Delhi High Court
Rishi Raj vs S.A. Luthria on 18 August, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 460/2006
% 18th August, 2015
RISHI RAJ ..... Plaintiff
Through: Mr. Harish Malhotra, Sr. Adv. along
with Mr. R.K. Modi, Advocate
versus
S.A. LUTHRIA ..... Defendant
Through: Mr. Jatin Zaveri, Advocate with
Mr. Neel Kamal Mishra and
Mr.Nipun Goel, Advocates
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1.
Plaintiff, Sh. Rishi Raj has filed this suit for recovery of Rs.28
lacs against the defendant, Sh. S.A. Luthria. Out of the sum of Rs.28 lacs,
the principal amount is Rs.25 lacs and the amount of Rs.3 lacs is interest @
12% p.a. from 17.3.2005 till the date of filing of the suit. Plaintiff claims
recovery of this amount on account of the amount of Rs.25 lacs being due to
the plaintiff from the defendant as the net expenditure incurred by the
plaintiff with respect to the production and distribution of the film
'Lashkaara' (name of film subsequently changed to 'Hatya - The Murder'),
(hereinafter referred to as the 'subject film'). The defendant has not only
defended in the suit, but he has filed a counter claim for rendition of
accounts from the plaintiff on the ground that the income and expenditure
amounts have not been correctly shown and proved by the plaintiff.
2. The facts of the case are that the defendant was the producer of
the subject film. Defendant by September, 1995 is said to have incurred
expenditure of around Rs.26,86,000/- + Rs.5.5 lacs (Rs. 1.5 lacs payable to
one Mr. Anees Ansari and Rs.4 lacs payable to the Director, Mr. Kadar
Kashmiri) for the film in question. Defendant at that stage did not have the
finances to complete the film and he therefore approached the plaintiff for
financing the film upto an amount of Rs.20 lacs, subject to the subject film
being produced by the defendant by 31.12.1995. In case the film was not
completed by the defendant by 31.12.1995, then, the plaintiff was entitled to
complete the balance film by incurring expenditure and after recovering his
expenditure, the plaintiff was to pay the defendant a sum of Rs.6.5 lacs and
thereafter the balance income was to be divided 50:50 between the parties.
Parties in this regard entered into the admitted Agreement dated 16.09.1995,
Ex.PW1/1. Plaintiff in this Agreement is referred to as the World Rights
Controllers and the defendant is referred to as the producer. Some of the
relevant clauses of this Agreement are Clauses 3, 5, 6, 8, 10, 11, 12 and sub-
Clauses 12(1), 12(2), 12(3), 12(4), 12(5)(c), 12(8) and 12(13), and which
read as under:-
"3. The Producer have already spent on the production of the said
picture about a sum of Rs.30,00,000/0 (Rupees thirty lakhs only) which
includes the liabilities for various parties and amount received from the
Distributors received for the Production of the SAID PICTURE including
creditors.
xxxxx
5. The PRODUCER have borrowed a sum of Rs.5,00,000/- from one
M/s. TRIDEV MOVIES. Bombay, a copy of the terms of arrangement
with M/s. Tridev Movies, Bombay has already been handed over to the
World Right Controllers by the Producers for their reference and records.
Negative is transferred in the name is TRIDEV MOVIES, firstly this
amount of five lacs is to be paid to that the Negatives will be transferred
and the name of World Right Controller i.e. RAJ RISHI FILMS.
6. Approximately, a sum of Rs.4,50,000/- (Rupees four lakhs fifty
thousand only) are liabilities, outstanding and are to be paid by the
Producers to Shri Rishi Sunny and Shri Pawan Kumar.
xxxxx
8. The Producer have declared to the World Right Controllers that the
estimated cost of Production including cost of positive prints required is
approximately Rs. 20,00,000/-Lakhs for the completion of films upto
Censor and first copy. The Producer also undertakes to complete the film
upto 31.12.95. It will be entirely responsibility of Producer for the dates of
AKSHAY KUMAR and all other articles for the shooting and dubbing
purposes.
xxxxx
10. The Producer have approached the World Rights Controllers and
negotiated and requested for a sum of Rs. 20,00,000/- (Rupees twenty lakhs
only) upon the terms and conditions appearing hereinafter in this agreement
for the purposes of completion of the SAID PICTURE.
