DELUXE FILM DISTRIBUTORS LTD. Vs. SUKUMAR KUMAR

JUDGEMENT

(1.) THIS is an application for stayunder Section 34 of the Indian Arbitration Act. Theapplication is resisted on two grounds (i) theapplicant has taken steps in the proceedings and(ii) that the contract containing the arbitrationclause has been modified by subsequent agreementsto such extent that the arbitration clauses have become ineffective and that the arbitration agreement does not cover the disputes raised in thesuit.

(2.) THE suit is for the recovery of the sum of Rs. 2,43,804/13/4. The claim is under a contract for the distribution of a cinematograph film.The plaintiff is the Producer and the defendantNo. 1 is the Distributor. The film proved to bevery successful and had a long run in a largenumber of cinema houses. It is said that the boxoffice receipt was very heavy. After giving creditfor Rs. 10.000/ - paid by the defendant No. 1 tothe plaintiff there was due and owing to the plaintiff a large sum as claimed in the plaint. Thedefendant by his -solicitor's letter dated November24, 1958 contended that the amount due to theplaintiff would not be as much as claimed but would be only Rs. 1,01,048.18. The disputes between the parties not having been settled the plaintiff instituted the instant suit on May 4, 1959 andimmediately thereafter took out a Notice of Motion on May 6, 1959 for judgment on admissionunder Order 12, Rule 6 of the Civil Procedure Codefor the sum of Rs. 1,01,048.18. The notice wasserved on the defendant No. 1 on the same day. On May 11, the Motion appeared as a New Motion in the List of Motions before the learned. Interlocutory Judge when in the absence of the defendants the usual directions were given for filing affidavits. On May 13, 1959 Messrs. T. Banerji and Co. acting for the defendant No. 1 wrote a letter to the plaintiffs solicitor in the following terms :

(3.) IN answer to the said paragraph 22 of the affidavit -in -opposition one Dipchand Kankaria a director of the defendant company stated as follows in his affidavit -in -reply;