Padma Khastgir, J.
1. This suit w,as filed by Messrs. Daga Films, the plaintiff herein, against Messrs. Lotus Production and Mr. D. N. Mehta for (a) declaration that the document dated 7th April 1970 is void and/or voidable; (b) perpetual injunction restraining the defendants from enforcing the said document dated April 7, 1970 by realising any further sum from the plaintiff in respect of the film 'Juari'; (c) decree for Rs. 1,00,000/- by way of damages and (d) injunction, Receiver cost and other consequential reliefs.
2. The defendant No. 1 did not contest the suit nor filed any written statement The defendant No. 2 Mr. D. N. Mehta filed a written statement and also contested the suit. The facts of this case are that the plaintiff carried on business in partnership as distributor of cinematographic films and the defendant No. 1 carried on business of motion pictures production at Ranjit Studio, Dadar, Bombay. The defendant No. 1 as such producer was producing a motion picture in Hindi version in black and white title 'Juari'. On 18th March 1964 an agreement was executed by and between the plaintiff and the defendant No. 1 wherein the defendant No. l assigned to the plaintiff the sole and exclusive right of execution, distribution and exploitation of the said picture 'Juari' in the Bengal Circuit territory, on various terms and conditions as contained in the original document dated 18th March 1964. The relevant clauses for the purpose of this suit are (1) in consideration of the assignment the distributors agreed to pay to the producer a sum of Rs. 1,30,000/- by way of minimum guarantee basis. Over and above, the distributors agreed to spend on behalf of the producer a sum of Rupees 40,000/- towards publicity. The producers agreed to supply to the distributor nine brand new positive release prints duly censored. It was further agreed that if the distributors required any extra prints or loan prints the same shall be supplied by the producer provided raw stocks were available and the negatives were in fit condition to take out such prints. Costs for such prints shall be paid by the distributor at the time of placing of such order. Distributors shall not cut, tamper with, edit, dupe or dub in any language the said picture. The producers agreed that they would complete the picture, get it censored and deliver to the distributors the quota release prints on or before 30th June 1964 with a grace period of two months. In case the producers fail to deliver the release prints on or before the expiry of the grace period, distributors shall be entitled to cancel the agreement and demand repayment of the amount with interest at 9%. In case the distributors fail to deliver the quota prints against stipulated payment within two months from date of the written intimation from the producers the producers shall have the option to terminate the agreement. Pursuant to that agreement, the plaintiff duly paid to the defendant No. 1 a sum of Rs. 60,000/-.
3. In October 1969 it was further agreed by and between the plaintiff and the defendant No. 1 that the defendant No. 1 would deliver or cause to be delivered 12 brand new prints to the plaintiff instead of 9 prints. By a letter dated 17th October 1969 the defendant No. 1 intimated to the plaintiff about further mutual agreement that was arrived at on 15th of October, 1969. Under the said agreement the plaintiff agreed to pay a total sum of Rs. 1,95,000/- on outright sale basis for perpetual period and not on minimum guarantee basis as was agreed upon by the first agreement, against delivery of 12 quota brand new released prints the plaintiff agreed out of the agreed amount of Rs. 1,35,000/- to send a bank draft of Rs. 35,000/- to Messrs. Ramnord Research Laboratories Ltd. for purchasing black and white positive stock for preparing 12 prints and will pay a sum of Rs. 1,00,000/- against delivery of 12 quota prints. The defendant No. 1 agreed to indemnify the plaintiff from any claim or loss for the said picture in the Bengal Circuit excluding Bihar and Nepal. By letter dated 3rd of July, 1968 the defendant No. 1 requested the plaintiff to get the said picture released in the Bengal Circuit and complained that the plaintiff had no inclination of taking delivery of material against payment of Rs. 20,000/-. In that letter the defendant No. 1 also stated that if the agreement was cancelled they would deposit with E. I. M. P. A., Calcutta the sum of Rs. 60,000/- so far paid by the plaintiff to enable them to negotiate and dispose of the distribution rights in respect of the said picture to any other party.
