India: Injunction Refused To The Release Of The Movie “Aashayein”

Last Updated: 22 April 2009

The Entertainment business is witnessing litigation more rapidly than ever before. Reliance Big Entertainment Ltd. (hereinafter Big Entertainment) had filed an application praying for an interim injunction application against Percept Ltd. (Reliance Big Entertainment Pvt. Ltd. v. Percept Ltd. & Anr. 2009 (39) PTC 555(Del.)) praying that Percept, its officers, servants and agents be restrained from dealing with either themselves or through any third party from assigning, licensing or releasing of the movie titled Aashayein and from issuing any order/letter allowing the release of the print of the film titled Aashayein in favour of any third party. Big Entertainment had filed a suit for recovery, grant of permanent injunction and decree for sale against Percept Ltd and its co-defendant Super Cassettes Industries Ltd, the co-producers of the film in question.

Big Entertainment, an establishment as part of the Reliance Anil Dhirubhai Ambani Group, claimed to have extensive production partnerhips with the leading creative talent in India. Big Entertainment in association Percept, co-producers of the movie involving acquisition of films, distribution rights etc around May, 2008. It was agreed that Big Entertainment would distribute rights of film Aashayein to be directed by Nagesh Kukunoor starring John Abraham and others for world-wide territories and for use of media platforms and formats.

Big Entertainment in the present suit alleged that he was shown a one minute teaser (short promotional clip) of the proposed film which suggested the film to be a commercial film. Big Entertainment then asked Percept to provide a written synopsis on the subject matter and treatment note of the film.

Via email, Super Cassettes sent them a written synopsis on behalf of both themselves and Percept detailing the film's subject matter. The plaint stated that a perusal of the synopsis reflected that the film was proposed to be a commercial film venture. They further contended that there was representation by Percept to Big Entertainment that the price cost of the film was Rs. 18 Crores and it was assured that Percept would not deviate from the story line.

Big Entertainment further alleged that on the basis of the representation made by Percept, they entered into a Distribution agreement (Term Sheet) with Percept such as distribution of certain rights in the film such as theatrical and non-theatrical rights, world satellite rights, television rights, overseas home video rights etc. They agreed to enter into a Long Form agreement within thirty days of the present agreement and stated that the same be valid and binding on both the parties until the Long Form Agreement was signed.

On viewing the complete film was, Big Entertainment' representatives discovered that the film did not resemble what they had been represented, rather being contrary to the representation earlier supplied. They further pleaded that the film was not commercial in character. This fact was conveyed to Percept many a times, consequent to which Big Entertainment pleaded fraud and misrepresentation by Percept.

Big Entertainment also alleged that Percept had sent an e-mail demanding payment of the second installment but the Big Entertainment explained its discontentment and demanded refund of money paid. Thereafter, Super Cassettes via a letter agreed to the same latest before the release of the movie, but Big Entertainment learnt of their lack of intent and their move to release the movie through trade channels. Thereafter, Big Entertainment claimed to have called upon Percept and Super Cassettes to refund the money paid and also explained various reasons owing to which the contract had been vitiated.

Big Entertainment claimed in the plaint that in view of the fraud and misrepresentation made by Percept, they continued to exercise lien over the film and that Percept had no right to distribute the film with third parties for exploiting the distribution rights.

Percept contended that Big Entertainment had filed the suit for recovery of a definite sum of money and not a specific performance of the Term Sheet and having given up its right in the film, cannot claim any interim orders restraining the release of the film. They stated that Big Entertainment owed them the minimum guarantee amount as contractually agreed and that the present suit was filed to wriggle out of the obligation. They also averred in the written statement that the entire story was narrated by an email and several communications had been exchanged in this regard. It was also contended that the entire story line had been made public on the website, "Bollywood Hungama" and journals as early as February, 2008. Percept also s submitted that admittedly Big Entertainment's representatives had seen the film on 14th July, 2008, but the first written communication about displeasure and dissatisfaction of the script was received much later. It is also averred that in fact Big Entertainment had second thoughts about the film, therefore, Big Entertainment was looking for excuses to avoid fulfillment of its contractual obligations.

As regards Big Entertainment' contention regarding Percept not having spent more than Rs 5 Crores on the film although a total investment of Rs.18 Crores, was assured, no evidence had been produced by either of the parties. Different statements to the effect were made and the Court held that the budget of the film in question could not be adjudicated at the prima facie stage in the absence of any evidence or accounts showing the actual expenses incurred on the film. Further, reverting to Big Entertainment's contention regarding the film being deviant of the written synopsis and the same being non-commercial, the film was represented to be commercial venture which is contrary to the written synopsis, they stated that the actor for a very small part in the film suffered from cancer, and that the entire story of the film was narrated to the plaintiff.

The Court opined that the misrepresentation about the commercial nature of the film cannot be defined by anyone. And that the term can have a very vast meaning which may be judged on subjective satisfaction of a person and would vary from case to case. The Courts stated that without releasing a film, one cannot expect to comment on the fact that the said film is commercial in nature or not, since the commercial success of any venture would be contingent on the fact when it is put into the market. Therefore, at this stage, no conclusion could be arrived at.

On the letter dated 15th September, 2008, both parties placed heavy reliance, to establish some admissions on account of acknowledgment/assurance given by Percept about the refund of money in addition to resolving the matter amicably. The letter was relied on by Percept to evade the liabilities on the ground that a letter was merely a proposal of settlement where it was alleged that they may consider various options including the return of money. The Court however opined that when both the parties are offering different interpretation to the letter, in the absence of clear admission, I find it is difficult to allow the arguments of admission at the prima facie stage.

Looking at the dicta behind the grant of an ad interim injunction, the Court looked at the well established principles. In consideration of delay, the Counsel for Big Entertainment argued that there was no delay on their part and that legal action was initiated as soon as they came to know from the trade circle that a release of the film was being planned. The Counsel for Percept argued that after watching the film, no disappointment/ misrepresentation or fraud as alleged was made in writing. His contention is that if Big Entertainment was not satisfied with the film made which is why he waited for more than two months to bring the action. The Court however stated that a delay in bringing the action was there since no communication in writing or evidence on record was there to suggest any protest made by the plaintiff for two months except the oral statement made by the plaintiff.

The Court opined that there was a question of the rights of third parties involved and that it would be harmful for both the parties if the court passes the orders stopping the release of the film, unless the court is satisfied that there is no other way of granting justice to the parties except by a preventive injunction.

Bearing in mind the settled principles of law, the Court considered the question of balance of convenience involved in the matter and held that Reliance Big Entertainment was not entitled to interim injunction without any term. The Court held that the relief could be compensated sufficiently monetarily; thereby maintaining the balance of convenience between the parties is to be maintained. In this pursuit, the Court directed that Percept and Super Cassettes deposit 30% of total amount paid by Big Entertainment in equal proportion (15% each) before this Court by way of a FDR in the name of Registrar General, for the period of 12 months within seven days.

Subject to this condition, Percept and Super Cassettes were said to be at liberty to release the film. In addition, they were also ordered to maintain accounts for all the dealings between themselves and their distributors and an account to furnish all the money realized by the exhibition of the film, every quarter.

© Lex Orbis 2009

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions