Sahebzada Mohammad Kamgar Shah vs Jagdish Chandra Deo Dhabal Deoand ... on 21 April, 1960
25] We then come to the issue of compliance with the
provisions of clause 2.28 of the link agreement dated 3 August
2012. If the principle propounded by the Supreme Court in
Sahebzada Mohammad Kamgar Shah (supra) is applied, then it
cannot be accepted that the assignment of rights was dependant
upon the parties jointly and mutually recording the 'ask and take
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price'. However, even if the compliance with this clause is to be
regarded as a pre-condition, then in the facts and circumstances of
the present case, it cannot be said, that there was any breach in
the compliance of the provisions contained in clause 2.28 of the
link agreement dated 3 August 2012. In this regard, reference is
required to be made to almost fourteen instances placed on record
by the plaintiff, concerning defendant No.1 itself. In each of such
instances, there were clauses akin to clause 2.28 of the link
agreement, but there was no written document in respect of
settlement as to 'ask and take price'. Learned Trial Judge, after
taking note of such instances, however, inferred that the plaintiff
took a commercial risk in the matter. With respect, however, we
are unable to share this view of the learned Single Judge. The
fourteen instances involving defendant No.1 itself, in almost
identical circumstances, suggest the existence of a trade practice
as regards non-insistence upon any writing to establish settlement
in matters of 'ask and take price'. Even if there was a trade practice
of insisting upon a written document regarding 'ask and take
price', in the facts of the present case defendant No.1 being the
Financier of the Film, the Goldmine agreement between defendant
No. 1 and the plaintiff having been executed on the same day on
which the link agreement between defendant No. 2 and defendant
No. 1 was executed, indicate that defendant No.2 was aware of
the Goldmine agreement between defendant No.1 and the
plaintiff, or at least that defendant no.1 had already created some
third party rights in respect of the said film. Such awareness, is
also evident from the e-mail communication dated 24 November
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2012. Besides, on 26 and 27 October 2012, STAR had also issued
public notices in cinema trade journals for acquisition of certain
rights in respect of said film. If therefore, there was no settlement
with regard to 'ask and take price' as between defendant Nos.1 and
2, it is reasonable to expect that defendant No.2 would have
certainly reacted at an earlier point of time. The absence of any
reaction, is indicative of collusion between defendant Nos.1 and
2, inter se. Defendant No.1 was admittedly financier of the project.