4. The defendant No. 1 assigned its right, title and/or interest in respect of the said film 'Juari' to the defendant No. 2. By letter dated 9th March 1970 the defendant No. 1 requested the plaintiff to ignore the previous arrangement of taking delivery of the prints from Messrs. Ramnord Research Laboratories Ltd. and instead requested the plaintiff to take delivery from the defendant No. 2 or Messrs. Famous Cine Laboratories and Studios Private Limited, Mahalakshmi, Bombay of the prints of the said picture. By letter dated 7th April, 1970 the plaintiff intimated about the release of the picture 'Juari' on and from 17th April 1970 at Roxy and other cinema houses at Calcutta and requested the defendant No. 2 to deliver 12 brand new prints and 8 loan prints for one week's use and in return the plaintiff agreed to supply 4 prints on loan for two weeks for use in Delhi and U. P. By another letter dated 7th April 1970 the plaintiff and the defendant No. 2 recorded an agreement by and between them that the defendant No. 2 would give delivery of 12 brand new prints and 8 loan prints on condition that the plaintiff would pay to Mrs. Famous Cine Laboratories and Studios Pvt. Ltd., Bombay on account of Mr. D. N. Mehta under the contract, a sum of Rs. 90,000/- against delivery of 12 brand new prints and the balance Rupees 40,000/- would be paid to Mr. D. N. Mehta on instalments as envisaged in the said letter. The said letter has been signed by Mr. D. N. Mehta, the defendant No. 2 herein and also by Mr. S. N. Daga, a partner of the plaintiff under the endorsement 'agreed and confirmed'.
5. According to the plaintiff, the plaintiff made all arrangements to release the said prints on and from 17th April 1971 at Roxy and other cinemas at Calcutta end called upon the defendant No. 2 to deliver 12 brand new prints and 8 loan prints. According to the plaintiff, the letter dated 7th April 1970 was obtained by the defendant No. 2 wrongfully and illegally and by exercising undue influence and/or coercion whereunder the plaintiff was to pay a sum of Rs. 90,000/- against delivery of 12 brand new prints and further amount of Rs. 40,000/- on instalments. The plaintiff's further case is that the defendant No. 2 threatened that unless the plaintiff put his signature to the document the defendant No. 2 would refuse to endorse the R/R in favour of the plaintiff in respect of one print of the said film and further stated that only after signing of the letter dated April 7, 1970 the defendant No. 2 endorsed the R/R in favour of the plaintiff.
6. On 14th April 1970 the plaintiff paid a sum of Rs. 60,000/- and took delivery of 8 prints from Messrs. Famous Cine Laboratories and Studios Private Ltd., as instructed by the defendant No. 2. The plaintiff also took delivery of one loanprint and 6 extra prints by paying a total sum of Rs. 18,334.40.
7. After release of the said film on April 17, 1970 at Roxy and other cinemas according to the plaintiff, the plaintiff was surprised to find various complaints from various cinema halls in respect of the said prints being defective as because the prints were prepared from dupe negative. The said prints snapped frequently and were blurred and caused disturbances. The plaintiff's further case is that in spite of the repeated demand the defendant No. 2 failed and neglected and refused to supply to the plaintiff brand new prints replacing the use of the said defective prints.
8. In the written statement the defendant No. 2 in para 10 has pleaded and also gave out the circumstances under which the Ramnord Laboratories did not deliver the release prints of the said picture even against payment of the balance sum of Rs. 1,35,000/-.
