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Judgment
R. Balasubramanian, J.—The plaintiff is sinking in deep waters. May be he had exhausted all his energy after swimming too long or he does
not know how to swim at all. To his eyes, the creditors appear as devils and when he looks down, he sees the deep ocean and therefore he is
caught between the devil and the deep sea. He sends an S.O.S. for his survival. A straw comes in his way and he clutches to it for his survival. To
him the ""court"" is the last straw in his hand. But his survival attempt is opposed tooth and nail by all the creditors. They want to see the goose that
may lay golden eggs be killed. Under such circumstances, this court does not want to play the role of King Nero. The Romans detested King Nero
playing on his fiddle while Rome was burning. Strict compliance of requirement of law is pressed before court by the creditors to deny relief to the
debtor fighting for his survival. In my opinion, when justice is to be done, procedural law will give way. Section 94 of the CPC comes handy to the
court to prevent justice from being defeated. The plaintiff is the absolute copyright owner of a Tamil Cinematograph Film ""Ullam Ketkkume"". He
has come before this court in this suit for an injunction restraining the defendants from interfering with such copyrights by preventing him in any
manner with the release and exploitation of the said film and for a mandatory injunction directing the first defendant/laboratory to deliver prints of
the said Tamil film or such other persons named by this court. In sum and substance, the argument of Mr. K. Ravi learned counsel for the plaintiff is
that there is no dispute that everyone of the defendants have a claim against his client. But however, according to him, the quantum of their claim is
in dispute, which can be thrashed out later on in a manner known to law. Some of the defendants, learned counsel for the plaintiff would state, have
a right of lien. Such a right vesting with the defendants, who possess the same, would prevent the plaintiff from releasing the film without discharging
the claim of the lien holders. The plaintiff has no money, which means, he would not be in a position to discharge the lien, which again means, the
film can never be released. In this context, the learned counsel relies upon a Division Bench judgment of this court in the case reported in AIR
1979 Madras 56- (1978) 91 L.W. 497 (R.M. Subbiah Vs. N. Sankaran Nair) where it has been held as follows :
When once we reach the stage, which is not in dispute, that the picture has been picturised on celluloid, it would not be conducive in equity or in
the name of justice to keep such a completed picture in the shelves of a laboratory without the same being exploited for the benefit of both the
parties in a litigation in which the only question is whether there is a copyright vested in the plaintiff in the story of the picture.
Therefore his submission is that, let the picture be released in a manner to be suggested by thus court and money realised over which the plaintiff
may not be given any domain at all and from the realisations, the claims of the creditors may be met. Learned counsel for the plaintiff submits that
he is prepared to abide by any condition that may be imposed on his client by this court in allowing the picture to be exploited. Mr. T.K. Seshadri
learned counsel appearing for the first defendant would submit that, if at all a receiver has to be appointed as suggested in open court by the
plaintiffs counsel for exploiting the picture, then the requirement of Order 40 Rule 1 of the CPC must be satisfied. To know what are the
requirements to be fulfilled when Order 40 rule 1 of the Code is resorted to learned counsel for the first defendant brought to my notice two
judgments of this court, one reported in 67 L.W.I 186 (Muniammal Vs. Ranganatha Nayagar) and the other reported in AIR 1955 Madras 430
(Krishnaswamy Vs. Thangtivelu). In the first case the learned Judge held that a receiver can be appointed it will is shown that there is a special
equity in favour of a person asking for it. In the second case the learned Judge held that some emergency or danger or loss must be shown before
ever a receiver can be appointed. Therefore according to the learned counsel for the first defendant the claim of the plaintiff in this ease cannot be
brought under Order 40 Rule 1 of the Code. It is his further submission that his client/first defendant has a lien over the picture and under that lien,
unless he is paid his dues, the film cannot be released. Therefore his submission is, no order of court can defeat a legal right vesting in any person.
Similar is the argument of almost all the counsels, who are having liens. Mr. D. Veerabadran learned counsel appearing for defendants 17 and 18
would state that his clients have got overseas rights in the film and therefore it must be protected, if at all this court is inclined to pass orders for
exploitation of the film. All the other defendants wanted their claim to be protected in a manner known to law.
