IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 WP(C).No. 21565 of 2008(P) -------------------------------------- O.S. NO.1003/2007 OF THE IIND ADDL. SUB COURT, ERNAKULAM. ....... PETITIONER: ------------------- INDU.I.P, W/O. SATHEESH, NANIKESH, SHENOY ROAD, KALOOR, KOCHI-17. BY ADV. SRI.P.RAVINDRAN (SR.) RESPONDENT: ----------------------- O.V. PRASANNAN, S/O. VELAPPAN, ONAKKAVIL HOUSE, MULANTHURUTHY.P.O, MULANTHURUTHY VILLAGE, KANAYANNOOR TALUK, ERNAKULAM. BY ADV. SRI.SRILAL WARRIAR(ADV.COMMISSIONER) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2008, ALONG WITH WP(C) . NO.21824 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.21565 & 21824 of 2008 ------------------------------- Dated this the 21st August, 2008. J U D G M E N T Petitioners are the plaintiffs in O.S.No.1002 of 2007 and O.S.No.1003 of 2007, on the file of II Additional Sub Court, Ernakulam. The suits were instituted for realisation of the amount due to them. Petitioners are the mother and daughter. Respondent is the producer of “SMS – A short message for Sweet Hearts”. Learned Sub Judge has originally granted an order of temporary injunction restraining the release of the film and also an order under Rule 5 of Order XXXVIII of Code of Civil Procedure attaching the film prints including the negatives. Respondent filed an application with a combined prayer of vacating the order of attachment as well as the order of injunction, which was dismissed by the trial court. W.P.(C) Nos.13460 and 13463 of 2003 were filed before this Court challenging that order. As per Ext.P6 judgment, this Court directed the trial court to consider the feasibility of releasing the W.P.(C) Nos.21565 & 21824 of 2008 2 film as the claim of the petitioners is only for security of the amount, which ultimately be allowed to be recovered by the decree in the suit. Subsequent to the said order, learned Sub Judge heard the parties and passed Ext.P8 order. Under Ext.P8 order, respondent was permitted to release the film and Advocate Sreelal.N.Warrier was appointed as the Commissioner. By the order, permission was granted to release the film under the banner 'Adithi Movie Release' and respondent was directed to open an account in a nationalised bank in Ernakulam city and to deposit the collections in that account and it was further directed that out of the amount so deposited, Rs.15 lakhs each shall be deposited before the court as security for the amount claimed in the respective suits. The respondent was directed to submit a Daily Collector Report (DCR) and respondent was also directed to see that film is released in maximum number of theaters and respondent was prohibited from withdrawing any portion of the collection amount before the security amount to be deposited in court is made available in the account. The plaintiffs filed these writ petitions challenging Ext.P8 order. W.P.(C) Nos.21565 & 21824 of 2008 3 2. Learned senior counsel appearing for the petitioners, learned counsel appearing for the respondent and the Advocate Commissioner Sri.Sreelal N.Warrier were heard. 3. Though learned senior counsel appearing for the petitioner challenged Ext.P8 order and the permission granted to release the film, on hearing the counsel and considering the entire facts and circumstances, I do not find it necessary to interfere with the said direction. The claim of the petitioners is only for the security of the amount claimed in the suit. If film is not released, it cannot be said that there would be security for the plaint claim. Therefore, in the interest of petitioners themselves that the film is released and sufficient amount is procured, so that ultimately if the suit is to be decreed, there would be sufficient funds available to them to realise the decree debt. The grievance raised by the learned senior counsel is on the feasibility of collecting the amount. To find out the said feasibility, counsel on either side and the Commissioner were heard and their respective suggestions were heard and in the W.P.(C) Nos.21565 & 21824 of 2008 4 light of the suggestions, some modifications are to be made to Ext.P8 order passed by learned Sub Judge. While permitting the respondent to release the film under the banner 'Adithi Movie Release', sufficient precaution is to be taken that entire collection is made available to the Commissioner and the respondent shall not get an opportunity to take any portion of that amount. For that purpose, the following additional directions are issued. 4. The Advocate Commissioner shall get the standard agreement executed by the respective theater owners/authorised persons/person in charge, but in addition to the standard form, the following provisions are also to be made. 5. Each of the theater owners/authorised persons/person in charge, shall furnish the details of collections of each day to the Commissioner either on the night of the same day or on the next morning. The theater owners/authorised persons/person in charge, shall deposit the daily collection after deducting the amount due to them inclusive of local taxes, to the State Bank of India Branch in the account of the Commissioner. W.P.(C) Nos.21565 & 21824 of 2008 5 The Advocate Commissioner shall open an account in any of the branches of State Bank of India at Ernakulam and furnish the account number to the theater owners/authorised persons/person in charge, to enable them to deposit that amount in that account. The commissioner shall see that the amount required to be deposited each day by the theater owners/authorised persons/person in charge, is deposited in his account, as stated earlier, and if not, immediate necessary steps are to be taken. 6. The Commissioner shall furnish a details of the collection once in a week before the Sub Court with copies to the respective counsel. A copy of this standard agreement with the necessary conditions stated earlier shall be filed before the Sub Court with a copy to the counsel and if any modification is to be made, parties are at liberty to approach the Sub Court. When the amount deposited by the respective theater owners/authorised persons/person in charge, reaches Rs.30 lakhs, Commissioner to file a report before the Sub court and thereafter the trial court to relieve the Commissioner from office W.P.(C) Nos.21565 & 21824 of 2008 6 work. The Commissioner shall also see that film is released in additional theaters and as and when possible. 7. Commissioner has originally submitted a list of 15 theaters were the film could be released. But the Commissioner submitted today that he has made arrangements to release the film on some additional theaters also. Commissioner shall see that film is released simultaneously in as many theaters and as far as possible. The initial expenses are to be met by the respondent and Commissioner is entitled to remuneration to be fixed by the Court. The writ petitions are disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.