IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 FAO.No.54 of 2009 --------------------- (AGAINST ORDER IN I.A.No.1364/08 IN O.S. No.3/2008 DATED 30.10.2008 OF ADDITIONAL DISTRICT JUDGE, KOTTAYAM) --------- APPELLANT/IST RESPONDENT/IST DEFENDANT: ---------------------------------------------------- V.SOMANATH, S/O.VELAYUDHAN, PROPRIETOR, V.S.PRODUCTIONS, No.14, KAYYADASPURA, 8TH CROSS, C.V.RAMAN NAGAR, BANGALORE 752, D-4TH CROSS, AIRVIEW COLONY, HAL.P.O, BANGALORE - 560 017. BY MR.JOMY GEORGE, ADVOCATE. MR. NOBLE MATHEW, ADVOCATE. MR. BENNY M.J., ADVOCATE. MR. P. REJINARK, ADVOCATE. MR.LITHIN THOMAS, ADVOCATE. RESPONDENTS/PETITIONER AND 2ND RESPONDENT/ PLAINTIFF & 2ND DEFENDANT: ---------------------------------------------------------- 1. BENNY.P.JOHN @ BENNY ASAMSA, S/O.P.T.JOHN, MAMPARAMBILPEZHATHOLIL HOUSE, MADAPPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT. 2. THE CENSURE OFFICER, CENTRAL BOARD OF FILM CERTIFICATION, THIRUVANANTHAPURAM. BY MR.M.C.ANTONY, ADVOCATE, FOR R1. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------ F.A.O. No.54 OF 2009 ------------------------------------------ Dated this the 3rd day of March, 2009. J U D G M E N T Kurian Joseph, J. This is an appeal filed against the order dated 30.10.2008 in I.A.No.1364/2008 in O.S.No.3/2008 on the file of the Additional District Judge, Kottayam. As per the impugned order, an order of injunction was issued restraining the first defendant from exhibiting publicly or privately, selling, promoting, entering into film festivals, advertising or producing in any form or medium wholly or in part the film “Brahmastram” in India or elsewhere. There was also an injunction restraining the second defendant from giving censorship certificate to the said film for public exhibition. The first defendant has thus come up in appeal. 2. According to the plaintiff, there was an agreement between the plaintiff and the first defendant. As per the same, an amount of Re.1 lakh (Rupee one lakh only) was to be paid for the story written by the plaintiff. As per the agreement, the F.A.O. No.54/2009 2 plaintiff was to be the Director also. Remuneration to the tune of Rs.4 lakhs (Rupees four lakhs only) was also fixed for the Directorship. The allegation is that the agreement was violated. The plaintiff was removed from the Directorship and that there is deviation in the story introducing new theme, distorting the story written by the plaintiff. 3. According to the appellant-first defendant, the suit itself is premature. Whether there is deviation/distortion is a question to be decided only after the release of the film. It is also contended that there is no violation of agreement. It is further submitted that there is serious dispute on the terms of understanding between the parties. According to us, these are all matters for the parties to pursue at the time of trial of the suit. Weighing three well settled principles, i) strong prima facie case ii) balance of convenience, and iii) irreparable injury, we are of the view that the interests of both sides can be protected by appropriately modifying the order of injunction. In that view of the matter, we do not think that we should go into the various contentions taken by the parties as to whether the suit itself is maintainable, as to whether the suit is premature, as to whether F.A.O. No.54/2009 3 injunction can be granted in view of the relief regarding damages etc. 4. As far as the plaintiff is concerned, admittedly, the value fixed for his story is Re.1 lakh (Rupee one lakh only). According to the plaintiff, there is another remuneration for the Directorship. We find from the plaint that the plaintiff had claimed damages as far as the alleged violation of the agreement on Directorship. Therefore, what remains is only remuneration regarding the story. True, learned counsel for the respondent- plaintiff has vehemently contended that his injury cannot be equated in terms of money since the name and reputation cannot be assessed in terms of money. But, as observed by us above, whether there is deviation/distortion of story is a matter yet to be seen and if so, what is the consequence of the same is also another issue. Any observation by the court at this juncture is bound to affect the outcome of the trial and hence we refrain from making any observation on those aspects. We may also note in this context that a suggestion was put to the respondent as to whether the film can be released after deleting his name F.A.O. No.54/2009 4 from the title. On instruction, it was submitted by the counsel that he was not willing for the same. 5. Inviting reference to the decision of the Supreme Court in Wander Ltd. and another vs. Antox India P.Ltd (1990 (supp) Supreme Court Cases 727), it is stated that the plaintiff would suffer irreparable injury and hence the interlocutory order is liable to be maintained. Particular reference is given to paragraph 9 of the judgment, which reads as follows: “Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated “...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. F.A.O. No.54/2009 5 The court must weigh one need against another and determine where the 'balance of convenience' lies.” The interlocutory remedy is intended to preserve in status quo, the rights of the parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted”. 6. But, on facts we find that going by the version of the plaintiff himself, he has written the story, that story was given to the first defendant, another person made script for the film, on the basis of the script thus made by that person (he is not a party to the suit) the film was directed by the plaintiff, he continued to be the Director till the entire shooting is over and the disputes have been raised only when there was an alleged violation of agreement, and the plaintiff was removed from the Directorship. In that view of the matter only we appreciated the averments in the plaint particularly the fact that the plaintiff himself has coined a relief of compensation for breach of F.A.O. No.54/2009 6 agreement. Hence, we are afraid the decision referred to above may not be of any help to the plaintiff at this stage on considering the balance of convenience. 7. We are of the view that the balance of convenience is strongly in favour of the appellant at this stage since according to the appellant, injunction has been issued when the film was about to be released. The plaintiff is not without any remedy even if there is mutilation/distortion and there is any other violation of the terms of the alleged agreement. Therefore, we set aside the order under appeal. The film can be released on the appellant depositing an amount of Re.1 lakh (Rupee one lakh only) before the Additional District Judge, Kottayam. This appeal is disposed of as above. KURIAN JOSEPH JUDGE S.S.SATHEESACHANDRAN JUDGE smp F.A.O. No.54/2009 7 KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. F.A.O. No.54 OF 2009 J U D G M E N T 03.03.2009