11. The World Rights Controllers relying upon the representations and
declaration made by the Producer have agreed for a sum of Rs. 20,00,000/-
(Rupees twenty lakhs only) for the purpose of completion of film upto
Censor subject to proper progress of film. The World right Controller have
an absolute discretion to advance such amount as he deem fit and proper for
further shooting.
12. The Producer have further represented to the FINANCIERS (World
Rights Controllers) that they have good right, title to the said picture and
the Producer have full power and absolute authority to enter into this
agreement. The parties are desirous of reducing the terms and conditions
agreed upon between them in writing NOW IT IS HEREBY AGREED BY
AND BETWEEN THE PARTIES HERETO AS FOLLOWS:-
1) Upon the terms and conditions mentioned in this Agreement,
The World Rights Controllers hereby agree to lend and producer
agrees and to borrow respectively, the sum of Rs. 20,00,000/-
(Rupees twenty lakhs only). The said amount of Rs. 20,00,000/-
shall be lent and advanced by the World Rights Controllers to the
Producers by instalments in accordance with and depending upon the
progress of the said picture. The amount of such instalments shall be
determined by the World Rights Controllers and the options of the
World Rights Controllers, in this behalf, shall be binding upon the
Producers. It is hereby agreed that the said sum of Rs. 20,00,000/-
shall be utilized and borrowed by the Producer only after the World
Rights Controllers have paid to M/s. Tridev Movies, Bombay a sum
of Rs. 5,00,000/- (Rupees five lakhs only) in settlement of their
claim of M/s. Tridev Movies, Bombay in full and final. All
materials lying with ADLABS will be automatically transferred to
M/s. RAJ RISHI FILMS know as World Right Controller.
2) In consideration of the above the World Right Controller has
agreed to pay Rs. 1,00,000/- (Rupees one lakh) as signing amount on
the day of signing this agreement.
3) In consideration of the World Rights Controllers agreeing to
lend and advance the said sum of Rs. 20,00,000/- (Rupees twenty
lakhs only) as mentioned hereinabove and the Producer undertakes
for completion of the said PICTURE, within twenty lakhs. The
Producer shall execute Promissory Notes or Bill of Exchange for the
amount so for received and for the balance amount to spend on the
progress of film.
4) The World Rights Controller, after receiving Rs.20,00,000/-
(Rupees twenty lakhs only) agreed to pay Rs. 6.50 lakhs to S.A.
Luthra to the Producer and thereafter the amount will be shared in
the ratio of 50:50 i.e. 50% shall be paid to the producer and the
balance 50% shall be retained by the World Rights Controllers from
all the recoveries. The Producer have not till date given the
distribution, exhibition and exploitation rights of the said picture to
anybody except as per Schedule 'A' and hereby agree that, now
onward, such Distribution agreement/s that may be entered into shall
be done by World Rights Controllers only. Further, the Producer
have agreed and undertaken to prominently give the name of the
World Rights Controllers i.e. Shri Rishi Raj Presents, in the title of
the film as well as posters, photosets and all other publicity
campaign of the film. This is also essence of the Agreement.
5 xxx xxx xxx
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) All moneys which may be receivable under all contracts for
sale and/or for disposal of the distribution, exhibition and
exploitation rights of the said picture in 35mm and all sub-
standard and other sizes either on signing or execution of the
SAID PICTURE and/or against delivery of Publicity materials
and prints of the said picture for all the territories of the world
and also on account of Royalty to be earned from sale of
gramophone records of songs of the said picture or sale of
Audio or Video Cassettes of the said picture shall be received
by the World Rights Controllers only.
xxx xxx xxx
8. All such moneys that may be received under all such
agreements from the Distributors already appointed or that may be
appointed hereafter in respect of the SAID PICTURE on various
rights for entire world or any part thereof shall be retained by the
World Right Controllers and appropriated in the manner mentioned
hereinafter.
(a) Rs. 20,00,000/- to be retained by the World Rights
Controllers.
(b) Rs. 5,00,000/- to be paid to M/s. Tridev Movies,
Bombay.
(c) Rs.4,50,000/- to be paid to M/s. Rishi Sunny & Pawan
Kumar
(d) Rs. 6,50,000/- shall be paid to the Producer.