9. In view of the said wrongful conduct of the said Ramnord Laboratories, Mr. Barubax Daga on behalf of the plaintiff in order to recover the plaintiff's own investment of Rs. 60,000/- and to obtain the prints of the said picture suggested the defendant No. 2 to prepare dupe negative of the said picture in possession of the said defendant and offered to take delivery of such prints prepared from dupe negative. The defendant No. 2 agreed to the said suggestion and in January 1970 instructed the said Famous Cine Laboratories and Studios Ltd. to prepare the dupe negatives from the original prints. Thereafter the agreement was arrived at in March 1970 regarding delivery of the prints to be taken from Famous Cine Laboratories instead of from Ramnord Laboratories on payment by the plaintiff of the total sum of Rs. 1,35,000/-. Because of the plaintiffs inability to pay the entire sum of Rs. 1,35,000/- Mr. Barubax Daga requested the defendant No. 2 to reduce the said amount to some extent and after mutual discussion the defendant No. 2 agreed to reduce the sum of Rupees 5,000/-. According to the defendant No. 2 the said agreement was arrived at the presence of Mr. Nirmal Kumar Bhose, Solicitor acting for and on behalf of the plaintiff. In fact, it is the case of the defendant No. 2 that said Mr. Bhose dictated the said letters to the plaintiff's Stenographer dated 7th April 1970. According to the defendant No. 2 the print that was handed over to the plaintiff was exhibited by the plaintiff at a private show at RoxyCinema in the presence of other exhibitors and also the defendant No. 2 who approved of the same. On 8th April 1970 pursuant to the request made by the defendant No. 2 Messrs. Rashed Mehta and Co. despatched from Secunderabad 3 loan prints and the same were received by the plaintiff on April 13, 1970. The plaintiff expressed its satisfaction regarding the said prints and requested the defendant No. 2 to instruct Messrs. Famous Cine Laboratories Ltd. to despatch to the plaintiff 5 prints already prepared towards 3 quota prints together with 3 loan prints against payment of Rs. 60,000/-. Messrs. Famous Cine Laboratories Ltd. thereupon on April 9, 1970 issued 5 brand new prints against payment of Rs. 60,240/- inclusive of packing and forwarding charges. As Mr. Daga was not able to arrange for the balance amount of Rs. 30,000/- in full he paid the said Famous Cine Laboratories Ltd. a sum of Rs. 12,000/-, Rs. 6,334.40 on 11th April 1970 and 13th April 1970 respectively and personally took delivery of the remaining 7 brand new quota prints. Out of the 7 loan prints the plaintiff returned only one print but retained with them the remaining 6 loan prints. By letters dated 22nd April 1970, 30th April 1970 and telegram dated 27th April 1970 the defendant No. 2 called upon the plaintiff to remit the balance amount payable by the plaintiff and also to return the said loan prints. The plaintiff did not reply to any of the letters and/or the telegram. On repeated requests being made by the defendant No. 2 for return of loan prints the plaintiff ultimately agreed to return one and retain the said 6 loan prints and adjusted the price of the same with the amount of Rs. 18,334.40 already paid by the plaintiff. The defendant No. 2 by his letter dated May 18, May 29, June 6, June 20 and July 13 repeatedly demanded from the plaintiff for payment of the balance amount. By the letter dated 20th June 1970 the defendant No. 2 informed the plaintiff that unless the payments were made they would be compelled to take legal action against the plaintiff. None of the said letters has been replied to by the plaintiff. The plaintiff filed the present suit on July 7, 1970 and informed this defendant by their Solicitor's letter dated July 9, 1970. The defendant No. 2 denied about various alleged complaints regarding the exhibition of the said prints. The defendant No. 2's further case is that except the plaintiff none of the other distributorsof Bombay, Nizam, C. P., Berar, East Punjab, Tamil Nadu, Andhra Pradesh, Fiji,U. S. A., etc. had put forward any complaint in respect of the dupe prints. As one song sequence was very slow, uninteresting, it was cut by the parties to please the audience. It is the case of the defendant No. 2 that prior to the riling of the present suit the plaintiff did not anywhere record in writing or protest orally regarding the alleged defects of the dupe prints. There has been no whisper about the same. According to the defendant the plaintiff has accepted the said quota prints with full knowledge that the same were prepared from dupe negative by the said Famous Cine Laboratories Ltd. and after seeing the trial run by the said print. The defendant No. 2 has made out a counterclaim in the written statement in respect of a sum of Rs. 70,000/- from the plaintiff with interest and costs. Mr. Barubax Daga was examined on commission on behalf of the plaintiff and Mr. N. Sarkar, the proprietor of the defendant No. 1 was examined on behalf of the defendant No. 2 in de bene ease. The suit was opened before me on June 23, 1977 whereupon Mr. B. K. Ghosh, Barrister-at-Law appearing with Mr. P. K. Roy, Barrister-at-Law appeared on behalf of the defendant No. 2 and suggested the following issues to be framed in the trial ;
