Shri Rishi Raj vs Shri Ashok Ji Lall
2011 Latest Caselaw 2111 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 20.4.2011

+            RSA No.313/2006 & CM No.13308/2006

SHRI RISHI RAJ                                 ...........Appellant
                         Through:    Mr.Harish Malhotra, Sr.Adv.
                                     with Mr.Rajender Aggarwal,
                                     Advocate.
               Versus
SHRI ASHOK JI LALL                               ..........Respondent.
                    Through:         None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has been filed against the impugned judgment

and decree dated 14.8.2006 which had endorsed the finding of the

trial judge dated 24.12.2004 whereby the suit filed by the plaintiff

Rishi Raj seeking specific performance of an agreement dated

07.7.1992 entered into between the plaintiff and defendant no.1

has been dismissed; his prayer for permanent injunction had also

been denied.

2. Plaintiff was engaged in the business of distribution,

exhibition and exploitation of cinematographic films; he had

negative and telecasting rights of various pictures under the name

and style of Raj Rishi Films which was his sole proprietorship

concern. Defendant no.1 was the producer of film LAL CHUNARIA

under the banner of Tipu Films. Vide agreement dated 07.7.1992

entered into between the plaintiff and defendant no.1, defendant

no.1 had agreed to transfer the negative rights of U-matics of the

said picture for a sum of Rs.85,000/- to the plaintiff. Rs.5,000/- was

to be paid on signing and the balance sum of Rs.80,000/- was to be

paid on the transfer of the negative rights and handing over of

U-matics of the said film on the terms and conditions contained

therein. Plaintiff had made the initial payment of Rs.5000/-. On

request of the defendant, plaintiff made further payments of

Rs.50,000/-, in instalments to the defendant no.1. Plaintiff learnt

that the defendant no.1 had also signed a similar agreement with

Bharat Shah; on his own efforts plaintiff was able to persuade

Bharat Shah to cancel the said agreement with the defendant no.1;

an amount of Rs.7500/- was paid by plaintiff to Bharat Shah on this

account on behalf of the defendant; this sum was also included in

the sum of Rs.50,000/- which had been paid by plaintiff to

defendant no.1. It is stated that the defendant no.1 had failed to

perform his part of the agreement; plaintiff was always willing to

do so; suit for specific performance was accordingly filed.

3. Defendant had been served and appearance has been put in

but written statement was not filed.

4. Plaintiff has examined himself as the sole witness. He had

proved the agreement dated 07.7.1992 as Ex.PW-1/1. Trial judge

on the examination of the said document and relying upon the

clause 3 of the same held that the plaintiff had failed to make the

balance payment of Rs.80,000/-; in this view of the matter, he could

not claim the transfer of the negative and U-matic rights in his

favour; suit of the plaintiff was dismissed.

5. In appeal the judgment of the trial court was affirmed and it

was noted that no effort was made by the plaintiff to get the

agreement executed; he had not showed his willingness to perform

his part of the contract. The judgment of the trial court was upheld.

6. This is a second appeal. It has been admitted and on

01.10.2010 the following substantial question of law has been

formulated:

"Whether the impugned judgment dated 14.08.2006 dismissing the suit of the plaintiff had misconstrued the agreement dated 07.07.1992 thereby amounting to a perversity? If so, its effect?"

7. On behalf of the appellant, it has been urged that the

document Ex.PW-1/1 dated 07.7.1992 has been misinterpreted and

misconstrued. It is submitted that Clause 3 of the agreement, on

which reliance has been placed upon by the trial court, in fact, pre-

supposes a simultaneous arrangement i.e. giving of balance sum of

Rs.80,000/- by the plaintiff to the defendant no.1 and defendant

no.1 in turn would hand over U-matics to the plaintiff; this clause

cannot be read as if the payment has to be made first and then the

negatives and U-matics of the film are to be handed over to the

plaintiff. This document has been misinterpreted. Attention has

also been drawn to the various communications including the legal

notice dated 14.8.1995 (Ex.PW-1/11) sent by the plaintiff to the

defendant no.1 wherein it is stated that he is ready to make the

balance payment to the defendant. It is pointed out that the

finding in the impugned judgment that the plaintiff had made no

such effort on his part is a mis-appreciation of the evidence; this

amounts to a perversity and has raised a substantial question of

law.