After that all income shall be divided as 50:50, Producer, and World
Right Controllers.
xxx xxx xxx
13. If the said picture is not completed and the negative and rush
prints not delivered to the World Rights Controllers on or before 31st
December, 1995, the World Rights Controllers without prejudice to
their rights and remedies shall be entitled without being bound to
complete the same and get the same censored themselves or through
their Agent or Agents at the risk and cost of the Producer and the
amount spent by the World Rights Controllers in such completion
shall be considered as a further advance to the Producer hereunder
and to be secured and to be recovered by or repaid to the World
Rights Controllers in the same manner as provided herein for
security, recovery and repayment of the said sum of Rs. 25,00,000/-
(Rupees twenty five lacs only)." (underlining added)
3. Along with this Agreement dated 16.09.1995, parties annexed
Annexure "A", the chart as regards the liabilities and expenditure already
incurred by the defendant towards production of the subject film and this
Annexure "A" reads as under:-
" ANNEXURE "A"
The details of the payment received from different distributors and the total
amount for which sold to each distributor.
FILM "LAKSHKAARA"
Distributors Amount
Total amount. received
1) Hone Video Bombino 11.25 3.90
2) Overseas C.A.Corpn. 10.25 3.45
3. Rajasthan Trimurti Ent. 3.75 1.50
4. E. Punjab Saajan Movies 2.25 0.90
5. C.I. H.K. Films 3.00 0.40
6. Bihar/Nepal Sapna Movies. 6.75 0.80
7. W. Bengal Swagat Int. 3.50 1.30
8. Assam Harpreet Ent. 1.50 0.25/30
9) Orrissa Bhagya Laxmi Movies 1.65 0.40/45
10)Mysore Noorani Pict. 1.91 0.46
____ ______
45.81 13.36
LAB. LETTERS:
1) E.Punjab-Rishi Sunny
2) Rajasthan-Rishi Sunny 4.50
3) Overseas-Pawan Kumar
4) Negative Rights Holder 5.00 Net (FIVE LACS ONLY)
Ramesh Mankani.
5) Stock (Lab.) Approx. 4.00
Inclusive of processing
Also positive.
Sd/- Sd/-
M/S. SWASTIKA PROJECTIONS SHRI RISHI RAJ
MR. S.A. LUTHRIA WORLD RIGHTS CONTROLLERS
PRODUCER. CONTROLLERS."
4. A reading of the aforesaid clauses shows that the plaintiff was
to invest in essence a sum of Rs.20 lacs at the first stage and which he was to
be repaid with interest. If by 31.12.1995 the film was not complete, then the
plaintiff had a right to step into the film production by incurring the
complete expenditure. The plaintiff's investment in the subject project by
means of expenditure was to be first recovered from the recoveries to be
made from the release of the film, and after paying the other creditors the
amounts which were due to them, the net revenue from the release of the
film was to be equally divided between the parties.
5. In performance of Ex.PW 1/1, before 31.12.1995, the plaintiff
paid an amount of Rs.5 lacs to M/s. Adlabs Films Pvt. Ltd., and which was
the firm which had with it the reels of the subject film to the extent the same
was already shot. The factum with respect to plaintiff making payment of
Rs.5 lacs to M/s. Adlabs Films Pvt. Ltd. is clear from the admitted document
Ex.P-1 (also Ex.PW1/2) being the letter dated 20.09.1995 written by M/s.
Adlabs Films Pvt. Ltd. to the plaintiff. It may also be noted that before M/s.
Adlabs Films Pvt. Ltd. wrote this letter dated 20.09.1995 to the plaintiff, the
plaintiff had cleared the liability of M/s. Tridev Movies for a sum of Rs.5
lacs as is found to be inter alia stated in para 5 of the Agreement dated
16.09.1995. The letter of M/s. Adlabs Films Pvt. Ltd. dated 20.09.1995 also
showed that besides the expenditure and liability incurred by the defendant
as stated in Annexure "A" to the Agreement dated 16.09.1995, there were
two other liabilities of the defendant with respect to the subject film being an
amount of Rs.1,50,000/- payable to Mr. Anees Ansari and Rs.4,00,000/-
payable to the Director, Mr.Kadar Kashmiri.
6. The subject film admittedly could not be completed by
31.12.1995 and, therefore, the plaintiff stepped in and incurred expenditure
towards completion of the film.
