BHARAT BIKASH HALDER Vs. BHARAT LUXMI PICTURES

JUDGEMENT

(1.) The plaintiff claims a declaration that the defendant is not entitled to any payment under an agreement dated 24 December 1935, a refund of Rs. 6000 paid thereunder, and damages for breach of that contract. The agreement was in writing and provided that, in consideration of a payment of Rs. 11,001, the defendant would allow the plaintiff to use his cinematograph studio, equipment and staff for periods therein stated, for the purpose of producing a Bengali talking picture.

(2.) The plaintiff contends that there was an implied warranty that the equipment so hired was suitable for the purpose required, and be relies also upon the provisions of Section 150, Contract Act, and contends that the defendant was bound to disclose to the plaintiff faults in the goods bailed, of which he was aware, and which materially interfered with the use of them, and that he was responsible for the damage arising to the plaintiff directly from such faults, whether he was aware of them or not. The plaintiff alleges that the equipment was defective and was not fit and suitable for the purpose for which it was hired, as the defendant well knew, and that as a result, the two pictures produced therewith by the plaintiff were- failures owing to bad photography and bad sound recording, and that by reason thereof he has suffered loss and damage.

(3.) The defendant states that the letting was of the studio with such equipments as were then therein, that is to say, he denies that there was any such implied warranty. Further, he says that the equipments and apparatus were fit and suitable for the purpose for which they were let-out, and denies that there were any faults therein. Alternatively, he says that if there were any such faults, he was not aware of them, and that there was waiver on behalf of the plaintiff, because he proceeded with the production of his picture with notice of such faults. Further, he denies that the pictures were failures; alternatively he says that their failure was not due to bad photography or bad sound recording. When opening his case learned Counsel on behalf of the plaintiff, on being asked by the Court to state more definitely what were the defects about which his client complained, and upon which he sought to rely, stated that ha relied exclusively upon the contention that a part of the apparatus called the oscillograph did not function properly. Thereupon the following issues were framed and settled: (1) Was there any such implied warranty? (2) Was the equipment defective or badly adjusted? (3) If so, were such defects known (a) to the defendant, (b) to the plaintiff, or could they have been known to the plaintiff if he had exercised reasonable diligence? (4) Was there waiver by the plaintiff in respect of such defects?