1. Is the plaintiff firm duly registered under the Indian Partnership Act, 1932 as alleged in para. 1 of the plaint ?
2. Did the defendant No. 2 get the document dated April 7, 1970 signed by Sri S. N. Daga, partner of the plaintiff firm wrongfully, illegally or by exercising any undue influence or coercion as alleged in para. 14 of the plaint ?
3. Were the prints of the film 'Juari' supplied by the defendant No. 2 to the plaintiff thoroughly defective or unworthy of proper public exhibition as alleged in para. 1'9 of the plaint ?
4. Were the prints in question made from dupe negative at the suggestion and instance and/or with the knowledge of the plaintiff as alleged in the Written Statement?
5. To what reliefs, if any, are the parties entitled?
10. Mr. J. N. Hoy, Barrister-at-Law appearing with Mr. Ranjan Dutt, Barrister-at-Law at this stage stated that his client would not press the claims made against the defendants but would contest the claim of the defendant No. 2. As such, the only issue was framed in the manner following:
To what relief, if any, is the defendant No. 2 entitled?
11. The defendant No. 2 examined himself and in his examination he supported hiscase. He was cross-examined at length but no material and/or substantial contradiction could be brought out from his cross-examination nor did he admit coercion and/or undue influence that was alleged to have been exercised by the defendant No. 2. The defendant No. 2 relied on the following questions so far as the examination of the defendant No, 2, defendant No. 1 and Mr. Barubax Daga is concerned are the following:
12. Questions Nos. 69, 70, 71, 73, 116, 117, 151, 338, 339, 340, 343, 346, 347, 348, 462, 521 and 522. He has further referred to the following questions on the point of outright sale by and between the plaintiff and the defendant No. 2 and the said questions are questions Nos. 30, 64. 65, 66, 67, 109, 110, 112, 116, 121, 122, 131, 132, 182, 187, 215, 220, 234, 261, 285, 357, 358, 380, 381, 43S, 443, 444, 453, 455, 519, 524, 525, 531. So far as Mr. N. Sarkar's evidence is concerned, the defendant No. 2 has relied on the following questions so far as dupe negative is concerned. The said questions are 7, 8, 9, 10, 30, 31, 32, 36, 39, 68, 69, 70, 87, 94, 98, 99, 100, 101, 103, 106, 107, 110, 111, 117, 118, 134 to 136, 138, 139, 141, 142, 146, 148, 155, 156, 162, 163, 171, 172, 293, 336, 361, 363, 364, 366, 369, 370, 372, 374, 376, 377, 381, 383, 384, 388, 396, 399, 402, 404, 405.
13. On the question of outright sale the questions 19 and 20 have been referred to in the examination of Mr. N. Sarkar. Mr. Barubax Daga, defendant No. 2 has examined himself in Court and his evidence so far as dupe negatives are concerned has been mainly relied on by the defendant No. 2, the following questions: 41, 42, 44 to 52, 56, 64, 65, 71-73, 92, 94-100, 123, 126, 198, 205, 266, 285, 289, 290, 292, 318, 319, 327, 328, 332, 333, 335, 338, 340, 341, 344, 349, 350, 351, 363, 366, 369, 372, 373, 389, 392, 406, 413, 415, 424-433, 435, 438, 439, 444, 485, 489, 490, 493-497.