7. After the plaintiff took over the production of the film with
effect from 01.01.1996 and incurred expenditure, parties entered into a
Settlement Deed on 31.05.2003 and which Settlement Deed is an admitted
document, Ex. PW1/3 (also Ex.P-3). This Settlement Deed shows that
plaintiff had spent till 31.05.2003 a sum of Rs.46 lacs for the subject film
and the net recoveries were to be shared 50:50 between the parties after
payment of the creditors including those parties who had lien on the prints of
the film as also M/s Adlabs Films Pvt. Ltd. which had supplied the raw stock
for the shooting of the film. The Settlement Deed dated 31.05.2003 reads as
under:-
" SETTLEMENT DEED
This settlement deed is made on 31st May, 2003 between M/S RAJ
RISHI FILMS (Known as World Rights controller) and M/S
SWASTIKA PROJECTIONS (known as Producers).
As mutually settled between both the parties, the World Rights
controller has invested Rs. 46,00,000/- (forty six lacs only) for the
Shooting, Dubbing and payment of Artist and technicians and
payment to Tridev Movies, which amount is confirmed by the
producer and here-after known as the investment made by World
Rights controller. Henceforth all the expenses made by the World
Rights controller for the completion of the film "LASHKARA" shall
be treated as additional investment. The partnership deed signed
between S.A. Luthria and Shivam Raj for Swastika Projections shall
be treated as cancelled. And Mr. S.A. Luthria shall be the sole
proprietor of the Firm. The notices and letters sent by both the
parties shall be withdrawn and henceforth the World Rights
Controller and Producer has no differences of any nature what-so-
even and agree to complete the film "LASHKARA" as early as
possible.
As per the Agreement between both the parties, all the
recovery/income shall be dispersed in the following manner:
The Lab letters confirmed to the various parties.
Dues of the Lab.
Investment made by the World Rights Controller i.e.
Rs. 46,00,000/- (forty six lacs only) plus the additional
investment made upto the censor.
Rs. 6,50,000/- (six lacs and fifty thousand only) shall be
paid to the Producer.
After making all the payments above the income shall be divided fifty-fifty
i.e. fifty percent of the income shall be retained by World Rights Controller
and fifty percent shall be given to the Producer.
Rest all other terms shall be same as per the agreement dated 16/09/1995.
Both the parties have agreed and confirmed the above.
RAJ RISHI FILMS S.A. SUTHRIA
Sd/- Sd/-
(WORLD RIGHTS CONTROLLER) (PRODUCER)"
8. The film could only be completed by October, 2004 and it was
released on 15.10.2004. That the date of release of the film is 15.10.2004, is
clear from the Legal Notice dated 3.10.2005, Ex.P-4 (also Ex.PW1/8), sent
by the defendant to the plaintiff wherein in para 2 the defendant specifically
mentions with respect to release of the subject film on 15.10.2004. By the
time of release of the film plaintiff had incurred expenditure much beyond
the expected sum of Rs.25 lacs. Immediately after release of the film the
case of the plaintiff is that the parties prepared and signed documents dated
29.10.2004, Ex.PW1/5 and Ex.PW1/6 showing the income and expenditure
on the release of the film, and the net details of the expenditure and revenue
showed that a net amount of Rs.20,78,483/- was still recoverable by the
plaintiff. Defendant has not denied his signatures on these documents
Ex.PW1/5 and Ex.PW1/6 dated 29.10.2004 but defendant has denied the
admissibility of the documents solely on the ground that the documents only
contained entries and entries have no value in the eyes of law unless entries
are supported by the relevant documents.
9. The next event after 29.10.2004 is the existence of a signed
document dated 17.03.2005, Ex.PW1/7. Whereas as per the case of the
plaintiff this document dated 17.03.2005 is signed by both the plaintiff and
the defendant showing that as on 17.03.2005, the plaintiff is entitled to a
final net amount of Rs.25 lacs from the defendant with respect to the project
in question. Defendant has vehemently denied this document and stated that
this document is a forged and fabricated document.
10. The following issues were framed in this suit on 27.02.2007:
"1. Whether Clause 22 of the Agreement dated 16.9.95 filed
by the plaintiff alongwith the plaint (at page 16) was deleted at
the time of execution of the said agreement as alleged by the
plaintiff para 7 of the plaint? OPP
2. If issue no. 1 is answered in negative, whether this
Hon'ble Court has jurisdiction to try and entertain the present
suit? OPD
3. Whether the document dated 17.3.2005 filed by the
plaintiff alongwith the plaint (at page 32) bears genuine
signature of the defendant? OPP
4. Whether the plaintiff is entitled to the decree for a sum of
Rs. 28,00,000/- and pendent lite interest as prayed for by him?
