Calcutta High Court
Prism Entertainment Pvt. Ltd. And Ors. vs Prasad Productions Pvt. Ltd. And Ors. on 26 April, 2006
Equivalent citations: AIR 2006 CALCUTTA 206, 2006 AIHC NOC 320, (2006) 3 ICC 789, (2006) 3 CAL HN 45, (2006) 6 SCJ 54, (2006) 6 SUPREME 304, (2006) 7 SCALE 656, (2006) 3 ALL RENTCAS 243, (2006) 3 CURCC 257
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
JUDGMENT Ashim Kumar Banerjee, J.
Facts:
1. Three ladies viz. Ritupanaa Sengupta, Anjana Dalmia and Nitu S. Saini formed a company called Prism Entertainment Private Limited for making feature film. They entered into an agreement in January, 2003. By such agreement the company was formed. They became directors. They made a film called "Alo" which was released. That time there was no dispute between them. They thereafter made a film called "Eai Ki Sansar" which was re-titled as "Bauma Zindabad". It further appears that all of them from time to time resigned from the Board of Directors subsequently. It is the case of the plaintiffs being the company, Ritupama Sengupta and Anjana Dalmia that the laboratory which was holding the rush print and film negative of the film refused to deliver the same even upon payment of the charges for developing the said film on the alleged ground of purported agreement dated August 1, 2003 by which one Ms. Meena Chowla the defendant No. 4 claimed a right of pledge on the film negative for payment of Rs. 35.00 lacks together with interest thereon said to have been advanced to the company by account payee cheques.
2. It was the case of the plaintiffs that the husband of Nitu S. Saini being the defendant No. 3 by misutilising his status as Chief Executive Officer did the mischief by executing pledge document in collusion and conspiracy with each other without knowledge and consent of the other directors and without any valid board resolution being had.
3. The plaintiffs filed the instant suit in this Court, inter alia, claiming for cancellation of the purported documents including the agreement dated August 1, 2003 as well as mandatory order of injunction directing the defendant No. 1 being the film laboratory to forthwith release the film negative of Bauma Zindabad and for other consequential reliefs.
4. The defendant No. 5 filed a suit in Delhi High Court for recovery of the said sum of Rs. 35.00 lacs said to have been lent and advanced to the company as well as for a declaration of the charge on the said film negative. The said suit was filed as against the plaintiffs herein as also the said Nitu Saini.
5. The Delhi suit is a prior suit.
Present applications:
6. The defendant No. 1 as well as the defendant Nos. 2 and 3 jointly filed two separate applications under Section 10 of the Code of Civil Procedure for stay of the above suit. Both the applications were heard by me on the above-mentioned date and are being disposed of by this judgment.
Comparative study of both the plaints:
Calcutta Suit Delhi suit (i) All the parties in Delhi suit are (i)The claim of the Delhi suit is also parties herein except Sri Sunil based upon the agreement dated Saini the husband of Nitu Saini August 1, 2003. being the defendant no. 3. (ii) The payment of money was not (ii) To establish the claim the plaintiff expressly denied by the plaintiff. in the Delhi would not only have to (iii) The factum of agreement establish the factum of payment but dated August 1, 2003 was also not also the validity and existence of the in dispute. The plaintiffs, however, agreement dated August 1, 2003. prayed for cancellation of the said agreement dated August 1, 2003. Thus : If the suit is allowed to be heard the Court has to go into the question of validity of the agreement dated August 1, 2003 and rights and obligations of the parties to the said agreement and would have to pronounce a judgment on the same. Special Feature:
7. In Calcutta suit written statement was probably not filed at least my attention was not drawn to that extent. In Delhi suit written statement was filed which was annexed to the second application. On perusal of the written statement it appears that the same was nothing but verbatim reproduction of the Calcutta plaint.
8. Law on the Subject:
Parties cited four decisions:
(i) All India Reporter 1957, Calcutta, Page 727 Shorab Merwanji Modi and Anr. v. Mansata Film Distributors and Anr.
(ii) All India Reporter 1972, Calcutta, Page 128 Arun General Industries Limited v. Rishabh Manufacturers Pvt. Ltd. and Ors.