8. None has appeared for the respondent in spite of service.

9. Record has been perused.

10. There were two defendants. In the prayer, the plaintiff has

sought a decree against defendant no.1 of specific performance

directing him to transfer the negative rights and hand over the

U-matics of picture LAL CHUNARIA lying with defendant no.2 in

his favour; direction has also been sought against defendant no.2

to transfer the negatives in favour of the plaintiff. Admittedly the

plaintiff has no privity of contract with defendant no.2; on a

specific query on this point learned counsel for the appellant has

conceded that he is not pressing any prayer against defendant

no.2.

11. Agreement Ex.PW-1/1 has been scrutinized in detail by both

the two fact finding courts below and in the view of this Court the

findings returned do not in any manner call for any interference.

The document has to be read as a whole. The mode of payment is

contained in the first para of the agreeemt. Rs.5000/- had been

paid at the time of signing of the agreement; Rs.80,000/- was to be

paid at the time of transfer of the negative rights and handing over

of U-matics of the said film. Sub para/ Clause 3 of Ex. PW 1/1 has

noted as follows:

"On making the total payment of Rs.85000/= as stipulated above, the transfer of the Negative Rights which include Picture and Sound Negative which also includes the transfer of all such rights which include in form of the PERFORMING copy rights, in its story, songs and music etc. of the Rights and also any sort of royalty from ALL INDIA RADIO music company all any other such units in future period."

Clause 6 reads as under:

"The FIRST PARTY will not have any TITLE, RIGHT interest or claim on the said picture when negative rights which includes picture and sound negative is transferred in Name of 2nd party but after making the full payment to the FIRST PATY as mentioned above whereas only 2nd party or its agents or sub- agents will enjoy all the benefits profits and realization from the said picture as soon as negative rights which includes picture and sound negative is transfer in the name of 2nd Party when full

payment is made."

12. Perusal of the aforenoted clauses as also the body of the

agreement clearly shows that only after the complete payment of

Rs.85,000/- is made by the plaintiff to the defendant; would the

defendant transfer the negative rights of the film LAL CHUNARIA

in his favour. It is only after making the full payment to the

defendant would the plaintiff enjoy the benefits and profits from

the said picture therein; Clauses 3 and 6 read together clearly

decipher this intent. This had rightly been noted by the courts

below.

13. Mode of payment was admittedly the essence of this

agreement. Admittedly till date only Rs.50,000/- has been paid by

the plaintiff. The question of the defendant transferring the

negative rights and handing over the U-matics of the film to the

plaintiff did not arise.

14. Agreement is dated 07.7.1992. The plaintiff has proved his

first letter dated 24.8.1993 to the defendant stating that he is

ready to make the payment to the defendant; this documents is

Ex.PW-1/12; it has been sent by ordinary post; neither the UPC nor

the AD card has been proved; thereafter various communications

Ex.PW-1/13, Ex.PW-1/14, Ex. PW-1/15 and Ex.PW-1/16 have been

sent which are almost are verbatim calling upon the defendant to

receive the balance payment. Legal notice dated 14.8.1995 has

been proved as Ex.PW-/11.

15. The impugned judgment, apart from the scrutiny of

Ex.PW-1/1 had noted that in all these communications plaintiff had

never expressed his willingness to pay balance sum of Rs.35,000/-

(which even as per his own admission was due and payable by him)

to the defendant; all these documents refer to the balance payment

in terms of the agreement; in none of these communications has

the plaintiff averred (as has been stated in the plaint) that a sum of

Rs.50,000/- has already been paid and the balance sum now

remaining is Rs.35,000/-. Trial judge had also correctly noted that

Ex.PW-1/9 and Ex-PW-1/10, which was the cancellation of an

agreement between Bharat Shah and defendant no.1 had not been

proved in accordance with law; neither Ashok Ji Lall nor Bharat

Shah had come into witness box to prove these documents; same

was the fate of Ex.PW-1/10 which was a unilateral declaration by

defendant no.1 Ashok Ji Lall. This was also proved through the

testimony of PW-1. It was also not the case of the plaintiff that

Ex.PW-1/10 addressed to the plaintiff and was given to him. These

two documents had also not been proved in accordance with law.

Suit of the plaintiff was rightly dismissed.

16. The impugned judgment suffers from no perversity. What is

perversity has been explained by the courts time and again. For a

second appeal Court to interfere in the findings of the two fact

finding courts below it must be shown that the impugned judgment

is based either on no evidence or what is not right, turned the

wrong way, distorted from right, deviating from what is right,

proper, correct etc. This is not one such case.

17. Substantial question of law is answered in favour of the

respondent and against the appellant. There is no merit in the

appeal. The appeal as also the pending application is dismissed.

INDERMEET KAUR, J.

APRIL 20, 2011 nandan