OPP
5. Whether the plaintiff is entitled to the decree for
permanent injunction as prayed for by him? OPP
6. Whether the accounts between the plaintiff and the
defendant has been settled? OPP
7. If the issue no. 6 is decided in the negative, whether the
plaintiff is liable to render to the defendant truthful and correct
account of expenses incurred as also the income received by
him duly supported by the bills, vouchers and receipts? OPD
8. Whether the defendant is entitled to the decree for a sum
found to be due upon rendition of accounts together with
interest thereon? OPD
9. Whether the defendant is entitled to a declaration that the
plaintiff has no right, title or interest in the movie 'Hatya-The
Murder' and that he is not entitled to deal with the same? OPD
10. Whether the plaintiff is liable to return to the defendant
the negatives of the movie 'Hatya-The Murder'? OPD
11. Relief."
11. The plaintiff in support of his case stepped into the witness box
and filed his affidavit by way of evidence. The plaintiff deposed as PW1.
The plaintiff proved various documents in support of his case and was cross-
examined by the defendant. The defendant also stepped into the witness box
and filed his affidavit by way of evidence. Defendant deposed as DW1 and
he was cross-examined by the plaintiff.
12. Let me now take up each of the issues and decide the same as
per the arguments urged by the parties and the evidence led by the parties. I
may note that issue nos.1 and 2 with respect to whether this Court has
territorial jurisdiction was not pressed by the defendant and it is conceded
that this Court should decide the suit on merits.
13. Issue nos. 3 to 5 are being taken up together for disposal
inasmuch as the determination of these issues will show as to whether the
accounts between the parties were finally settled as on 17.03.2005 and as to
whether the defendant had executed the document dated 17.03.2005 as per
which the plaintiff was entitled to the final net amount of Rs.25 lacs. Under
these issues the earlier documents dated 29.10.2004 including the aspect as
to their validity will also be discussed. Another aspect which will be
considered will be whether the defendant in view of the Settlement Deed
dated 31.05.2003 can question the figure of investment of Rs.46 lacs of the
plaintiff as stated in the Settlement Deed dated 31.05.2003.
14. This fact is not in dispute between the parties that the defendant
till 31.12.1995 could not complete the film and hence plaintiff stepped in for
completing of the film by incurring expenditure for the same. The admitted
document/Settlement Deed, Ex. P-3 (also Ex.PW1/3) dated 31.05.2003
which has been reproduced above shows that by 31.05.2003, the plaintiff
had incurred expenditure of Rs.46 lacs on the subject film. In my opinion,
the stand of the defendant in his letter dated 05.05.2003 (this document is
now exhibited as Ex-DX-I as per the consent of the parties) that the plaintiff
had got various papers and receipts signed in good faith from the defendant
and on blank documents, would no longer be available to the defendant in
support of his defence once the subsequent document being the Settlement
Deed dated 31.05.2003 is an admitted document between the parties and this
Settlement Deed dated 31.05.2003 shows that defendant accepted that
plaintiff had invested and incurred an expenditure of Rs.46 lacs for the
subject film till 31.05.2003
15. From the year 2003 till October, 2004 there is no other
document between the parties and the first document thereafter is the Legal
Notice dated 3.10.2005, Ex.P-4 (also Ex.PW1/8). This Legal Notice dated
3.10.2005 sent by the defendant to the plaintiff states that plaintiff is liable to
render complete accounts till 3.10.2005 to the defendant. As stated above
though this notice Ex.P-4 in para 2 questions the figure of Rs.46 lacs written
in the Settlement Deed dated 31.05.2003, such a stand does not in any
manner benefit the defendant because not only the defendant cannot
question the admitted terms in an admitted document by virtue of Sections
91 and 92 of the Indian Evidence Act, 1872, but also it is noted that it is for
the first time after 31.05.2003 only much later in October, 2005 (viz after
around two years and four months) that the defendant questioned the
expenditure of Rs.46 lacs incurred by the plaintiff for the subject film and as
already agreed upon and stated in the Settlement Deed dated 31.05.2003. So
far as the aspect that whether plaintiff has or has not rendered accounts as
demanded by the defendant in Legal Notice dated 03.10.2005 sent on behalf
of the defendant, the decision of this issue will revolve upon whether or not
this Court accepts the rough accounts dated 29.10.2004 which are admittedly
signed between the parties, and have been exhibited as Ex. PW1/5 and Ex.
