IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 RSA.No. 833 of 2011() --------------------- AS.187/2007 of D.C & SESSIONS COURT,TRIVANDRUM OS.54/2001 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT-IST RESPONDENT-PLAINTIFF ------------------------------------------------------ GANESHAN, PROPRIETOR, SABARI FILMS, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): APPELLANT & 2ND & 3RD RESPONDENTS,DEFENDANTS 3,4&2 ------------------------------------------------------------------------------------------------------------------- 1. ANTONY DEVASSY, KOTHUES HOUSE, G.K.HOUSE, K.G.KAVU, THRISSUR.680 001 2. K.S.SIVAPRASAD, PROPRIETOR, GAYATHRI VISION, VALLACHAKAL VEEDU, UZHUPARA, NEDUMKOLLAM.P.O., KOLLAM. 691 334 3. MADHAVI MOHAN, PROPRIETOR, MADHURAM RELEASE, AKSHAYA BUILDING, K.G.KAVU, THRISSUR.680 001. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 833 OF 2011 =========================== Dated this the 9th day of August,2011 JUDGMENT Plaintiff in O.S.No.54/2001 on the file of Additional Sub Court, Thiruvananthapuram is the appellant. First respondent is the third defendant and other respondents defendants 1 and 2 in the suit. Appellant instituted the suit against the second respondent for realisation of Rs.1,59,893/- with interest contending that he sought financial assistance for production of the film “Achante Kochumolkku” and he had undertaken to repay the amount before 28.9.2000 and later on 27.4.2000 the account between the plaintiff and second respondent was settled and Ext.A1 agreement was entered into whereunder he has agreed to pay the amount by 28.9.2000. Contending that he has not repaid the amount a decree was sought RSA 833/2011 2 for, against the second respondent the then sole defendant. First respondent and the third respondent thereafter got themselves impleaded as defendants 2 and 3 contending that they have purchased the distribution right of the film Achante Kochumolkku and they have the right of distribution over seven districts and the right was obtained for a total consideration of Rs.12,65,000/- and when the film was about to be released an order of injunction was passed and therefore they were constrained to get themselves impleaded in the suit. They also contended that they were constrained to produce security for the release of the film. It is contended that it is the duty of the second respondent to discharge the debt due to the appellant. Learned Sub Judge on the evidence granted a decree as against all the defendants for realisation of Rs.1,59,893/- with interest at 12% per annum till the date of the decree and thereafter at 6%. The third defendant/first respondent challenged the decree RSA 833/2011 3 before District Court, Thiruvananthapuram in A.S.187/2007. Learned District Judge on reappreciation of the evidence found that there is no privity of contract between first respondent and the appellant and even according to appellant it was the second respondent who borrowed the amount and executed Ext.A1 agreement and therefore there cannot be a decree against the appellant. Learned District Judge also found that appellant is entitled to withdraw the bank guarantee furnished before the trial court. The appeal was allowed. The decree is challenged in the second appeal. 2. Learned counsel appearing for the appellant was heard. 3. The argument of the learned counsel is that first appellate court did not properly appreciate the ambit and scope of the suit. According to the appellant, the plaint discloses that appellant granted the loan for production of the film and utilising that money second respondent produced the film and under Ext.A1 he had agreed to pay the RSA 833/2011 4 amount but as it was not paid appellant is entitled to proceed against the second respondent and also the film and when an order of injunction was passed, respondents 1 and 3 furnished security and got the film released and hence the security should not have been released by the first appellate court and therefore the decree is unsustainable. Learned counsel relied on section 46 of the Sale of Goods Act to support his plea that appellant is entitled to proceed against the film and as the bank security was furnished for release of the film, appellant is entitled to get that amount. 4. On hearing the learned counsel I do not find any substantial question of law involved in the appeal. 5. The suit was filed for realisation of the amount obtained by the second respondent allegedly for the production of malayalam film agreeing to repay the same before 27.4.2000. There is no case that the amount was paid by the appellant on the RSA 833/2011 5 promise that he would also be taken as a co- producer or the film would be sold to the appellant. The only allegation in the plaint is that second respondent had undertaken to repay the same on or before 28.9.2000. It is the further case that as the amount was not paid Ext.A1 agreement was executed later whereunder the account was settled and the amount was agreed to be repaid before 28.9.2000. As the amount was not paid the suit was filed. There is no claim in the suit that appellant is entitled to any right over the film. No decree was also sought as against the film. Therefore the decree could have been passed only as against the second respondent, who was the sole defendant in the suit. Respondents 1 and 3 were subsequently impleaded of their own, as an order of injunction was passed restraining release of the film, as they have obtained right of distribution over seven districts. Because of the order of injunction they were compelled to furnish security. Unfortunately learned Sub Judge without RSA 833/2011 6 considering the question whether defendants 2 and 3 are personally liable for the plaint claim granted a decree against them. As rightly found by the first appellate court, no decree could have been passed against defendants 2 and 3 as even according to the appellant they are not personally liable. Even after defendants 2 and 3 were impleaded, the plaint was not amended claiming a decree against them or even against the film. In such circumstances, first appellate court rightly set aside the decree granted against the first respondent the appellant in A.S.187/2007. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006