1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.4331 OF 2007 IN SUIT NO.2716 OF 2007 Rajkumar Santoshi ..Plaintiff. Vs. DMS Films Pvt. Ltd. and others ..Defendants. ..... Mr. S.U. Kamdar i/b M/s. Ranjit & Co. for the Plaintiff. Mr. H.N. Thakore with Ms. Agnes Buredia i/b M/s. Thakore Jariwala Associates for Defendants 1 and 3. .... CORAM: DR. D.Y. CHANDRACHUD, J. 25th January, 2008. P.C. : 1. This is a Notice of Motion under Section 8 of the Arbitration and Conciliation Act, 1996. The First and Third Defendants who have taken out the Motion have prayed that the suit be dismissed in view of an arbitration agreement signed between the Plaintiff and Defendants 1 and 3; that in the alternative all proceedings in the suit be stayed and that all disputes and differences between the Plaintiff on the one hand and Defendants 1 and 3 arising out of all the feature films referred to in the plaint and under the arbitration agreement which is annexed at Exhibit 1 to the affidavit in support of the Notice of Motion be referred to arbitration. In the alternative, the prayer is that all the 2 disputes and differences relating to a feature film “FAMILY” be referred to arbitration. 2. In deciding the Notice of Motion it would be of relevance at the outset to refer to the prayers in the suit instituted before the Court. The following reliefs have been sought in the suit : “a) that it may be declared by this Hon'ble Court that no amount is due or payable by the Plaintiff to the Defendant Nos.1 and 3 and the Defendant Nos.1 and 3 are not entitled to make any claim or demand whatsoever against the Plaintiff in respect of any of the pictures “RANVEER” retitled as “FAMILY”, “INSAAN”, “Production No.1” and “KHAKEE” directed by the Plaintiff and produced by the Defendant Nos.1 and 3; b) that this Hon'ble Court will be pleased to pass Order and Decree in favour of the Plaintiff against the Defendant Nos.1 and 3 for a sum of Rs.1,00,00,000/- (Rupees One Crore only) being the balance remuneration in respect of the picture originally titled “Ranveer” and thereafter retitled as “FAMILY” as per particulars of claim mentioned in Exhibit “L” to the Plaint together with interest thereon at the rate of 18% per annum from the date of the suit till payment and cost of the suit.” 3. The particulars of claim at Exhibit L are in respect of a claim of Rs. 1 Crore which the Plaintiff claimed is due and payable for a film which was originally titled as “RANVEER” and which according to the Plaintiff was retitled as “FAMILY” and was 3 produced by Defendants 1 and 3. 4. The arbitration clause which was relied upon in the Motion is contained in an agreement dated 28th October, 2003 under which the Defendant engaged the Plaintiff as a director of a film which was tentatively titled as Production No.1. Clause 12 of the agreement provides for a resolution of disputes to arbitration. Ex facie, the arbitration clause which is relied upon relates only to a feature film styled as Production No.1. The correspondence which has been annexed to the the affidavit in support of the Motion would show that Production No.1 was an independent project which had not been launched. The Plaintiff's letter dated 10th August, 2007 (Exhibit 5(a)) contains a statement that the film “RANVEER” was a joint venture project of the First Defendant with AB Corporation. On the other hand, Production No.1 was an independent project which had remained to be launched for which according to the Plaintiff an amount of Rs. 25 lacs was received. The First and Third Defendants in their reply dated 27th August, 2001 do not dispute the position that Production No.1 was an independent project which was not launched. In these circumstances, the prayer for a reference to arbitration is 4 manifestly without any foundation since a perusal of the correspondence would reveal that parties have at all material times treated and regarded Production No.1 as an untitled venture which was still to be launched. The alternative prayer in the Notice of Motion is for a reference to arbitration of all disputes in respect of the feature film “FAMILY”. Here again there is no arbitration clause that would govern any dispute in respect of the feature film “FAMILY”. In that view of the matter, having regard to the judgment of the Supreme Court in Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya1, the Motion would have to be dismissed. The Supreme Court has held that where a suit is commenced even in respect of a matter which partly falls in respect of an arbitration agreement and partly outside and which involves parties some of whom are parties to the arbitration agreement while some are not, Section 8 would not be attracted. There is no merit in the Notice of Motion which is accordingly dismissed. 1 (2003) 5 SCC 531.