R MADESH Vs. A M RATHINAM

JUDGEMENT

(1.) BOTH these appeals arise out of common order dated 17th July, 2007, passed in two different applications, one preferred by the plaintiff and other by the defendant. They were heard together and disposed of by this common judgment.

(2.) R. MADESH, appellant of O. S. A. No. 227/07 is the plaintiff whereas A. M. Rathinam, appellant of O. S. A. No. 288/07 is the defendant in the suit. The plaintiff preferred suit for recovery of a sum of Rs. 25,50,000/= advanced by the plaintiff to the defendant and for permanent injunction and other reliefs. Originally, an order of interim injunction was granted on 18th April, 2007. In view of interim order, the defendant, while preferred an application for vacating the stay, an application under Order VII Rule 11 (d) of the Code of Civil Procedure was also filed by the defendant to dismiss the suit, being barred by limitation. By impugned common order dated 17th July, 2007, learned Judge, while refused to reject the plaint, mixed question of fact and law being involved, pursuant to the other application, vacated the interim order of injunction.

(3.) LEARNED counsel appearing on behalf of the plaintiff (appellant in OSA No. 227/07) submitted that the plaintiff paid a sum of Rs. 25 lakhs to the defendant by way of three cheques between 31st Jan. , 2000 and 2nd Feb. , 2000. The defendant, earlier promised and assured the plaintiff that he will repay the amount during all these years, ultimately, by superseding the oral assurances/arrangements, the defendant, on 2nd Jan. , 2007, wrote a letter to the plaintiff admitting his liability to the tune of Rs. 25 lakhs payable to the plaintiff, having received the said amount towards advance for a film. According to counsel for the plaintiff, the defendant had promised to repay the said amount to the plaintiff before the conclusion of sale of his present film "bheema" (Tamil and Telegu release rights), which is due for release, but contrary to the defendant's assurance, the defendant, instead of discharging his admitted liability, secretly concluded to sell the film to third-parties with a view to deceive the plaintiff. It was submitted that there being a prima facie case, balance of convenience in favour of the plaintiff and release of cinema as may cause irreparable loss, it was a fit case to grant interim injunction, which was granted and impugned order vacating such stay was uncalled for.