PW1/6. The defendant questions these documents not on the ground that
they are not signed by the defendant but on the ground that these documents
are not admissible in evidence, inasmuch as these documents reflect the
entries of accounts, and hence have to be proved as per the defendant by the
vouchers and documents of the entries, and since plaintiff has not filed and
proved the documents/vouchers of the entries, the documents Ex.PW 1/5 and
Ex.PW 1/6 dated 29.10.2004 will not show settlement of accounts and that
consequently the net liability towards the plaintiff of the sum of
Rs.20,78,483/- with respect to the subject project. The case of the defendant
as per his written statement is that the signatures of the defendant on Ex. PW
1/5 and Ex.PW 1/6 are only for the purposes of noting the figures and cannot
be said to be in any manner reflective of the final settlement of accounts
between the parties. The question is, is the stand of the defendant correct as
is being argued. The defendant in support of his this argument places
reliance upon the judgment of the Supreme Court in the case of Ishwar Dass
Jain (Dead) Through LRs Vs. Sohan Lal (Dead) by LRs, 2000 (1) SCC
434 that entries of books of accounts are of no use unless and until the
entries are supported by the documents and vouchers of the transactions
contained in the entries.
16. In my opinion, the argument of the defendant in this regard
does not merit acceptance because once the defendant admits to have signed
Ex.PW 1/5 and Ex. PW 1/6 dated 29.10.2004, and which documents show
the entries of the total revenue and expenditure till 29.10.2004 with respect
to the subject film, in my opinion, defendant cannot now contend that his
signatures on these documents are only for noting the entries and not with
respect to the documents being the settlement of accounts as on 29.10.2004.
The documents Ex. PW 1/5 and Ex. PW 1/6 contain each and every entry
with respect to the revenue received on the release of the subject film and
the expenditure incurred till that date, and hence, these documents in my
opinion would show a settled account between the parties as on 29.10.2004.
I may note that the defendant has not put a suggestion to the plaintiff/PW1 in
his cross-examination that the documents Ex. PW 1/5 and Ex. PW 1/6 are
forged and fabricated documents, and the issue is only that whether these
documents are admissible on the ground that these documents are only
entries without any supporting vouchers to prove the same. In my opinion,
once there is a settled account in the form of various figures and entries duly
signed by both the parties, there is no requirement in law that the vouchers
of the entries have to be proved with respect to the entries. Reliance by the
defendant on the judgment of Ishwar Dass Jain's case (supra) is misplaced
because the said case was not dealing with a signed document evidencing
settlement of accounts between both the parties. No doubt in law, entries in
books of accounts have to be proved by vouchers of the transactions, but,
that is only when the entries are not admitted by the other side in terms of a
settlement account. Once the entries are admitted and there is a document
showing the revenue entries and the expenditure entries, and consequently
the net amount due and payable, there does not arise any scope for
application of the principle contained in Section 34 of the Indian Evidence
Act, 1872, inasmuch as, Section 34 of the Indian Evidence Act operates in a
totally different field where one party relies upon his document being an
unsettled statement of accounts and which statement of accounts contains
entries which are not proved by the documents of the entries/transactions.
Section 34 of the Indian Evidence Act, 1872 and Ishwar Dass Jain's case
(supra) will have no application in the facts of the present case where there
is a settled account document duly signed by both the parties.
17. I therefore reject the arguments with respect to non-
admissibility of the documents Ex. PW1/5 and Ex. PW1/6 dated 29.10.2004
and hold that in terms of these documents, a sum of Rs.20,78,483/- became
due and payable to the plaintiff as on 29.10.2004 and which is a date after
the release of the film on 15.10.2004.
18. The next aspect to be examined is whether the sum of
Rs.20,78,483/- would stand enhanced to Rs.25 lacs as a settled figure as on
17.03.2005 or whether this figure would stand reduced by a sum of
Rs.4,75,000/-, inasmuch as, plaintiff in para 15 of the plaint admits that after
29.10.2004, Asian satellite rights and Indian Television Rights of the subject
film were sold to M/s Sharad Trading Company on 28.02.2005 for a sum of
Rs.4,75,000/-. The issue really boils down to whether the document dated
17.03.2005, and which is sought to be proved and exhibited by the plaintiff
as Ex. PW1/7, (denied by the defendant), can be said to have been proved by
the plaintiff for being looked into by this Court, and consequently for
plaintiff being held entitled to a sum of Rs.25 lacs as stated in this document
dated 17.03.2005.
