Bombay High Court
Pentagram Films Pvt. Ltd vs Arjun Rampal And 3 Ors on 31 March, 2021
Bench: K.R. Sriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL NOTICE OF MOTION NO.719 OF 2017
IN
COMMERCIAL IP SUIT NO.795 OF 2017
Pentagram Films Private Limited ....Applicant/Plaintiff
V/s.
Arjun Rampal and Ors. ....Defendants
----
Mr. Aditya Pratap for plaintiff.
Mr. Akash Rebello i/b. SSP Legal for defendant nos.1 to 3.
----
CORAM : K.R.SHRIRAM, J.
DATED : 31st MARCH 2021
P.C. :
1 Mr. Pratap states that today he is pressing for prayer clauses -
(a), (b), (e), (h) and (i) of the notice of motion and is not pressing for the
other prayers. Prayer clauses - (a), (b), (e), (h) and (i) read as under :
(a) That pending the final hearing and disposal of the
suit the defendant no.1, 2 and 3 singly or jointly, be
ordered to deposit to this Hon'ble Court a sum of
Rs.1,50,00,000/- (Rs. One Crore and Fifty Lakhs only);
(b) That pending the final hearing and disposal of the
suit, all the incomes which have accrued and will accrue
at any time in future in relation to the film from all
sources including Theatrical, Television and Digital
platforms, be ordered to be attached and to be disposed
of save with the orders of this Hon'ble Court;
(e) That pending the hearing and final disposal of the
present suit, this Hon'ble Court be pleased to attach any
payments from the licensing of the television rights, that
may have been received by defendant nos.1, 2 and 3
and/or 4 or the same be placed under the custody of the
Court Receiver;
Gauri Gaekwad
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(h) That pending the hearing and final disposal of the
present suit, this Hon'ble Court be pleased to attach any
payments from the licensing of the digital video on
demand rights, that may have been received by
defendant nos.1, 2 and 3 and/or 4 or the same be placed
under the custody of the Court Receiver;
(i) That pending the hearing and final disposal of the
present suit, this Hon'ble Court be pleased to order the
defendant nos.1, 2 and 3 and 4 singly or jointly be
ordered to produce statement all incomes received and/
or receivable from the exploitation of the film in any/all
manner including the licensing agreements already
executed for any/all mediums.
Mr. Pratap also agreed that prayer clauses - (a), (b), (e) and (h)
are akin seeking attachment before judgment.
2 Attachment of property before judgment is for the primary
objective of preventing defendants attempt to defeat the realisation of
decree that will be passed in favour of plaintiff. The power under Order 38
Rule 5 of the Code of Civil Procedure is drastic and extraordinary power and
cannot be exercised mechanically or merely for the asking. It should be used
sparingly and strictly in accordance with the rules and an unsecured debt
cannot be converted into a secured debt unless plaintiff prima facie shows
that the claim is bonafide and valid and also satisfy the Court that defendant
is about to remove or dispose of the whole or part of his property, with the
intention of obstructing or delaying the execution of any decree that may be
passed against him.
3 I repeatedly asked Mr. Pratap to show the averments in the
plaint where it is alleged by plaintiff that defendants have disposed of or
Gauri Gaekwad
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disposing their assets or attempting to defeat the right of plaintiff or that
defendants, by the time the suit is decreed, will be in so much difficulty that
even if plaintiff succeeds, it will not recover any amount from defendants.
Mr. Pratap was unable to show and Mr. Rebello stated that there are no such
averments in the plaint.
Admittedly, no application for ad-interim also has been made.
No further affidavit also is filed to show as to how the situation
has changed from the date on which the suit and notice of motion were
lodged and today that plaintiff is entitled to the interim reliefs as prayed for.
As regards prayer clause - (i), as that is also linked to the reliefs
prayed for today, and since no case has been made out for grant of prayer
clauses - (a), (b), (e) and (h), the question of granting prayer clause - (i)
also would not arise.
4 In the circumstances, notice of motion is dismissed. It is open to
plaintiff to lead evidence and prove its claim against defendants.
5 Mr. Pratap is unable to answer whether writ of summons has
been served on defendants. Mr. Rebello for want of instructions is also
unable to answer whether writ of summons has been served or not or
whether the written statement has been filed. I do not find the written
statement in the records and proceedings. Mr. Pratap again is unable to state
whether he has been served with copy of any written statement.
Gauri Gaekwad
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6 The Court, without assistance from any of the counsel, went
through the order sheets and found an order dated 15 th July 2019 which
reads as under :
COMMERCIAL CHAMBER SUMMONS NO.182 OF 2018
1. Plaintiff has relied upon certain documents of which inspection
is being sought by defendants. I see no prejudice if plaintiff is
directed to give inspection of the documents relied upon in the
plaint as well as in the notice of motion.
2. I am not for a moment saying that plaintiff is deliberately not
giving inspection but the fact is it will be in plaintiff's interest if
inspection is given so that the suit can proceed expeditiously.
3. In the circumstances, plaintiff is directed to give inspection
within two weeks from today. Inspection shall be given of the
original documents and if documents are not available, then
plaintiff will state who has those documents. If inspection of
photocopy is given, then plaintiff will explain why inspection of
original documents cannot be given. Within one week of taking
inspection, defendants shall also give their statement of admission
and denial with reasons for denial.
4. Mr. Kantawala and Mr. Rebello state that writ of summons has
not been served. The counsel for plaintiff is unable to answer
because he states that he has not taken instructions and he has to
check the records. I would have expected plaintiff to be ready with
these answers. Mr. Kantawala and Mr. Rebello waive service of the
writ of summons.
5. Written statement to be filed and copy served within 30 days of
taking inspection of the documents from plaintiff.
6. Chamber summons accordingly stands disposed.
7. Suit to be listed for directions on 30th August 2019.
7 I have to express my displeasure for the lack of assistance from
the advocates appearing for plaintiff and defendant nos.1, 2 and 3. It will
not be out of place to expect counsel to read what are the orders passed
earlier and be ready in all respects.
Gauri Gaekwad
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8 In the circumstances, since no written statement has been filed
and this being a commercial suit, defendant nos.1, 2 and 3 have forfeited
their right to file any written statement.
As regards defendant no.4, it does not appear that the writ of
summons has been served. Therefore, the suit stands dismissed for want of
prosecution against defendant no.4.
Suit be listed for directions on 9th June 2021.
(K.R. SHRIRAM, J.)
Gauri Gaekwad
