MANASSEH FILM CO BY PARTNERS A THIRUVENGADA MUDALIAR AND HIS MINOR SON SOUNDARAJAN REPRESENTED BY HIS FATHER A THIRUVENGADA MUDALIAR Vs. GEMINI PICTURE CIRCUIT, PRODUCERS AND DISTRIBUTORS OF MOTION PICTURES

JUDGEMENT

(1.) The plaintiff is a firm called Manasseh Film Company and its only partners are A. Thiruvengada Mudaliar and his undivided minor son Soundararajan. The suit has been brought for the recovery of a sum of Rs. 4500 which the plaintiffs paid to the defendants - Gemini Pictures Circuit - in connexion with the hiring of a picture called Baktha Naradar which was being produced by the defendants at Madras and which the plaintiffs wanted to exhibit in the Federated Malay States, Singapore and Penang. The hiring was to be for a period of three years in consideration of a payment of Rs. 9000. It is stated in the plaint that the understanding between the parties was that the delivery of the picture was to be on 1 March 1942. Owing to the outbreak of war between Japan and Great Britain, the contract became impossible of performance and hence the plaintiffs seek a return of the sum paid by them together with interest, which they have roughly fixed at Rs. 5050, apparently to bring the suit in the High Court, as otherwise it would have had to be instituted in the City Civil Court with heavier court-fees. The main defence is that there was no such frustration of venture as to justify the plaintiffs in demanding a return of the money paid by them. The defendants do not admit that delivery of the picture was to be on 1 March. They also put the plaintiffs to proof of the fact that the firm consisted of no others besides Thiruvengada Mudaliar and his undivided son. At the trial, Mr. V. C. Gopalaratnam appearing for the defendants wanted to raise a point of law, namely, that as the plaintiffs were alien enemies according to their own showing in the plaint, the suit could not be maintained. He filed a Judge's summons for this purpose and I allowed him to raise the question.

(2.) On the evidence given by A. Thiruvengada Mudaliar for the plaintiffs and none was examined for the defence it is clear that he and his undivided minor son are the only proprietors of the firm. There was another partner called Manasseh prior to February 1940; but the partnership was then dissolved. He had also stated that it was agreed that the picture should be delivered by 1 March 1942. Mr. Gopalaratnam conceded very properly that he could not maintain the position that there was no frustration of adventure and that his clients were not under a liability to return the sum of Rs. 4500 which they had received in connexion with the exhibition and the exploitation of the picture in the Federated Malay States, Singapore and Penang. He would not have made this concession if the law was really as laid down in Chandler V/s. Webster (1904) 1 K.B. 493. But the latest decision of the House of Lords in Fibrosa Spolka Akeyjna V/s. Fairbairn Lawson Combe Barbour Ltd (1942) 2 ALL. E.R. 122, has laid down that the proposition of law in Chandler V/s. Webster (1904) 1 K.B. 493 could not be supported and that the decision should be overruled.

(3.) Therefore the learned advocate for the defendants had to pin his faith on the new objection that the plaintiffs were alien enemies. It is for the defendants, who say that the plaintiffs are alien enemies, to make out that there are facts and circumstances which will bring them within this description in the eye of the law. The allegations in paras. 3 and ? of the plaint were relied on in this connexion. They are to the effect that the company was formed in the Straits Settlements at Singapore to distribute and exhibit talkies and movies, that the plaintiffs had been residents of Singapore for a long period, and that, when plaintiff 1 came over to Madras in or about October 1941, he had authorised one Mr. Wong Si Loong by means of a power of attorney to act on his behalf in connexion with the affairs of the company during his absence from Singapore. The suit contract was concluded at Madras in the month of November 1941, as the receipt for the payment of Rs. 4500, marked Ex. P-l, dated 4th November 1941, would show. In his affidavit dated 30 June 1942, in support of the application for permission to act as the next friend of his son, plaintiff, 1 stated once again that he and his son were the "proprietors of Manasseh Film Co., formed and run by us at Singapore." It was urged that on these statements made by the plaintiffs themselves they were alien enemies and that they could not maintain the suit.