19. No doubt, the defendant in his written statement has denied the
existence of this document dated 17.03.2005 and has pleaded that this
document is a forged and fabricated document, however, there is a
difference between pleadings and proof and by a mere pleading, the
defendant cannot be said to have proved this document to be a forged and
fabricated document. The plaintiff has discharged the onus of proving this
document as Ex.PW1/7 and this document is deposed by the plaintiff to be
signed both by the plaintiff and the defendant. Once the plaintiff deposed
so, in the facts of the present case, it was mandatory and incumbent upon the
defendant to put a specific suggestion to the plaintiff/PW1 in his cross-
examination that the document Ex. PW1/7 is a forged and fabricated
document. I have specifically put a query to the counsel for the defendant to
show me a suggestion put by the defendant in the cross-examination of
plaintiff/PW1 that Ex. PW1/7 is a forged and fabricated document, but the
counsel for the defendant had no option but to concede that no suggestion
has been put by the defendant to PW1/plaintiff that Ex. PW1/7 dated
17.03.2005 is a forged and fabricated document. At this stage, let me
reproduce the document Ex.PW1/7 dated 17.03.2005 and the same reads as
under:-
" 17.3.05
B.F. HATYA FINAL A/C
Rs. 25,00,000=00
Total Balance of RISHI
RAJ Till Today is
(Twenty Five Lacs only)
Sd. Sd.
Rishi Raj S.A. Luthria/17/3/05
17.3.05"
20(i). This Court in the absence of any expert evidence which is led
by both the parties is entitled under the provision of Section 73 of the Indian
Evidence Act, 1872 to compare the disputed signatures with the admitted
signatures. Taking up this responsibility, a comparison of the signatures of
the defendant on the disputed document Ex.PW1/7 with the admitted
signatures appearing on admitted documents Ex.PW1/1, Ex.PW1/3
(Settlement Deed dated 31.05.2003), Ex.PW1/5 and Ex.PW1/6 dated
29.10.2004 shows that there is an uncanny similarity between the disputed
signatures of the defendant on the document, Ex.PW1/7 and the signatures
of defendant on the documents, Ex.PW1/1, Ex.PW1/3, Ex.PW1/5 and
Ex.PW1/6. In my opinion, the fact that no specific suggestion was given by
the defendant to the plaintiff in cross-examination of the plaintiff as PW1
that this document Ex.PW1/7 is a forged and fabricated document, would
turn the table in the present case against the defendant and in favour of the
plaintiff for holding that the document dated 17.03.2005, Ex.PW1/7 is a
document which is signed by the defendant and that the same is not a forged
and fabricated document.
(ii) The signatures which appear of the defendant on the disputed
document Ex. PW1/7 dated 17.3.2005 are smooth and have an even flow.
Therefore, taken with other aspects of the document of the plaintiff Ex.
PW1/9 (Ex. P-5) dated 27.10.2005 mentions about the amount due of Rs. 25
lacs to the plaintiff and the unacceptable/unbelievable stand of the defendant
of signing blank papers in the letter of the defendant's advocate dated
17.1.2006, Ex. PW1/10 (also Ex. P-6), this Court has no hesitation to come
to the conclusion that the document Ex. PW1/7 is not a forged and fabricated
document set up by the plaintiff but that the same contains genuine
signatures of the defendant and was signed by the defendant with respect to
the final position of the accounts being that a sum of Rs. 25 lacs was due and
payable to the plaintiff as on 17.3.2005.
(iii) I may also note that the guilty conscience of the defendant
becomes clear from his Legal Notice dated 03.10.2005 Ex.PW1/8 (also
Ex.P-4) inasmuch as the defendant knowing that he had signed this
document Ex. PW1/7 dated 17.03.2005 mentioned much later in the Legal
Notice dated 3.10.2005 that accounts have not been settled and that the
defendant is entitled to rendition of accounts, and this was obviously so
stated for the reason that defendant knew that accounts have been settled in
terms of the document dated 17.03.2005, Ex. PW1/7 and he had to wriggle
out of the document dated 17.3.2005. Whatever doubt which remains in this
regard is cleared from the letter dated 27.10.2005 Ex. PW1/9 (also Ex. P-5),
and which is a letter written by the plaintiff to the advocate of the defendant.
