RAMA MAHAL Vs. R RAJASEKHAR

JUDGEMENT

(1.) These two appeals are directed against the judgment and decree dated 5.3.1999 in OS No.36 of 1997 on the file of the Senior Civil Judge, Srikalahasthi, wherein the suit filed by the respondent herein for recovery of Rs.2,50,000/- with interest at 24% per annum was decreed and the counter claim made by the appellants herein to pass a decree in their favour for a sum of Rs.1,05,526/- was dismissed. As the two appeals arise out of the same judgment and decree and between the same parties, they are heard together and they are being disposed of this common judgment.

(2.) The respondent-plaintiff in both the appeals, filed suit OS No.36 of 1997 with the following averments: The plaintiff was carrying on business in exhibition of motion pictures. The first defendant is the partnership firm for which the 2nd defendant is the Managing Partner and defendants 3 to 5 are the partners. The 3rd defendant is the wife, defendants 4 and 5 are the sons of 2nd defendant and they constituted joint Hindu family. On 30.6.1994 the plaintiff entered into an agreement of lease with the defendants 2 to 5 representing the first defendant firm for the purpose of screening and exhibiting motion pictures in Sri Rama hall belonging to the first defendant, on share basis. As per the terms of the agreement, in consideration of the exhibitors allowing playing time, the plaintiff shall pay a sum of Rs.2000/- per day for four shows to the defendants from out of the daily box office collections. On the date of agreement, the plaintiff paid a sum of Rs.2,50,000/- to the defendants as a deposit, which is refundable without interest at the time of termination of lease period. Initially the lease period was fixed at 11 months, which was renewable once in every 11 months or up to three years commencing from 30.6.1994. The plaintiff deposited the amount of Rs.2,50,000/- by way of demand draft bearing No.877888 dated 28.6.1994 for Rs.1,50,000/- and another demand draft bearing No.877906 dated 29.6.1994 for Rs.1,00,000/- drawn on Andhra Bank in favour of first defendant firm. The 2nd defendant received the drafts as Managing Partner and passed a receipt. Due to personal inconvenience and on account of ill health, the plaintiff decided to discontinue the business of exhibiting the motion pictures from 1.6.1997. Accordingly he informed the defendants one month in advance and requested them to refund the deposit amount of Rs.2,50,000/- on or before 1.6.1997. The plaintiff stopped exhibiting motion pictures from 1.6.1997 in the theatre of first defendant. As the amount was not refunded, he sent a legal notice on 4.6.1997 calling upon the defendants to return the deposit amount forthwith. The notice was got returned un-served with the postal endorsement that addressee was continuously absent for seven days, though the defendants were very much available at the address. As the limitation period was fast approaching, he issued another notice dated 27.6.1997 informing the defendants that he would be constrained to approach the Court for recovery of the amount, if they failed to return the amount. As the defendants wantonly evaded to refund the advance amount with a view to make wrongful gain for themselves and to cause loss to the plaintiff, the suit is filed for recovery of the said amount with interest at 24% per annum.

(3.) The first defendant filed written statement, which was adopted by the defendants 2 to 5 by filing a memo, contending in brief as follows: One R.Krishnamurthy, brother of the plaintiff, being the assignee on behalf of the plaintiff was the Manager of Sri Rama Cinema Hall and was getting the film boxes for and on behalf of the plaintiff from Film Distributors at Tirupati by entering into agreement with them and also signing the confirmation slips as lessee and exhibiting the films in the theatre. As per the terms and conditions of the agreement of lease dated 30.6.1994, the defendants are the exhibitors (lessors) screening the motion pictures supplied through the distributors (lessees) during the period of lease. The said R.Krishnamurthy did not pay the dues to number of film distributors and they referred the matter to the Chittoor District Film Distributors Association. The said association gave a notice to Krishnamurthy on 10.6.1997 demanding payment of the amounts due to ten distributors, totaling a sum of Rs.1,71,311/-. The plaintiff having knowledge of the amount due to the distributors instead of clearing the same got issued a legal notice dated 27.6.1997 terminating the lease period with effect from 30.6.1997 and stopped exhibiting the films from 1.7.1997. It is false that the plaintiff was not exhibiting the motion pictures in defendants' cinema hall from 1.6.1997. Even on 10.6.1997 the assignee of the plaintiff got confirmation slip from M/s Mahalakshmi Pictures for screening Telugu film. The plaintiff has not issued any statutory notice under Transfer of Property Act for termination of lease. Usually the distributors have to pay commission to the Chittoor District Film Distributors Association, but the plaintiff failed to pay the same. As the association gave a notice on 5.11.1997 demanding payment of commission of Rs.7000/-, first defendant paid the said amount on 12.11.1997. The total amount paid by the defendants to the film distributors and distributors association is Rs.1,11,296/-. Further the plaintiff has not paid the rent to the defendants for a period of 91 days from 1.4.1997 to 30.6.1997 at the rate of Rs.2000/- per day which comes to Rs.1,82,000/-. Further, R Krishnamurthy has taken a sum of Rs.50,000/- from one Nagarajachetty of Srikalahasthi on a pronote dated 26.1.1997, keeping the 2nd defendant as a guarantor and the said debt in a sum of Rs.62,230/- was discharged by the 2nd defendant. Thus the plaintiff and his assignee are due in a sum of Rs.3,55,256/- (Rs.1,82,000/- + Rs.1,11,296/- + Rs.62,230/-) to the defendants and without clearing the amounts due, the plaintiff and his assignee stopped screening of films from 30.6.1997 in violation of Clause (6) of the lease deed dated 30.6.1994. To the notice issued by the plaintiff on 27.6.1997, the defendants got issued a reply notice dated 7.7.1997 for which the plaintiff issued a rejoinder on 19.7.1997. The plaintiff is not entitled to recover the deposit amount of Rs.2,50,000/-. On the other hand, the plaintiff himself is liable to pay the balance amount of Rs.1,05,526/- (Rs.3,55,526/- - Rs.2,50,000/-) to the defendants and the defendants have made a counter claim for the said amount by paying necessary Court fees.