14. On the question of outright sale the defendant No. 1 has relied on the following questions so far as Mr, Mehta is concerned: 86, 290, 281, 309 and regarding the total length of the running of the picture 'Juari' the defendant No. 2 has deposed to that effect in questions Nos. 90, 91, 57, 70, 67, 69, 70, etc.
15. Mr. Barubax Daga was examined on commission by the plaintiff. In his examination in chief he has supported and/or admitted execution of his first agreement and/ or terms therein and also various modifications and subsequent agreements that have been entered into by and between the parties. He although stated in his examination-in-chief that the letter dated 7th April, 1970 was obtained by fear and threat of cancellation of the release. The signatory to the said letter, Mr. S. N. Daga was not examined by the plaintiff to substantiate the charge of coercion and, undue influence. In answer to question No. 73 put to him in examination-in-chief he has stated that by 'brand new prints' he meant those prints which were never exhibited in any cinema house before. Although subsequently he has tried to change his answer in answer to a leading question put to him by his counsel Mr. Dutt. Although he has stated in his examination-in-chief in answer to question 107 that the plaintiff has made complaints regarding the defective nature of the prints supplied to the plaintiff there does not seem to be any letter written by or on behalf of the plaintiff to the defendant No. 2 otherwise that letter would have disclosed and proved in this suit. Save and except that the plaintiff has tried to make out the case of detective nature of dupe prints and also of the case of undue influence and coercion at the time of execution of documents dated 7th April 1970 not a single letter was ever written by the plaintiff to the defendant regarding the same. It would also appear from the conduct of the plaintiff that after receipts of 12 brand new prints and 7 loan prints of the film 'Juari' the plaintiff did not complain to the defendant No. 2 regarding his objections. It is a positive case of the defendant No. 2 that at the instance of Mr. B. B. Daga dupe prints were prepared from one original negative by the said Messrs. Famous Cine Laboratories Ltd. and at his instance dupe prints were prepared. Had not that been the position the plaintiff would not have accepted and/or exhibited the dupe prints but would have straightway returned the same to the defendant No. 1 under protest. In fact the film 'Juari' has run in Bengal area for 3 weeks, which according to the practice is the normal run of a black and white picture. After receiving the prints, making part payment and fully utilising the prints the plaintiff for the first time made his case in the plaint which is contrary to the evidence and to his own conduct.
16. In this case the contractual obligation was subsequently converted into an out-right sale which was accepted by the plaintiff expressly and/or by implication, In this respect reference may be made to Section 42 and Section 13 of the Sale of Goods Act. Section 42 of the Sale of Goods Act provides-- 'The buyer is deemed to have accepted the goodswhen he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller or when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.'
17. Applying the above principles to the facts of the present case it would appear that the plaintiff not only accepted the goods but in fact used the same and has not decided to return the said prints and in fact the said prints are still with the plaintiff. Moreover, the plaintiff has not exercised its right under the section of the Sale of Goods Act. The property in the goods had passed as soon as the delivery was given in respect of the same and they were appropriated by the plaintiff irrespective of the payment of the price.
18. The next question arose whether the counter-claim is by itself maintainable. The expression 'counter-claim' found no mention in the provisions of the Civil Procedure Code of 1908, Still it cannot be said that the said expression was foreign to law. In a number of cases the expressions like 'counter-claim' or 'cross-claim' will be found to have been used in connection with the plea of set off.
19. Under the Civil Procedure Code a counter-claim by itself was incompetent and was enforceable by way of a separate suit. Order 8 Rule 6 read with Order 20 Rule 19 empowered the court to make an order enabling the defendant to set off the plaintiffs claim and pronounce judgment for the sum due by way of counter-claim in favour of the defendant. Of course, in appropriate cases, courts, could always grant equitable relief to the defendants, if necessary. As set out hereinafter, under the New Code specific provision has been made for counter-claim. Under Order 8, Rule 6-A Sub-rules (2) and (4) and Order 8 Rule 6-D if the suit of the plaintiff is discontinued or dismissed the counter-claim may nevertheless be proceeded with as in the case of a counter-claim written statement is really in the nature of a plaint. So even if the plaintiffs claim is not pressed or given up or withdrawn or breaks down for any reason whatsoever, the defendant has still the right to get a decree of a counter-claim as claimed in the written statement.