Receipt of this letter has been admitted by the defendant, though the
defendant had conveniently denied the contents thereof. A reading of the
second and third paragraphs of this letter dated 27.10.2005 clearly shows
that the plaintiff had specifically and in so many words written in this letter
of October, 2005 that the amount of Rs.25 lacs is payable to the plaintiff by
the defendant and it has been confirmed in writing by the defendant to the
plaintiff.
(iv) Though the defendant has tried to explain away the signatures
on Ex. PW1/7 in his Advocate's letter dated 17.1.2006, Ex. PW1/10 (also
Ex. P-6) written to the plaintiff wherein in para 5 defendant has talked of
handing over of blank signed papers to the plaintiff and which are allegedly
used by the plaintiff to make the document, Ex. PW1/7 of Rs. 25 lacs,
however, one finds the theory of "blank documents" really hard to believe in
commercial relationships between the parties such as the present one and
more so because there was no reason whatsoever why blank signed
documents would have been given by the defendant to the plaintiff. Further,
the defendant while in this document, Ex. PW1/10 (also Ex.P-6) dated
17.1.2006 took up a case of plaintiff being given blank signed papers which
have been misused with respect to the amount of Rs. 25 lacs being due to the
plaintiff as per Ex. PW1/7 ie Ex.PW1/7 is signed by defendant but
signatures were taken on blank papers, however, in his written statement the
defendant in fact has taken up a wholly divergent/different stand that the
document Ex.PW1/7 is a forged and fabricated document containing forged
signatures of the defendant and not that signatures of defendant on blank
papers were taken. Really, therefore, defendant's cases set up differently at
different points of time lack credibility for this Court to accept the same.
In my opinion therefore on the preponderance of probabilities, and as
per the evidence led in the present case, I hold that the document being letter
dated 17.03.2005, Ex. PW1/7 is not a forged and fabricated document as
alleged by the defendant, and this document is proved and accordingly,
defendant is liable to pay a sum of Rs.25 lacs to the plaintiff as per this final
position which emerged between the parties as on 17.03.2005.
21. Issue nos.3 to 5 are accordingly decided holding that the
plaintiff is entitled to the principal amount of Rs.25 lacs and that document
dated 17.03.2005, Ex.PW1/7 bears the genuine signatures of the defendant
and plaintiff is entitled besides recovery of Rs.25 lacs to the injunction as
prayed by him that the defendant will not in any manner interfere with the
exercise of rights by the plaintiff with respect to the subject film as an owner
thereof.
22. These issues were the counter issues to issue nos. 3 to 5 and
once issue nos.3 to 5 have been decided in favour of the plaintiff and against
the defendant, defendant obviously is not entitled to any rendition of
accounts or for the relief of injunction or any money decree as prayed for,
inasmuch as the defendant is in fact liable to pay a sum of Rs.25 lacs and as
confirmed by the defendant to the plaintiff in terms of the document, Ex.
PW1/7 dated 17.03.2005. These issues are therefore decided in favour of the
plaintiff and against the defendant.
Relief
23. Accordingly, the suit of the plaintiff is decreed against the
defendant for a sum of Rs.25 lacs as the principal amount. Plaintiff is also
entitled to interest @ 12% p.a. simple from 17.03.2005 till the date of filing
of the suit inasmuch as plaintiff has claimed interest from the defendant in
plaintiff's reply dated 27.10.2005, Ex.PW1/9 (also Ex.P-5). Though the
plaintiff has claimed interest @ 24% p.a. in this document, Ex.PW1/9 (also
Ex.P-5) dated 27.10.2005, but in my opinion plaintiff is held entitled to
interest only @ 12% p.a. simple and at which rate plaintiff has restricted his
claim of interest in this suit. Plaintiff will also be entitled to pendente lite
and future interest @ 12% p.a. simple till payment by the defendant to the
plaintiff of the decretal amount. Plaintiff is also entitled to a decree of
permanent injunction that the defendant will not in any manner interfere
with the exercise of the ownership rights of the plaintiff with respect to the
subject film "Hatya - The Murder".
Parties are left to bear their own costs. Decree sheet be drawn
accordingly.
AUGUST 18, 2015 VALMIKI J. MEHTA, J.
nn/rb
