1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.2561 of 2007 In Suit No.1774 of 2007 M/s.Shantez & anr. .. .. Plaintiffs v/s. M/s.Applause Bhansali Films Pvt.Ltd. & ors. .. Defendants Mr.M.P.S . Rao with Mr.Rakesh Kumar i/by Legal Vision for Applicants. Mr.Shyam Mehta i/by Madekar & Co. for Plff.No.1 Mr.B. Colabawala i/by Madekar & Co. for Deft.Nos.2 to 4. Mr.Ashwin Shety i/by Khitan & Jayakar for Deft.No.5 . ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 13 th October, 2008 P.C. : 1. The Plaintiffs have applied for a judgment on admission under Order 12 Rule 6 of the Code of Civil Procedure against Defendants 1, 2 and 4, an order to furnish security in respect of the suit claim, for an injunction against these Defendants from selling or creating third party rights in respect of the distribution rights of the film “BLACK” (the said film) and for an order to deposit all future proceeds of the said film in Court. 2 2. The Plaintiffs have claimed damages for loss and destruction of certain antique pieces of furniture which were hired by the Defendants for the sets of the said film. A fire took place on the studio where the said film was shot on 18.2.2004. An Interim Survey Report was obtained. The Plaintiffs claim the value of the furniture from the Defendants. A list of the furniture hired to the Defendants was made on 13.2.2004, 5 days before the fire. A copy of the list is relied upon by the Defendants themselves showing its date. 3. The Plaintiffs have claimed the value of the goods from the Defendants. The hire charges have not been for a particular percentage of such value. In fact, the Plaintiffs claim that the goods being antique pieces had no market value. Their value would appreciate with the passage of time. 4. Based upon the Plaintiffs' claim, the Defendants have lodged their claim with the Insurance Company. The Plaintiffs contend that the said claim lodged by the Defendants tantamounts to an admission of the liability to make payment to the Plaintiffs. That appears to be an erroneous contention. A claim made to the Insurance Company may be upon a particular premise which may be erroneous. Such a claim may be inflated. Such a claim may be made upon the Insurance Company only because a claim is made upon the 3 insurer. Such claim would have to be proved before insured amount is disbursed. Hence simpliciter lodging the claim with the Insurance Company is not such admission of liability as would merit a judgment being passed thereon without any further trial. Prayer (a), therefore, cannot be granted. 5. The Plaintiffs require Defendants 1, 2 and 4 to jointly furnish security for the amount of the claim in the Suit. It is for the Plaintiffs to prove that claim. This would have to be done at the stage of trial upon each of pieces of furniture. Even, prima facie, the Plaintiffs have not shown that the precise amount claimed by the Plaintiffs is payable to the Plaintiffs. Of course, a list enumerates that the items of furniture have been hired by the Defendants from the Plaintiffs. The furniture is expected to have a very high value given the fact it has been specifically hired for certain sets to show the antiquity of the furniture. How much that would be would have to be determined in the Suit. That would be the amount that the Plaintiffs would be entitled to claim upon their loss. 6. It has been argued on behalf of the Defendants that the Defendants would be in the position of bailee and as such would be bound to take as much care of the goods bailed to 4 them as a man of ordinary prudence would, under the circumstances, take of his own goods of such bulk, quantity and value under the provisions of Section 151 of the Indian Contract Act. The Plaintiffs, therefore, would have to establish the lack of care if at all on the part of the Defendants in respect of the furniture hired by them. The Defendants, on their part, would have to show the reasonable care taken by them to see that inflammable wooden furniture is kept out of the hazard of the fire. 7. It is contended on behalf of the Plaintiffs that the Defendants have fraudulently caused the fire. This is based upon a premise that the film sets of the Defendants have been gutted in fire twice before. This contention is made upon a newspaper report. The contents of the newspaper report cannot be accepted as true or correct. That aspect also would have to be proved by the Plaintiffs. Of course, if such an aspect is proved, fraud on the part of the Defendants would be established and the Defendants would be liable to the Plaintiffs not only as bailees but also upon such fraud, the lack of liability of the Insurance Company in such a case, notwithstanding. 8. It is too early in the day to call upon the Defendants to furnish security when a liquidated amount under specific 5 contract or the value of the furniture pieces is also not shown by the Plaintiffs. 9. Similar principle would follow for the grant of the injunction or the deposit of the sale- proceeds of the Defendants' film. Consequently, there shall be no order on the Notice of Motion. No order as to costs. 10. Written Statements of all the Defendants are filed. 11. Suit is adjourned to 10.11.2008 for framing issues. [SMT.ROSHAN DALVI, J.]