MOHD LATIF CHOUDHRY Vs. AMRITKALA BAVEJA

JUDGEMENT

(1.) THESE two petitions are directed against art order of interim injunction made in appeal by the second Additional District Judge of Indore in an action brought by amritkala against the two petitioners, for a prohibitory injunction restraining mohammad Latif Choudhary from distributing the film 'jivan-Sathi' anywhere in central India territory inclusive of Bhopal and Vindya Pradesh and for a mandatory injunction directing M/s D. S. Films to deliver the prints of the said film to amritkala, By the order sought to be revised, the second Additional District Judge of Indore has restrained Mohammad Latif Choudhary from distributing the film 'jivan Sathi' to any other person in the Central India territory and from exhibiting it himself or through any person in the said territory, and the applicant M/s D. S. Films from handing over the prints of the film to Mohd. Latif Choudhary or to anyone else except through the plaintiff.

(2.) THE undisputed material facts are that on 19-11-1956 an agreement was concluded between M/s D. S. Films of Bombay and Mohammad Latif Choudhary as owner of M/s Azad Film Distributors, Indore, whereby the right of distribution, exhibition and exploitation of the picture 'jivan-Sathi' in the territory of Central india and Rajasthan was given on certain terms and conditions exclusively to M/s azad Film Distributors who were described in the agreement as "agents" of the producers M/s D. S, Films. Thereafter M/s Azad Film Distributors appointed M/s Krishna Film Exchange of jaipur as sub-distributors for distribution, exhibition and exploitation of the said picture in the territory of Rajasthaa State. Subsequently, Mohammad Latif choudhary borrowed from the plaintiff Amritkala some amounts from time to time to pay the amount that he was required to remit to M/s D. S. Films under the agreement Out of this amount, a sum of Rs. 3151/-remained due from Mohammad latif Choudhary to Amritkala. In repayment of this amount, Mohammad Latif choudbary issued in favour of Amritkala a post-dated cheque for Rs. 3151/ -. The cheque was given on 4-4-1957 and was due for payment on 25-4-1957. At the time of the giving of the cheque, Mohammad Latif Choudhary, as proprietor of M/s azad Film Distributors, addressed a letter to the plaintiff Amritkala wherein he stated:

(3.) THE suit was instituted on 14-6-1957. On the same day, an application for ad interim injunction was made. The trial Judge first made an ex parte order of injunction but later on vacated it after hearing all the parties. He found it difficult to express any opinion at that stage whether the plaintiff had a prima facie case. According to him, the case did not involve performance of any negative agreement as what the plaintiff was seeking was to enforce an affirmative agreement, that the balance of con-venience lay in refusing the order of injunction prayed for by the plaintiff, and that she was not likely to sustain any irreparable injury if the injunction were withheld. The plaintiff then appealed to the Court of the District Judfe of Indore. The Second additional District Judge of Indore, who heard the appeal, took the view that on the dishonourment of the cheque issued by Mohd. Latif Choudhary and on his failure to pay Rs. 3151/- on the due date to the plaintiff, she prima facie became the full owner of the distribution and exhibition rights in the film Jivan Sathi for the central India territory; that under the agreement concluded between M/s Azad film Distributors and M/s D. S. Film of Bombay the possession of M/s Azad Film distributors was not that of an agent but of "an owner of distributing rights"; that, therefore, Mohd. Latif Choudhary as owner of M/s Azad Film Distributors could transfer the rights to the plaintiff without the consent of M/s D. S. Films and even if the contract between M/s D. S. Films and M/s Azad Film Distributors, whether treated as a contract of agency or otherwise, required the consent of the producers M/s D. S. Films for assignment, the consent was implicit in the terms of the contract; and that the material on record indicated an implied consent of the producers to the assignment of the contract in favour of the plaintiff. Accordingly, the learned appellate Judge held that the plaintiff had a prima facie case to go to trial; and that as the contract between the two defendants and the assignment of it in favour of the plaintiff involved two negative covenants, namely, that the defendant M/s Azad Film Distributors shall not distribute the film for exhibition in Central India territory and that M/s D. S. Films shall not appoint any other party or parties or persons except the plaintiff for distribution, exhibition or exploitation of the picture within the Central India territory, no question of any balance of convenience or inconvenience or of damage or injury would arise. He also found that the plaintiff would in fact suffer irreparable injury if the defendants were not restrained from distributing the picture through anyone else except the plaintiff in Central India territory. On these findings, the learned Second Additional district Judge made the order under revision.