The Managing Director, Kerala State Film Development Corporation (KSFDC) v Chandrakumari

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938 AS.No. 846 of 1998 ( ) ----------------------AGAINST THE JUDGMENT IN OS 511/1991 of PRL.SUB COURT,TRIVANDRUM DATED 17-10-1997 APPELLANT(S): DEFENDANT:- --------------- THE MANAGING DIRECTOR, KERALA STATE FILM DEVELOPMENT CORPORATION (KSFDC) VAZHUTHACAUD, THIRUVANANTHAPURAM. BY SR.ADVOCATE.SRI.A.SUDHI VASUDEVAN, SC, KSFDC SRI.JOSE JONES JOSEPH, SC, KERALA STATE FILM DEVELOPMENT CORPORATION RESPONDENT(S)/ PLAINTIFF: ------------------ SMT.CHANDRAKUMARI, D/O.THANKAMMA, AGED 46 RESIDING AT USHA SADAN, K.P.X/21, KANNAMMOOLA THIRUVANANTHAPURAM - 11. R, BY ADV. SRI.G.S.REGHUNATH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08-07-2016, THE COURT ON 15.7.2016 DELIVERED THE FOLLOWING: 'C.R.' **==> picture [316 x 71] intentionally omitted <==** **==> picture [136 x 15] intentionally omitted <==** ## Chitambaresh, J. 'Father Damien' became internationally known by his selfless service to lepers in the Island of Molokai. But the film depicting his life became known only by the string of litigations and the present Appeal Suit is one amongst them. 2. O.S.No.1289/1985 on the file of the Court of the Munsiff of Thiruvananthapuram was a suit filed by one Mr.Gladstone against the husband of the plaintiff and the defendant. Ext.B6 decree therein inter alia directed the husband of the plaintiff to hand over the print of the film 'Father Damien' along with music track and picture negative to Mr.Gladstone. O.S.No.1968/1987 on the file of the Court of the Munsiff of Thiruvananthapuram was yet another suit filed by the plaintiff against the defendant which was decreed ex-parte. Ext.A32 decree therein mandated the defendant to deliver the picture negative, sound negative and censor certificate negative of the film to A.S.No.846/1998 2 the plaintiff. The present suit has been filed claiming damages to the tune of ` 50 lakhs for the alleged loss sustained on account of the delay in returning the film negatives bailed. 3. The defendant contended that it lost possession of the goods bailed evident by Ext.B8 attachment list in Ext.B7 execution petition filed to execute Ext.B6 decree. There is no fault of the bailee in returning the goods bailed and the damages allegedly sustained for not being able to exploit the film in time is fanciful. The plaintiff was examined as PW.1 and PWs. 2 to 4 were examined to prove the bailment as also the probable income and loss sustained for not being able to exploit the film. The defendant was examined as DW.1 and DW.2 was examined to prove that it was the husband of the plaintiff who was the bailor and not the plaintiff. The trial court decreed the suit to the tune of ` 20 lakhs in favour of the plaintiff against which the defendant has filed this Appeal Suit on various grounds. 4. We heard Mr.Sudhi Vasudevan, Senior Advocate on behalf of the appellant and A.S.No.846/1998 3 Mr.G.S.Raghunath, Advocate on behalf of the respondent. 5. The parties are at variance as to whether the plaintiff or her husband had delivered the goods - film negatives - to the defendant Corporation to accomplish the purpose of the bailment. Ext.A1 film board certification as well as Exts.A2, A3, A23 to A31 letters/receipts point out that the plaintiff was the producer and her husband was the Director of the film. The series of correspondence between the parties also indicate that there was a bailment of the film negatives of which the plaintiff was the bailor and the defendant was the bailee. However the film negatives were not returned either to the plaintiff or her husband by the defendant after the accomplishment of the purpose - 'development' fit for exhibition. It is on that premise has the suit been filed for damages holding the bailee responsible for the loss, destruction or deterioration of the goods bailed. 6. Section 161 of the Indian Contract Act, 1872 ['the Act' for short] is as follows:- “161. Bailee's responsibility when goods are not duly returned - If by the A.S.No.846/1998 4 fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.” The following ingredients are essential in order to mulct the bailee with the liability to pay damages to the bailor for the loss, destruction or deterioration of the goods bailed: i) There should be fault of the bailee. ii) The goods should not have been returned, delivered or tendered at the proper time. iii) The goods should have been put to loss, destruction or deterioration. All the above should co-exist in order to enable the bailer to claim damages from the bailee under the statute law and the failure to establish any one ingredient would be fatal. The question that falls for consideration is as to whether the plaintiff has discharged the onus of proof cast on her in a suit for damages of the nature filed. 