PRASAD FILM LABORATORIES Vs. PRAGNYA PICTURES AND ANOTHER

JUDGEMENT

(1.) The plaintiff being aggrieved by the order of the learned Civil Judge (Senior Division), first Court, Cuttack, rejecting its prayer for attachment before judgment has preferred the present revision.

(2.) The plaintiff, a public limited company, owns a laboratory where the films after shooting are processed for exhibition. Defendant No. 1 is the proprietor of M/s. Pragnya Picture which is engaged in production of motion pictures. It produced one Oriya film "Shesti" and got the same processed in the plaintiff's laboratory. Six prints of the said Oriya film were processed and sent to defendant No. 1 through railway under Railway Receipt No. 85176 D/- 29-9-89 together with a for Rs. 4,38,318.27 p. It is alleged that when the plaintiff did not receive payment, it made necessary enquiries and could come to know that the consignment of the prints had been delivered to defendant No. 1 illegally by the railway authorities. Regarding such unauthorised delivery of the consignment, on a report being made to the Railway Police, a case was registered, in course of investigation of which, the officer-in-charge intimated the plaintiff to depute someone to collect a Rs. 2,27,590.27 p. deposited by defendant No. 1 on production of the original railway receipt. Accordingly the plaintiff through its agent collected the said amount. The balance of Rs. 1,77,590.27 p. remained due and in spite of several correspondences neither the railway authorities nor defendant No. 1 could take any initiative to pay up the same. Meanwhile, Managing Director, Orissa Film Development Corporation, defendant No. 2, in order to telecast the said film in Doordarshan through national network requested the plaintiff to prepare a Hiband Umatic Tape. To his such request, plaintiff set down a condition that before supply of the tape he should clear up the dues together with interest outstanding against defendant No. 1. Defendant No. 2 agreed to it and accordingly intimated the plaintiff in writing that after adjustment of its own loan dues from the royalty to be received from Doordarshan, if any amount remains available, it could pay up the plaintiff's dues. In view of such premise plaintiff prepared Husband Umatic Tape and supplied to defendant No. 2 whereupon the file was telecast. Defendant No. 2 received a sum of Rs. 7,82,090.00 from the Director, Doordarshan as royalty and after adjustment of Rs. 3,87,452.25 p. towards its term loan dues, the rest were available with it. As agreed to earlier, the plaintiff's dues ought to have been paid by defendant No. 2, but it did not. This ultimately led the plaintiff to file the present suit against both the defendants. In the said suit the plaintiff filed a petition under Or. 38, R. 5, C.P.C. for attachment before judgment of the amount available with defendant No. 2.

(3.) On being noticed to show cause as to why they should not furnish security as provided in O. 38, R. (1), C.P.C.. both the defendants filed their objections. Challenging the maintainability of the petition, defendant No. 1 urged that it was not bound by any assurance/promise if any, made by defendant No. 2 to pay the alleged dues. The amount available with defendant No. 2, which the plaintiff seeks, to attach, belongs to defendant No. 1 which defendant No. 2 is bound to pay back to it. Defendant No. 2 by filing separate objection urged, inter alia, that it did not assure/promise to pay the disputed amount to the plaintiff. It only informed the plaintiff that after adjustment of the term loan advanced to defendant No. 1 if any amount is available, it would pay up the plaintiff's dues. But since defendant No. 1 disputed the claim of the plaintiff and issued pleader's notice, it could not be possible to keep the promise.