IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 FAO.No. 128 of 2005() --------------------- AGAINST THE ORDER IN IA 987 2003 IN ARB.OP.294/2003 of VI ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANTS - ADDITIONAL RESPONDENTS 3 TO 5: ------------------------------------------------------------------------- 1. RAMESH PRASAD, MANAGING DIRECTOR, PRASAD PRODUCTION (PVT) LTD., PROPRIETOR OF PRASAD FILM LABORATORIES AT ARUNACHALAM ROAD, SALI GRAMA, CHENNAI. 2. SAI PRASAD, S/O. RAMESH PRASAD, DIRECTOR OF PRASAD PRODUCTION (P) LTD., (PROPRIETOR OF PRASAD FILM LABORATORIES) AT ARUNACHALM ROAD, SALI GRAMA, CHENNAI. 3. PRASAD PRODUCTION (P) LTD. (PROPRIETOR OF PRASAD FILM LABORATORIES) REPRESENTED BY CHAIRMAN, 28 ARUNACHALAM ROAD, SALIGRAMA, CHENNAI. BY ADV. SRI.S.EASWARAN RESPONDENT(S): PETITIONER & RESPONDENT NOS.1 & 2: --------------------------------------------------------------------------------- 1. P.A. HARIES, PROPRIETOR, PALATHINKAL FILMS, OFFICE AT DOOR NO.21/144, ALFIA NAGAR, UNIVERSITY P.O., SOUTH KALAMASSERY, KOCHI-22. 2. SIYAD KOKKER, S/O. A.B.ABDUL KHADER, PROPRIETOR OF KOKKERS FILM, BABAS COLONY, CHITTOOR ROAD, KOCHI-18, RESIDING AT 35/2806-F, FATAH, PALARIVATTOM, KOCHI-35. 3. M/S. PRASAD FILM LABORATORY, CHENNAI. ADV. SRI.P.A.AZIZ FOR R1 SRI.E.J.THOMAS FOR R1 SRI.I.G.MANOHARAN FOR R1 SRI.AMJITH C. JOHN FOR R3 SRI. S. SREEKUMAR FOR R2. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/06/2009, ALONG WITH FAO NO. 134 OF 2005 THE COURT ON 15/06/2009DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 128 & 134 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2009. JUDGMENT Bhavadasan, J, In these appeals, the respondents in I.A. 987 of 2003 in Arbitration O.P. No.294 of 2003 before the District Court, Ernakulam calls in question the order passed whereby they were directed to suffer imprisonment for violating an order of injunction. The parties are hereinafter referred to as they were available before the court below. 2. The issue related to the release of a film by name “Ayirathil Oruvan”. The petitioner before the court below claims to be the producer and distributor of the Malayalam film and the first respondent was alleged to be similarly situated. The second respondent is the Laboratory located at Chennai. According to the petitioner, the petitioner and the first respondent had arrived at an agreement whereby the first respondent was to purchase the rights over the film. An agreement to that effect was entered into on 22.2.2002. The schedule of payments was shown in the agreement. FAO.128 & 134/05. 2 It is alleged that the cheques issued by the first respondent bounced for want of funds. Therefore, the petitioner moved for a prohibitory injunction. The matter went for arbitration and an injunction was ordered in the arbitration proceedings whereby the respondents were restrained from releasing the film and also handing over the negative or the prints to anybody. Initial ad interim injunction granted was made absolute. The allegation is that even though a modification of the order was sought by the first respondent and that was infact granted, he had failed to comply with the conditions stipulated in the said order and he could take aid of the modified order. The allegation is that in violation of the order of injunction the film was released. On the basis of these allegations it was clarified that proceedings under Order 39 Rule 2A be taken. 3. The respondents resisted the petition. It was pointed out by them that there is no merit in the petition at all. The first respondent contended that along with the Arbitration O.P. the first respondent had filed I.A. 189 of 2002 seeking temporary injunction. It is claimed that he entered appearance and filed a petition for appointment of a FAO.128 & 134/05. 3 receiver. Processing of the film was completed and produced before the Censor Board. Thereafter he moved I.A.760 of 2003 for a direction to the second respondent, that is the Studio, to submit first copy of the film before the Kerala State Chalachithra Academy for the purpose of screening the film before the Award Committee for Kerala State awards for Malayalam films 2002. A conditional order was passed. The film was allowed to be exhibited before the Committee on condition that the first respondent furnishes security for the amount due to the petitioner. The security was produced on 5.4.2003. Bonafide believing that the security furnished is sufficient, he issued a communication to the second respondent to release copy of the film for screening before the award committee on 7.4.2003. It was in the evening of 7.4.2003 he was given to understand that the security offered by him was not accepted by the court below. It was under these circumstances that the film had been screened. It is pointed out by the respondents that there is no wilful disobedience or laches on their part and the situation arose under the circumstances mentioned above. He therefore prayed for a dismissal of the petitions. FAO.128 & 134/05. 4 4. The second respondent maintains the stand that he had released copy of the film on getting instruction from the first respondent about the furnishing of security. He bonafide believed the communication so received by him and it was under those circumstances he had released a copy of the film to be screened before the Committee. According to him had he known that there was infirmity in the security furnished by the first respondent or that the court had not accepted the same, he would not have released the copy of the film. According to him there is no wilful default or laches on his part and that the proceedings against him need to be dropped. 5. Court below considered the rival contentions and came to the conclusion that there was no bonafides in the stand taken by the respondents and accordingly passed the impugned order. 6. The question that arose for consideration is whether any interference is called for with the order of the court below. 7. Point: Learned counsel appearing for the appellants pointed out that there was no justification for the court below in passing the impugned order. It is pointed out that the first respondent FAO.128 & 134/05. 5 before the court below had moved for a modification of the order of absolute injunction on 3.4.2003. That modification petition was allowed and the first respondent was asked to furnish security. 8. The first respondent furnished the necessary security and informed the matter to the second respondent. Counsel appearing for the appellant in FAO.134 f 2005 pointed out that he had no clue that the court would reject the security furnished by him nor was there any reason to believe that the security furnished by him was insufficient. Learned counsel appearing for the appellants in FAO. 128 of 2005 pointed out that it was believing the communication given by the first respondent before the court below that the copy of the film had been released. Appellants had no reason to believe that the communication was a false one in the circumstances of the case. It could not therefore be said that the appellants in FAO.128 of 2005 had wilfully disobeyed the order of injunction. 