POPULAR ENTERTAINMENT NET WORK LTD. Vs. PIYUSH CHAKRABORTY

JUDGEMENT

(1.) An agreement was entered into between the parties dated 23-12-1996. In terms of the said agreement, the company was to pay to the Petitioner an amount of Rs. 1,50,000 and thereafter an amount of Rs. 5 lakhs on the release of the film. The agreement was to assign the sole rights in the film JEEVAN YUDH (Hindi) which included copyright, performance right, mechanical production right and reproduction right and broad casting right in the said work and its literary, dramatic, artistic and musical work, etc. The film has been released. However, the company has failed and neglected to pay the said amount. A statutory notice was served on the company. The company has raised a plea that there has been non- fulfilment of the terms of the agreement and on account of the same the issue cannot be decided in the present company petition. Affidavit in reply to the same effect has been filed in this Court opposing admission of this petition. Reliance is placed on paragraph 4 of the said agreement. Perusal of paragraph 4 of the agreement would show that the assignee was to be supplied with sound tracks and/or recorded tapes of the sound track, musical and/or other works from the said work as the Assignee shall select and to enable the assignee to utilise such sound tracks and/or recorded tapes for the purpose of re-recording therefrom and the subsequent manufacture of gramophone records, etc. provided they are in the opinion of the assignee, suitable for such purpose. The assignors were also to deliver free of charge to the assignee the publicity material photo- graphs, logos, trade mark, designs, etc. as set out in paragraph 4.

(2.) It is the contention of the company that they advertised and pursuant to the advertisement they have incurred losses. It is further contended that the Dialogue track and International Sound track has not been given. It is contended that this is the practice of the trade and need not necessarily form part of the agreement.

(3.) A perusal of clause 4 of the agreement would show that it is for the assignee to demand from the assignor the material as set out in clause 4. In the instant case, there is nothing on record to show that there was any demand made by the assignee on the assignor. The other aspect is that the assignee is pleading a trade practice which does not form part of the contract. It is contended that this is intrinsic to every agreement.