TMI Blog1942 (4) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... plying a Rush-print thereof as well as for giving facility of Moviola machine for editing purposes. This agreement is exhibit A to the plaint. 3. Clause 3 of the agreement provided that the defendants were to keep the negative of the film in the possession of the plaintiff in their laboratory. It was to be kept in connection with processing and a first charge was created upon the negative for arrears of bills in respect of raw films and processing charges. It is important to observe that by virtue of this agreement the plaintiff was given the right to retain only the negative of the film and had a first charge for arrears of bills in respect of that negative only. 4. Thereafter difficulties arose between the plaintiff and the defendants in regard to the editing of the film in consequence of which a fresh arrangement of a tripartite character was come to between the plaintiff and the defendants and Messrs. Bombay Film Laboratories. This agreement is evidenced by the letters which are exhibit (B) to the plaint. The first letter dated June 26, 1941, was written by the plaintiff as the proprietor of the India Cine Laboratory to the Bombay Film Laboratories. It states that the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o on, June 26, 1941, whereby among other things it was agreed that the Bombay Film Laboratories should hold both the picture and sound negatives as well as the positive prints relating to the picture on account and on behalf of the plaintiff. The correspondence is then referred to in the plaint, and in paragraph 10 the plaintiff alleges that he learnt from the correspondence that the defendants halve taken possession of two positive prints of the picture from the Bombay Film Laboratories. In paragraph 11 the plaintiff alleges that he is entitled to the possession of the negatives, sound negatives and positive prints, and he further alleges that he has a first charge thereon until the amount due and payable to him is paid by the defendants. In paragraph 12 he alleges that the defendants were not entitled to take possession of the positive prints and that they have wrongfully taken possession thereof. In the prayers he asks for a declaration that ₹ 7,309-13-0 are due and payable and for a declaration that he has a first charge on the picture negatives, the sound negatives and the positive prints, and he asks that in default of payment the said picture negatives, sound negatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the agreement dated May 12, 1941, and the agreement recorded in the correspondence exhibit B to the plaint. He contended that the subject-matter of the suit was therefore outside the scope of the submission contained in the agreement dated May 12, 1941. Further he alleged that he had come to know from Messrs. Sevaram Tricumdas on March 28, 1942, that the defendants had mortgaged the films to Messrs. Sewaram Tricumdas. 10. Mr. Shantiprasad G. Khandaria filed an affidavit in rejoinder sworn on March 31, 1942. In paragraph 9 he alleged that the suit was based only on the agreement dated May 12, 1941, and not on the arrangement which appears in exhibit B to the plaint. He alleged that the arrangement had never been accepted by the defendants and that it was not binding upon them. He therefore submitted that the alleged arrangement and disputes arising out of that alleged arrangement cannot affect the rights of the parties to the agreement. It is to be observed therefore that the validity of the agreement which is set out in exhibit B to the plaint is actually challenged by the defendants to this suit. He goes on in the affidavit to allege that in November, 1941, the defendants c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole subject-matter of the action. As Mr. Justice Cotton said in his judgment the subsequent agreement imposed upon the lessor certain fresh liabilities and to some extent modified the rights of the plaintiff. 13. In my opinion the case relied upon by Mr. Vakil is applicable to the facts of the present case. I think that the subsequent agreement evidenced by exhibit B conferred upon the plaintiff a right which he had not previously got, viz. to have possession of the positive prints retained on his behalf by a third party and imposed upon the defendants a liability which they had not previously undertaken, viz. to sanction the retention by third parties of the positive prints on behalf of the plaintiff. This new arrangement imposed liabilities upon the defendants and conferred rights upon the plaintiff which are not to be found in the original agreement at all. In my opinion the arbitration clause has no applicability whatever to these new rights and liabilities so imposed and conferred. In my opinion an arbitrator or arbitrators appointed under the original agreement would have no jurisdiction to entertain any dispute arising between the plaintiff and the defendants in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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