9. Learned counsel appearing for the respondents on the other hand submits that there is no bonafides in the claim made by the appellants. There was an order of injunction against them and they had FAO.128 & 134/05. 6 flouted the same. True that there was modification of the order of injunction, by which the film could be screened before the Award Committee, but that was subject to conditions. Those conditions had not been complied with, and therefore the appellants could not be under the bonafide impression that their acts are justified. 10. Even though it may appear that the contention taken by the respondents in these appeals is justified, on a closer scrutiny it can be found that there is not much substance in the same. It is not in dispute that there was an order of injunction restraining the respondents before the court below from releasing copy of the film or screening the same. It is also not in dispute that there was subsequent modification of the order, whereby the film could be screened before the Award Committee subject to the condition that the appellant in FAO. 134 of 2005 furnishing sufficient security for the amount due to the petitioner before the court below. The conditional order was passed on 3.4.2003. It is not in dispute that the security was furnished on 5.4.2003. It is seen from the records that the Award Committee was to meet on 7.4.2003. Normally there were no reasons for the appellant in FAO.128 & 134/05. 7 F.A.O.134 of 2005 to believe that the security furnished by him will not be accepted and that it would be held that he had not complied with the condition. So far as the appellants in FAO. 128 of 2003 is concerned, there were no reasons for them to doubt the communication received by them and they had acted on that basis. It is accepted by the first respondent before the court below that he had sent a communication to the second respondent before the court below pointing out the modified order and requesting that the film be screened before the Award Committee. 11. It may be true that later the court found that the security offered by the first respondent before the court below was not sufficient and it was rejected. That order seems to have been passed on 7.4.2003. It may be that the claim of the appellants is true. 12. In order to invoke Order 39 Rule 2A, it has to be found that there was wilful disobedience of the order of the court. It is significant to notice that there is no finding by the court below that the act of the first respondent before it in furnishing security which was later found to be not acceptable was deliberate or that he knew that it FAO.128 & 134/05. 8 would not be accepted. There is nothing to show that there was malafides on his part. The reason for rejecting the security offered by the first respondent by the court below is not discernible from the records made available to this court. The fact remains that the modified order was passed on 3.4.2003 and the security was furnished on 5.4.2003. As per the records the Award Committee was to meet on 7.4.2003. 13. The observation of the court below that the second respondent before that court ought to have verified that the communication received by them from the first respondent was proper and genuine and whether it was in consonance with the modified order does not appear to be very correct. As already noticed, security was furnished on 5.4.2003, which according to the first respondent before the court below was in accordance with the order. There were no reasons for the first respondent to believe that the security would be rejected. If he claims that with bonafides he informed the second respondent for screening the film before the Award Committee, it could not be said that he had any ill motive. Merely, because on 7.4.2003 the FAO.128 & 134/05. 9 court took up the matter and found that the security furnished was insufficient by itself is not a ground to doubt the bonafides of the first respondent before the court below. It is interesting to note that the court below does not find that there was a deliberate attempt on the part of the first respondent to take the court for a ride. There is nothing to indicate that he had ill motive while furnishing the security on 5.4.2003. May be that later on when the court took up the matter the security was found to be insufficient. But there is no finding by the court below that the act committed by the first respondent was deliberate or wilful. One has to remember that the Award Committee was to meet on 7.4.2003 and the first respondent had obtained a modified order enabling him to have the film screened before the Award Committee subject to furnishing of security. There is no doubt that he had furnished security. It is not stated by the court below and it is also not found from the available records that the first respondent had any intention to wilfully disobey the modified order. Merely because at a later point of time the security furnished by the first respondent was found to be insufficient cannot be relied on to come to FAO.128 & 134/05. 10 the conclusion that it was a deliberate act. 14. The observation of the court below that the second respondent ought to have verified the communication given by the first respondent and having not done so, they are liable, cannot be accepted. The second respondent is a Studio in which the film was kept. They have clearly stated that it was on the basis of the communication received by them that the film was released. The first respondent accepted the said statement of the second respondent. One fails to understand how the second respondent could be held to have disobeyed the order of injunction passed by the court below. 15. In short, there is nothing to show that there was any wilful laches, default or disobeyance on the part of the first respondent or the second respondent warranting action under Order 39 Rule 2A of the Code of Civil Procedure. May be that there was some laches on the part of the first respondent, but that by itself is not a ground to come to the conclusion that there was deliberate and wilful disobedience of the order of injunction passed by the court below. One must recollect that the film was screened on 7.4.2003 and the security had been furnished FAO.128 & 134/05. 11 on 5.4.2003. In the facts and circumstances, it is difficult to accept the finding of the court below that the appellants are guilty of violating the order of injunction. In the result, these appeals are allowed , the impugned order is set aside and I.A. 987 of 2003 before the court below shall stand dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.