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The Censors, it is contended, have certified the film with "A" Certificate without any cuts which in his opinion would indicate that there are no provocative or objectionable scenes in the film as the Censor Board felt that intensity and impact of the film would be adversely affected if any cut was imposed. The fact that there would be provocative scenes was known to the plaintiff from the beginning and that these were an integral part of the film. It is the case of the defendant No. 1 that the scenes objected are intrinsic to the film and cannot be deleted. The defendant No. 1 contends that he has explained in what circumstances the letter of 10th April, 2002 came to be issued. It is his case that the plaintiff agreed to do the film free, all the other artists have done the film free save and except the payment of conveyance charges. Defendant's contention is that the letter addressed by the plaintiff dated 10th July, 2002 to the Secretary, Cine & TV Artists Association is clearly unfair as he has not breached any agreement with the plaintiff. The defendant No. 1 has denied that he is seeking to exhibit the objectionable portions for commercial gain. In the additional affidavit he has set out that the film is scheduled for release on 6th September, 2002 and that he has spent an amount of Rs. 50.00 lakhs on advertisements.

4. The plaintiff has filed a rejoinder which she has personally affirmed. It is the case of the plaintiff that the entire story board in the present form was not shown. The one shown was substantially different and different shots were proposed and that the document which has been filed before the Court and sought to be relied upon appears to be a draft version of the story board. The plaintiff has further denied that the frames with the story board was shot in the precise format as proposed and in fact the frames in the story board first shown did not contain the shots at pages 36 and 37. The shots said to have been picturised and appearing on page 87 was never part of the film as shown to the plaintiff or story board which was initially shown to her. She denies that the other artists were fully aware of every frame right from the beginning. It is her further case that the story board was altered after having initially being shown to her. It is the plaintiff's case that she accepted the role with a view to help the defendant No. 1 on condition that she would not subject herself to physical exposure and any such shooting which the defendant No. 1 had in mind, would be subject to her consent and further provided that such shots were performed by double or fill-in artists in a mildly suggestive manner but once again subject to her consent. Referring to the story board, frames 1 and 2 on page 4 and pages 87, 89, 90 and 91 it is contended that these were clearly unacceptable to her and thus never performed by her. The said scenes appear to have been filmed with the fill-in artists, in the manner which lack grace and with a view to titillate the audience and viewers of the film. It is pointed out that pages 4, 35 to 37 were expressly agreed to be deleted. Pages 86 to 88 were not shown in the film when the film was screened for viewing of the plaintiff, page 88 it is contended was expressly agreed to be deleted and in all probability did not form part of the original story board. It is then contended that the proposed scenes at pages 89, 90 and 91 were expressly agreed to be deleted from the film.

5. From the narration of the above facts it will have to be prima facie considered whether :-

(a) Does the plaintiff prove that there was in existence a contract between the plaintiff and defendant No. 1, that the defendant No. 1, would use only such scenes in the sensitive part of the film done by the double which were agreed to by the plaintiff.

(b) Alternatively does the plaintiff prove that the defendant No. 1 filmed scenes not forming a part of the story board? and had agreed to delete the scenes which are the subject matter of the present action as set out in para 10 of the rejoinder;

7. The first issue therefore, is whether there was a contract as pleaded by the plaintiff and that the shots filmed and which are the subject matter of the action were not part of the original story board and were agreed to be deleted by the defendant No. 1 and further the story board now placed before the Court is not the story board which the plaintiff was shown.

A few facts which have been adverted to earlier will help the Court in answering the said issue. Firstly, it is apparent that there was a story board. There is an admission to that effect by the plaintiff herself in her rejoinder at paragraph 4. Plaintiff describes that story board as the draft version, as the version shown to her was different. Then in paragraph 7 she states that the story board shown to her did not contain the shots at pages 36 and 37. The shot at page 87 was not part of the story board or film shown to her. The dispute is thus now limited to some pages or frames in the said story board and the scenes which according to the plaintiff as set out in para 10 were to be deleted. It is further clear that the plaintiff was aware that the film was sensitive and would require certain degree of exposure. What is material to note are the averments in para 10 of the affidavit in rejoinder. If the story board shown to the Court can be said to be the first draft the plaintiff with reference to pages 4, (frames 1 & 2) 87 to 89, 90 and 91 sets out that they were clearly unacceptable to her and not played by her. From this it is clear that the scenes were those on the story board but were not played by the plaintiff but by the fill in artist. After seeing the film it is the case of the plaintiff that pages 4, 35 to 37 of the story board were agreed to be deleted. Pages 86 to 88, according to the plaintiff, were not shown in the film screened for her viewing and it was agreed that page 88 would be deleted. From the above what emerges is that from pages 86 to 88 what was to be deleted was page 87 and not pages 86 and 88. Lastly it is set out that the proposed scenes at pages 89, 90 and 91 were expressly agreed to be deleted from the film. In other words they formed part of the story board. Therefore, clearly pages 4 (frames 1 & 2), 35 to 37, 86, 87, 88, 89, 90 & 91 prima facie was part of the story board. What is material, therefore, is that these were the scenes which were contained in the story book, but to which the plaintiff took offence. There is a dispute as to under what circumstances the plaintiff agreed to the double acting in the sensitive scenes. The plaintiff herself has admitted that double could have been used but would be subject to what the plaintiff contends in para 9 of the rejoinder. That the defendant No. 1 filmed those scenes with the double cannot be disputed. As pointed out earlier Mrs. Maria Sharma one of the affiants who has filed an affidavit in support of the defendant has not denied payment made to her for the shooting on 19th and 20th March. The explanation for the payment only comes in the affidavit of the plaintiff in para 16 of the rejoinder. This cannot assist the plaintiff. It ought to have come from Mrs. Maria Sharma who could have traversed those contents in a like manner she has denied some other allegations in the affidavit of defendant No. 1. It is, therefore, clear that certain scenes were filmed with the fill-in artists/double with the help of the plaintiff's hair dresser. There is no material before this Court to hold that as term of the contract, for the plaintiff acting in the film, she had imposed certain conditions, which had been agreed to.