VIPIN GUPTA Vs. CHITRA ADVERTISING PRIVATE LIMITED

JUDGEMENT

(1.) By this summary suit under Order 37 of the Code of Civil Procedure (in Short CPC) Vipin Gupta has sought recovery of Rs. 386 10,35,000.00 against M/s Chitra Advertising Pvt. Ltd. and Abbas Hakim. Brief facts of the case are that the plaintiff deals in the business of advertising and marketing of various products. He brings business to Doordarshan for which he is paid commission. Defendant No. 2 Abbas Hakim is a producer of T.V. serials. He has already produced T.V. serial such as 'Kisse Miyan Biwi Ke'. The said defendant had a concept of T.V. serials known as 'Sunahre Warq'. He had submitted the proposal of 13 episodes and pilot episoode to Doordarshan for approval. The said approval was granted on 2nd August, 1989. The serial was scheduled to be telecaste on the national network from 9th June, 1990 at 9.00 p.m. Plaintiff procures sponsored programmes for his potential clients in the form of episode for telecasting over national network of Doordarshan. Vide agreement dated 10th February, 1990 he purchased the telecasting rights and all benefits accruing therefrom from defendant No. 2. Defendant No. 2 agreed that the programme entitled 'Sunehre Warq' will not be offered at any point of time to any other agencies, sponsors or parties. Plaintiff obtained the exclusive rights. As per agreement, plaintiff was required to pay Rs. 2,80,000.00 per episode for sponsorship. In accordance with the terms and conditions he paid a sum of Rs. 12,50,000.00 to defendant No. 2. It is further averred that for some reasons the serial could not be telecasted on the fixed date. Defendant No. 2 arbitrarily and illegally cancelled the agreement vide notice dated 21st June, 1990. After cancelling the contract he did not return the money received from the plaintiff amounting to Rs. 12,50,000.00 . Though the exclusive right on the serial was that of the plaintiff but the defendant No. 2 without returning the payment entered into another agreement with defendant No. I, thereby giving the defendant No. I telecasting right of this serial including the right to enter into an agreement with the responsors. On acquiring this knowledge, plaintiff lodged a protest. Thereafter a settlement was arrived at, pursuance to which the tripartite agreement was entered into between the plaintiff on one hand and defendants 1 &2 on the other, dated 16th May, 1991. As per that agreement, defendant No. 1. agreed to pay the amount of the plaintiff for and on behalf of defendant No. 2. The plaintiff agreed to abrogate his right in favour of the said defendant No. 1. As per terms of the agreement, a sum of Rs. 1,50,000.00 was paid by bank draft and another sum of Rs. 2 lacs was paid by cheque to the plaintiff. It was also agreed that the balance amount of Rs. 9 lakhs would be paid by defendant No. I to plaintiff directly on behalf of defendant No. 2. The plaintiff abrogated his exclusive rights in the said serial on the assurance and undertaking of defendant No. I that the payment of the balance amount would be made, he relinquished his rights. Inspite of the said agreement dated 16th May, 1991, the defendants have not paid the balance amount of Rs. 9 lakhs to the plaintiff. Defendants instead of making the payment as per agreement filed a suit claiming damages from the plaintiff at Bombay High Court. This they did in order to avoid the payment of the balance amount. The amount claimed is based on the written agreement executed between the parties hence the suit under Order 37 CPC.

(2.) Notice under for Form-IV, Schedule-B of Order 37 was issued to the defendants. They put in appearance in time. Thereafter summons of judgment were issued. In response both the defendants filed affidavits seeking leave to defend. Defendant No. I, filed the affidavit of one Ms. Madhubala Srivastava, 387 Manager Sponsored Programme and Emerging Media. The leave to defend affidavit was filed within time, but the Counsel for the plaintiff objected to the same on the ground that it has not been filed by a competent person of the defendant No. 1. Hence in the eye of law there is no affidavit of defendant No. I, seeking leave to defend as required Rule 3, Sub-Rule (5) of Order 37 CPC. Defendant No. I, M/s Chitra Advertising Pvt. Ltd. vide its Resolution authorised one Sh. Satish Soney to represent the company before this Court. Hence the leave to defend could only be filed by Sh. Satish Soney. In fact the power of attorney/Vakalatnama in favour of the Counsel has also been executed and signed by the said Satish Soney on behalf of defendant No. 1. Madhubala Srivastava was never authorised by the Company to file any application or affidavit seeking leave to defend. Rule I of Order 29 Civil Procedure Code envisages that when a company or corporation is to sue or be sued it shall be represented by its Secretary, Director or Principle Officer. Ms. Madhubala Srivastava is neither of the three. Therefore, she had no authority to file this affidavit. Any affidavit or leave to defend which is filed by an unauthorized person is honest in the eye of law. This Court cannot take cognizance of the same, nor can it be said that defendant No. I has sought leave to defend. Even in her affidavit she has nowhere stated that she has the authority being a Principal Officer to file this affidavit, neither she produced nor relied on any resolution of the Board of the Company authorising her to file this affidavit. Authorisation Mark "A" dated 11th May, 1992 is not in her favour. It is in favour of Shri Satish Soney. But the said Satish Soney had not applied for leave to defend. Hence, there being no affidavit of leave to defend in the eye of law filed by defendant No. I decree should be passed against defendant No. I forthwith. To strengthen his arguments Mr. Kapur Counsel for the plaintiff, placed reliance on the decision of High Court in the case of Subhash Malhotra v. M.L. Kapur and Anr" 21 (1982) Delhi Law Times, 97, which was a case under Section 25B of the Delhi Rent Control Act (In short the DRC Act). Placing reliance on that judgment Mr. Kapur contended that even though the Subhash Malhotra's case was under the DRC, Act, still the provisions of 25B Sub-section (5) are para materia thesameas0rder37 Rule3(5). Therefore, the position which boils down is that the defendant or its authorised representative alone can seek leave to defend. Ms. Madhubala Srivastava nowhere in her affidavit stated that she had the authority on behalf of the company or that she being a Principal Officer was filing the affidavit. Rather in her affidavit she has clearly stated that she was working as Manager Sponsored Programme.

(3.) Refuting this assertion. Counsel for defendant No. I contended that this ground was not taken by the plaintiff in his reply. Therefore, this oral argument cannot be allowed now nor the defendant can be taken by surprise. This Court in Subhash Malhortra's case was dealing with the case or a landlord. He had raised the objection of non filing of the leave to defend affidavit by the tenant at the first available opportunity. Inspite of opportunity having been afforded to the tenant in that case, the tenant did not rectify the defect. It was in this back ground that the Court held that there was no affidavit seeking leave to defend before the Court. But in the present case no such objection was taken. Therefore, the defendant had no opportunity to rectify the mistake. If given opportunity he would have filed proper affidavit seeking leave to defend. 388