(iii) CWN Volume - 88, Page 949 Adshish Chandra Sinha v. Hindustan Gas and Industries Ltd. and Anr.
(iv) 2005, Volume - II, SCC Page - 256 National Institute of Mental Health and Neuro Science v. C. Parameshwara In addition to the aforesaid decisions I considered the following decisions:
(i) All India Reporter 1917, Calcutta, Page 248 Bipin Behari v. Jogendra Chandra
(ii) All India Reporter 1971, Calcutta, Page 345 Life Pharmaceuticals Pvt. Ltd. v. Bengal Medical Hall
(iii) All India Reporter 1975, Calcutta, Page 411 Shaw Wallace & Co. Ltd. v. Bholanath Madanlal Sherawala and Ors.
(iv) All India Reporter 1983, Calcutta, Page 199 Challapalli Sugars Limited v. Swadeshi Sugar Supply Pvt. Ltd.
9. Section 10:
Rigid Construction:
If one goes by the words of the section it would appear that to obtain an order of stay the Court has to be satisfied:
(i) Suit liable to be stayed is a later suit,
(ii) Both the suits are between the same parties or
(ii)(a) Between the parties under whom they or any of them litigating under the same title,
(iii) Both the suits are pending either in the same Court or any other Court within the country.
On a plain reading of the said section and the analysis as above it would appear that if on a self-same cause of action between the same parties two suits are filed in one Court or in different Courts of the country the post suit should be stayed till the disposal of the prior suit.
Harmonious construction on a combined reading of the precedents referred to above:
10. To decide whether the second suit is hit by Section 10 or not the test is to find out whether the plaint in one suit would be the written statement in the other suit or not. Once such test is positive a decision in one suit would operate as resjudicata in the other suit. That is the principal test on which Section 10 is applied. The parties., in my view, may not be the same as one suit may have one additional party that would not make Section 10 inapplicable.
11. The observation of the Division Bench in the case of Shorab Merwanji Modi (supra) being relevant herein is quoted below:
If the Calcutta plaintiffs defence in the Bombay Suit is substantially his plaint in Calcutta suit and if the Bombay plaintiffs defence in the Calcutta suit is virtually his plaint in the Bombay suit, the matter in issue between the parties in the two suits would seem to be substantially the same. The fact that one is a suit under the agreements and the other is a suit de hors the agreements does not make a substantial identity of the subject-matter per se impossible.
12. When a suit comes up for regular hearing on contest Court frames issue considering the pleadings and once plaint and written statement are taken together the Court has to frame issue after finding out on which point the parties are joining issue and for that not only the plaint but also the written statement is equally important. In the instant case when the Delhi suit would be heard the Court would have to come to a definite conclusion as to the veracity and legality of the agreement dated August 1, 2003. Unless such agreement is proved the plaintiff in Delhi suit would not be entitled to any decree. Similarly, if such agreement is proved and plaintiff gets a decree in Delhi suit the Calcutta suit would automatically fall.
13. In this regard the observation of this Court in the case of Life Pharmaceuticals Pvt. Ltd. (supra) being relevant herein is quoted below:
In my opinion, the test to be applied in deciding an application under Section 10 of the Code of Civil Procedure is whether the matter in the later suit will be resjudicata, if the prior suit is taken to have been decreed in the manner as prayed in the plaint.
My view:
14. Applying the law as settled by this Court I am of the view that the Delhi suit being the prior suit should be heard first and once the said suit is heard the decision in Delhi suit would apply as resjudicata in Calcutta suit. Hence, Calcutta suit is liable to be stayed under Section 10 being a later suit.
Result:
15. The applications thus succeed and are allowed.
16. C. S. No. 52 of 2005 is stayed till the disposal of the Delhi suit pending in the High Court at Delhi being Suit No. 1374 of 2004, Meena Chowla v. Prism Entertainment Pvt. Ltd. and Ors. G. A. No. 3075 and 3704 of 2005 are disposed of. Parties do bear their own costs.
17. Urgent xerox certified copy would be given to the parties, if applied for.