IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 AS.No. 527 of 1996(B) --------------------------- OS.237/1994 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S)/2ND DEFENDANT IN O.S.237/94 -------------------------------------------------------- M/S. GLORIA FILMS, MAHAKAVI BHARATHIYAR ROAD, KOCHI – 682 011, REPRESENTED BY MANAGING PARTNER, E.C. ANTO, S/O. LATE CHAKKUNNY, AGED 38, ELANJIPPILLY HOUSE, MELADOOR, THRISSUR. BY ADV. SRI.K.C.CHARLES RESPONDENT(S)/PLAINTIFF AND 1ST DEFENDANT IN O.S.237/94 ----------------------------------------------------------------------------- 1. V.S.SIDHIR KUMAR, 13/995, MUDALIYAR BHAGAM, KOCHI – 682 005. 2. IGNATIUS ILLIMOOTTIL, PROPRIETOR, AMALACHITRA, VIII/414, MAIN ROAD, PALA – 686 575. R1 BY ADVS. SRI.V.P.RAGHURAJ, SUBAL PAUL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AS No.527 of 1996-B ------------------------------------------------------------------------ Dated 30th November 2010 Judgment Thottathil.B.Radhakrishnan, J. The second defendant in a suit for recovery of money, is the appellant. 2. The plaintiff commenced production of a cinematographic film. He, thereafter, transferred his interest in favour of the first defendant for consideration to be paid by him. However, the first defendant did not pay the plaintiff the amounts due. Resultantly, the plaintiff sued the first defendant. It appears that the first defendant was also facing a situation where the plaintiff would resort to various means including by moving the video and audio recording studios to ensure that the first defendant pays the plaintiff the amounts due. This led to a negotiation under which Ext.A3 was entered into between the plaintiff and the defendants, the second defendant agreeing to pay AS 527/96 2 off the plaintiff. Even before the execution of Ext.A3, the second defendant had got for himself the right to exhibit the film. The court below decreed the suit against both the defendants. 3. In this appeal by the second defendant, it is pointed out that Ext.A3 was the result of coercion and so, it is not enforceable. Secondly, it is argued that Ext.A3 is not supported by sufficient consideration. Thirdly, it is argued that the entire transaction would show that the second defendant occupies the status of a guarantor as regards the transaction between the plaintiff and the first defendant and therefore, the plaintiff not having sued the first defendant on the basis of the independent transaction between him and the plaintiff, the suit against the second defendant is unsustainable. 4. Insofar as the plea of coercion is concerned, such a case is attempted to be built up with reference to the institution of the earlier suit by the plaintiff as against the first defendant and also the threat that was held out to AS 527/96 3 the exhibition of the film when the transaction between the parties apparently failed and the plaintiff could not get his money. This does not constitute a vitiating element to be sustained as coercion. Insofar as the sufficiency of consideration is concerned, the court below has rightly held that Ext.A3 is supported by consideration and the nature of the transaction between the parties does not require any probe as to the sufficiency or otherwise of the consideration for Ext.A3. In this view of the matter also, the impugned decree stands. The transaction is purely commercial. The wisdom of the parties as to the terms of the contract including consideration is not a matter that the court would re-write. Insofar as the plea of the appellant that the transaction was only one in which he was a guarantor, we are clear in our mind that the transaction was not one under which the second defendant stood as guarantor for any transaction between the plaintiff and the first defendant. It was essentially a contract between the plaintiff and the second defendant and the terms of Ext.A3 AS 527/96 4 clearly spell privity of contract between them. Therefore, notwithstanding that the plaintiff had pleaded that the second defendant came forward to support the liability of the first defendant, the plaintiff had an independent right to sue based on Ext.A3, as against the second defendant. At any rate, the decree having been passed jointly and severally against both the defendants, we do not find any ground to hold that Section 141 of the Contract Act applies in favour of the second defendant in this regard. 5. The learned counsel for the appellant then argued that the rate of interest granted by the court below is on the higher side. We find that the rate of interest granted is 12%. Ends of justice would be satisfied if the rate of interest is fixed @ 6% post decree. In the result, the impugned decree is modified to the limited extent of confining the post decree interest to be AS 527/96 5 at 6% instead of 12%. The impugned decree is confirmed otherwise. No costs. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AS 527/96 6