7. It is bewildering as to why the plaintiff A.S.No.846/1998 5 did not put Ext.A32 decree dated 24.12.1989 into execution within three years and attempt to extricate the film negatives bailed. But Ext.B7 execution petition was filed to put Ext.B6 decree dated 26.8.1987 into execution and the film negatives taken custody of by Amin on 17.3.1993 disclosed by Ext.B8 attachment. Thus the defendant bailee lost possession of the goods bailed in execution of a valid decree to which it was a party wherein the husband of the plaintiff was in addition a party. The defendant cannot be said to be at fault by any stretch of imagination for not obstructing the execution of a decree in the presence of the husband of the plaintiff. The husband of the plaintiff was very much alive when Ext.B6 decree was passed and whether he died or his legal heirs brought on record pending execution is left to anybody's guess. 8. The defendant could not return or deliver the goods bailed at the proper time only because of the execution of a valid decree for which it cannot be faulted in order to lay a claim for damages. There is no allegation in the plaint or in evidence that the husband of the plaintiff colluded with the defendant to A.S.No.846/1998 6 cause loss to the plaintiff by secreting the goods. The oral evidence on the other hand is to the effect that the business was conducted jointly by the plaintiff and her husband who resided with her till death. It matters little as to whether the plaintiff or her husband is the bailer and we cannot lose sight of the fact that they were husband and wife living together. Nothing precluded the plaintiff from impleading her husband either in O.S.No.1968/1987 or at least in the present suit imputing fraud and collusion if really there was any. 9. There is no case for the plaintiff that the execution of the decree in O.S.No.1289/1995 was behind her back disabling her to apply to the court to stop delivery of the goods and to decide its title. The delivery in the instant case was to the decree holder in O.S.No.1289/1985 who is said to have obtained the rights of the bailer under an agreement dated 15.2.1984 relating to the dubbing of the film. Section 167 of the Indian Contract Act, 1872 enables a third party to apply to the execution court to stop delivery of the goods and have its title decided. The plaintiff A.S.No.846/1998 7 could have obtained an injunction either in O.S.No.1968/1987 or in the present suit against delivery of the goods if she is not a third party. This is notwithstanding the fact that the pendency of O.S.No.1289/1985 was first brought to the notice of the plaintiff by Ext.A35 reply notice followed by a plea of non joinder in the written statement in this suit. 10. The following excerpt from Jugilal Kamlapat Oil Mills v. Union of India [AIR 1976 SC 227] is apposite:- “The obligation of a bailee is set out in Section 151 of the Indian Contract Act. The section says that a bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Section 152 of that Act says that the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151. A bailee is excused from returning the subject matter of the bailment to the bailor or A.S.No.846/1998 8 his agent where the subject matter was taken away from him by authority of law exercised through regular and valid proceedings.” (emphasis supplied) 11. The plaint is conspicuously silent as to whether any steps were taken by the plaintiff to retrieve the film negatives delivered over to the defendant or about its present custody or condition. No inventory was taken by deputing an Advocate Commissioner and the plaintiff has no case that the film negatives had withered away and become unfit for cinematographic exhibition. The plaint averment is to the following effect:- “Film with the same theme was produced by other persons. Colour films also became more in vogue. Recently video piracy also started flourishing. All these rendered the plaint schedule film totally useless. So by the time when the defendant agreed to release the film, four years had elapsed and it was too late for the plaintiff to use it for any purpose.” The plaintiff had obviously not taken any steps to take delivery of the film negatives (even if available) and exhibit the same in a bid to generate whatever income A.S.No.846/1998 9 is possible. Such a step would have gone in mitigation of the damages claimed which is essential to determine the loss if any on account of the destruction or deterioration of the goods. 12. The financial loss allegedly sustained by the plaintiff in the commercial venture is sought to be saddled on the defendant unjustifiably in an experimental suit filed as an indigent person. We are unable to sustain the impugned judgment and decree of the court below awarding ` 20 lakhs with interest to the plaintiff as damages against the defendant. The decree in O.S.No.511/1991 on the file of the Court of the Principal Subordinate Judge of Thiruvananthapuram is liable to be set aside and we do so. The Appeal Suit is allowed. No costs. Sd/V.CHITAMBARESH, Judge. Sd/K.RAMAKRISHNAN, Judge. nj/11.07.2016