ASN 1 Appeal-636.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.636 OF 2011 UTV Software Communication Ltd. ..Appellant. Vs. Asia Digital Entertainment Pvt. Ltd. and anr. ..Respondents. Mr.Virag Tulzapurkar,Sr. Advocate i/by DSK Legal for the Appellant. Mr. S.U.Kamdar along with Ms. Pooja Patil i/by A.N. Mayekar for the Respondents. CORAM : MOHIT S. SHAH, C. J. AND SMT. ROSHAN DALVI, J. DATE : 27 September 2011 PC: This appeal is directed against the order dated 20 August 2011 passed by the learned Trial Judge of this Court declining to grant ad interim relief in Arbitration Petition No.583 of 2011 filed by the appellant under Section 9 of the Arbitration and Conciliation Act,1996. 2 The appellant seeks interim relief restraining the respondents from exhibiting, releasing, displaying, communicating to the public anywhere in the world, an English film titled “A Common Man” or any film by any name which is a remake of the Hindi Film “A Wednesday” or any part thereof and for other ancillary/consequential reliefs. ASN 2 Appeal-636.sxw 3 The learned Trial Judge has narrated in detail e-mail correspondence between the parties whereby as many as five drafts were sent by the appellant-petitioner. The changes suggested by the parties were put in the track mode after the 5th draft which did not include clause 2.2 of the final agreement. According to the respondents, by a telephonic conversation, the respondents requested the appellant to amend the agreement so as to add the right to dub and subtitle the new film. The respondents acted accordingly. The appellant added that right in Clause 3.1 in the the 6th draft of the agreement which was e-mailed on 27 May 2011 at 1.24 p.m. and the same was forwarded with the note “Please check the revised agreement”. This draft was not in track mode. The respondents’ attention was not invited to that Clause in the e-mail. The respondents sent reply on the same day at 1.47 p.m. i. e. within 23 minutes on the appellant’s e-mail and specifically referred to Clause 3.1 as also Clause 9.4 which also related to dubbing and subtitling rights and which required to be amended. This the respondents did in red and specifically drew attention of the appellant in that behalf. 4 The appellant amended the final draft by incorporating therein Clause 2.2 also. The appellant never made any reference to such addition in the cryptic e-mail through which it was forwarded. Hence the attention of the respondent was not even drawn to it and the respondent cannot be bound by such a term of the contract, unilaterally inserted therein. ASN 3 Appeal-636.sxw 5 The learned Trial Judge has therefore, rightly drawn inference that the respondents attention was not invited to the disputed Clause 2.2. The respondents’ e-mail dated 27 May 2011 referred to only clauses 3.1 and 9.4. This fact supports the respondents’ contention that during the telephonic conversation, the only modification that was agreed upon was with respect to clause 3.1. The respondents were, therefore, justified only to look for this alternation in the draft and therefore, commented only upon the same, which was agreed upon during the telephonic conversation. The learned Trial Judge has also noted that it was not even the appellant’s case that either during the telephonic conversation or at any time whatsoever prior or subsequent thereto, the appellant had so much as mentioned anything about the provisions of clause 2.2 viz. that non Sri Lankan actors could not be engaged. 6 We are, therefore, in agreement with the findings of the learned Trial Judge that the respondents’ contention that clause 2.2 was introduced without any intimation to the respondents. 7 In view of the above, when the respondents had not agreed to clause 2.2 as their attention was never brought to the said clause after as many as previous five draft agreements having been exchanged between the parties, we find no reason to interfere with the impugned order. ASN 4 Appeal-636.sxw 8 The learned Trial Judge has also held that the balance of convenience is in favour of the respondents because the respondents had gone ahead with the production. 9 In view of the above, we find no merit in the appeal. Appeal is therefore, dismissed. 10 At this stage, the learned counsel for the respondents submitted that the appellant may be directed to maintain the status quo as of today. Considering the facts and circumstances of the case, the prayer made by the learned counsel for the appellant is rejected. CHIEF JUSTICE SMT. ROSHAN DALVI, J.