court is directed to dispose of Ext.P8 IA as well as the Ext.P7 appeal under challenge as early as possible, in accordance with law, by keeping the observation and the agreements placed by the parties.
iv.Any observations made by this Court should not be influenced by the commercial Court.
Sd/-
K. NATARAJAN JUDGE S.M.K. O.P.(C) No. 994 of 2025 18 2025:KER:39396 APPENDIX OF OP(C) 994/2025 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN CS NO.
06/2025 OF COMMERCIAL COURT, ERNAKULAM DATED 27.12.2024 Exhibit P2 TRUE COPY OF THE IA NO.01/2025 IN CS NO.06/2025 ON THE FILES OF COMMERCIAL COURT, ERNAKULAM DATED 27.12.2024 Exhibit P3 TRUE COPY OF THE ORDER IN IA NO.863/2024 IN UNNUMBERED CS OF 2024 OF VACATION COURT DATED 01.01.2025 Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN IA NO.01/2025 IN CS NO.06/2025 DATED 15.01.2025 Exhibit P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT IN IA NO.01/2025 IN CS NO.06/2025 DATED 15.01.2025 Exhibit P6 TRUE COPY OF THE ORDER IN IA NO.01/2025 IN CS NO.06/2025 DATED 18.01.2025 Exhibit P7 TRUE COPY OF THE CA NO.03/2025 DATED 23.01.2025 ON THE FILES OF COMMERCIAL APPELLATE COURT (PRINCIPAL DISTRICT COURT) AT ERNAKULAM Exhibit P8 TRUE COPY OF THE IA NO.01/2025 IN CA NO.03/2025 DATED 03.02.2025 ON THE FILES OF COMMERCIAL APPELLATE COURT(PRINCIPAL DISTRICT COURT) Exhibit P9 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN IA NO.01/2025 IN CA NO.03/2025 DATED 20.02.2025 Exhibit P10 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT IN IA NO.01/2025 IN CA NO.03/2025 DATED 17.02.2025 Exhibit P11 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN IA O.P.(C) No. 994 of 2025 19 2025:KER:39396 NO.01/2025 IN CA NO.03/2025 DATED 03.03.2025 Exhibit P12 TRUE COPY OF THE E-COURT STATUS OF CA NO.03/2025 DATED 04.03.2025 Exhibit P13 TRUE COPY OF THE ADVANCEMENT PETITION AS IA NO.03/2025 DATED 01.04.2025 BEFORE THE COMMERCIAL APPELLATE COURT (PRINCIPAL DISTRICT COURT) AT ERNAKULAM Exhibit P14 TRUE COPY OF THE INTERIM ORDER DATED 20.03.2025 IN FAO NO.17/2025 RESPONDENT EXHIBITS Exhibit R4(A) True copy of the order dated 02.05.2025 of the Hon ble Supreme Court in SLP (C) No. 10435 of 2025 Exhibit R4(B) True copy of the Daily Statuses dated 04.02.2025, 27.02.2025, and 004.03.2025 in C.A. No. 3 of 2025 before the Honble Commercial Appellate Court, Ernakulam (obtained from the E courts website) Exhibit R4(C) True copy of the Case Details of C.A. No. 3 of 2025 before the Hon ble Commercial Appellate Court, Ernakulam (obtained from the E-Courts website) PETITIONER EXHIBITS Exhibit P15 TRUE COPY OF THE DEED OF PARTNERSHIP DATED 16.12.2021 Exhibit P16 TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 18.12.2021 Exhibit P17 TRUE COPY OF THE FINANCE SUPPORT AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT DATED 13.11.2023 Exhibit P18 TRUE COPY OF THE INTERIM ORDER GRANTED BY THIS HON'BLE COURT IN FAVOUR OF THE PETITIONER DATED 07.04.2025 Exhibit P19 TRUE COPY OF THE RELEVANT PAGE OF THE CASE STATUS OF SUPREME COURT OF INDIA FOR CAVEAT NO.5872/2025 DATED 21.04.2025 O.P.(C) No. 994 of 2025 20 2025:KER:39396 Exhibit P20 TRUE COPY OF THE RELEASE POSTER OF THE MOVIE DATED 17.04.2025 Exhibit P21 TRUE COPY OF THE CONTEMPT NOTICE DATED 23.04.2025 ISSUED TO RESPONDENTS Exhibit P22 TRUE COPY OF THE POSTAL RECEIPTS DATED 23.04.2025 Exhibit P23 TRUE COPY OF THE CONSENT LETTER DATED 19.12.2024 EXECUTED BY THE 3RD RESPONDENT WITH ENGLISH TRANSLATION