In the above stated circumstances, this court is under a legal obligation to strike a balance between the legal claims of the various defendants and
the cry for survival made by the plaintiff. This court is fully aware that no order can be passed defeating the legal rights of any party. But however,
without defeating such legal rights of any of the parties in opposition, if an arrangement could be arrived at in exploiting the film by providing
necessary safeguards to meet the claims of all the creditors, then 1 have no doubt at all that I would not be committing any error. As already
stated, some of the defendants have a lien. If we go strictly by the rights that flow from such lien, then unless the lien holder is paid off his dues, the
film can never be released. This means a stalemate, especially when the plaintiff states that he has no money to pay the dues. Such claim, many of
the creditors in the array of defendants have. Therefore the result of a stalemate is doubly confirmed. This is what the Bench of this court in the
judgment reported in AIR 1979 Madras Pg. 56 wanted to avoid. Therefore this court must find a way out. Only in such circumstances, the
wisdom of Legislature thought it fit to introduce section 94 of the Code. The heading of this section itself shows that it is ""supplemental
proceedings"". The opening words of the section is to the following effect:
In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed, (d) appoint a receiver of any property.....
In my considered opinion, the power available to the court u/s 94 of the Code is wider than the power available to the court under Order 40 rule 1
of the Code. The Hon''ble Supreme Court of India in the judgment reported in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, had
laid down the law, in the back drop of sections94, 151 and Order 39 Rule 1 of the Code. The majority view in that case is as follows :
It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the
possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression ''if it
is so prescribed'' in S.94, is only this that when the rules in 0. 39, Civil P.C. prescribe the circumstances in which the temporary injunction can be
issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether
the circumstances of the case bring it within the prescribed rule. If the provisions of S. 94 were not there in the Code, the Court could still issue
temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. It is in the incidence of the exercise of the power of the Court
to issue temporary injunction that the provisions of S. 94 of the Code have their effect and not in taking away the right of the Court to exercise its
inherent power.
Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders
necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent
power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by
virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the
Court, there is no question of implying any powers outside the limits of the Code.
Thus, there being no such expression in S. 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order
39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not
covered by the provisions of Order 39, C.P.C, if the Court is of the opinion that the interests of justice require the issue of such interim injunction.
Therefore I have no doubt at all to invoke section 94 of the Code on the extraordinary facts available in this case to see that ends of justice is not
defeated. Once that conclusion is reached by me, then what follows is to see that the film in question is released pending suit; realization is made
and money is brought into the hands of a person/persons to be appointed by the court to be held in trust until further orders. By doing so, 1 am
fully convinced that I am not defeating any provision of law nor taking away any legal rights available with any of the defendants. What I am trying
to do now is to see that the film, on it''s exploitation, gets return and the said return to be preserved without in any way being siphoned off by the
plaintiff and held for the benefit of all the creditors subject to any priority claim. Accordingly the following order is passed :
The first respondent and the fourth respondent are appointed as joint receivers for the Tamil film ""Ullam Ketkkume""; the applicant/plaintiff shall
spend a sum of Rs. 10 lakhs in effecting necessary advertisements in the name of the joint receivers for the release of the film in Tamil language in
the State of Tamil Nadu and Pondicherry; the applicant shall select good theatres for release of the film all over Tamil Nadu and Pondicherry and
place it before the joint receivers for their approval and selection; the joint receivers shall release 72 prints of the film in all the 72 theatres so
approved by them, which prints are already ready in the custody of the first respondent/laboratory; the joint receivers shall realize the collections
from such release and deposit the same in a Nationalised Bank in a separate account to be opened in the names of joint receivers; such deposit
shall be after deduction of tax and theatre rents; if any post release publicity is needed, on intimation from the joint receivers, the applicant shall
bring the necessary fund to meet those expenditures as well; the applicant shall have a priority claim for the reimbursement of the money spent by
him on pre release publicity and post release publicity of the picture from and out of the collections at the time of disbursement; the joint receivers
are entitled to withdraw such sum of money from the amount in deposit to defray any reasonable and lawful expenses, which they may incur
towards the release of the film, which would include wages for representatives as may be appointed by them for all the theatres where the picture is
released; the 18th respondent, who holds a concluded contract for exploiting the picture in overseas territories can take the prints at his cost from
the first respondent/laboratory for export purposes only; the disbursement of any amount from such collection either towards reimbursement of the
expenses incurred by the applicant towards pre release publicity or post release publicity and return of the amount to any of the defendants shall
wait further orders from this court; on the applicant meeting the necessary expenses, the joint receivers shall permit the applicant to add a small
negligible missing portion of the film in the prints already available, subject to the condition that he pays the actual cost of that process to the first
respondent/laboratory; the joint receivers shall arrange for the release of the film within eight weeks from the date of receipt of a copy of this order
and the remuneration of the joint receivers shall be decided later on. Call this application on 14.06.2005.