20. Order 8 Rule 6-A of the amended Civil Procedure Code provides -- 'A defendant in a suit may in addition to his right of pleading a set-off under Rule 6, set up by way of counter-claim against the claim of the plaintiff any right or claim in respect of acause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivery of his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court.'
Clause (2) -- 'Such counter-claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim'.
Clause (3) -- 'The plaintiff shall be at liberty to file written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court'.
Clause (4)-- 'The counter-claim shall be treated as plaint and governed by the rules applicable to plaint'.
21. Under the new amendment, by the Act of 1976 of the Code of Civil Procedure 1908 pending suits would be governed by the provisions of the new Code. As nobody has any vested interest in procedural law, as such the new amendment would be attracted in this case. On this point there is a Division Bench Judgment of this Court reported in AIR 1930 Cal 422. In that case it has been decided that no litigant has any vested interest on procedural law and any amendment to the procedure would govern also pending matters before the court. In this case, although counter-claim has been pleaded in the written statement of the defendant No. 2 the plaintiff did not seek for leave to file an additional written statement in answer to the counter-claim of the defendant nor the plaintiff at any time before the issues were settled applied to this Court for an order that such counter-claim may be excluded. Moreover, the plaintiff has discontinued its claim in the plaint in the sense that the plaintiff did not raise any issue, on the contrary submitted before the Court that the plaintiff has accepted the position and has raised no objection so far as the counterclaim is concerned.
22. Mr. J. N. Roy on behalf of the plaintiff although did not press his claim but most vehemently opposed the defendant No. 2's claim as made out in the written statement. Amongst other points his main point was that the defendant No. 2 has irrevocably assigned his right to Messrs, Famous Cine Laboratories and Studios Pvt. Ltd. to the extent of Rs. 90,000/-. As such no decree could be passed in favour of the plaintiff for the balance sum of Rs. 30,000/- as the sum of Rs. 60,000/- has already been paidby the plaintiff to the said Famous Cine Laboratories and Studios Ltd. In this respect, he referred to Section 130 of the Transfer of Property Act as also Division Bench Judgment of this High Court reported in (1906) ILR 33 Gal 702 and also (1907) ILR 34 Cal 289. There is no doubt that the benefits of a contract can be assigned and there can also be no dispute over the principle as laid down in the above two cases. On principle it is true that the benefits of a contract under a contract can be assigned. An order for payment of money is not an assignment. An assignment of a chose in action must be made in writing under the law signed by the transferor or his duly authorised agent but no particular form of words is necessary provided the words used sufficiently indicate the transferor's intention to assign the chose in action. The language is immaterial if the meaning is clear. An order for payment of money is not the same thing as an assignment of debt but it is only a direction to pay the amount due. The test is whether the right of the seller of the goods to the price' of the same has been transferred to a third party by an effectual assignment and the assignee becomes entitled as of right to the payment. In a case reported in AIR 1926 Cal 447 the Division Bench Judgment of this Hon'ble High Court presided over by the then Chief Justice Sandersun and Buck-land J. upheld the decision of the Hon'ble Mr. Justice C. C. Ghose and it was held that order for payment of money is not an assignment of debt. In that case the direction 'remit to B on behalf of E' was held not to amount to any assignment but only an order for payment Applying the above principles to the facts of this case I find that it would appear from the letter dated 7th April 1970 that the plaintiff and the defendant No. 2 agreed that the plaintiff would pay to Messrs. Famous Cine Laboratories and Studios Pvt. Ltd., Mahalakshmi, Bombay on account of the defendant No. 2 a sum of Rs. 90,000/- against delivery of 12 brand new prints. It would also appear from the letter dated 18th May 1970 that the plaintiff agreed to make the payment to Messrs, Famous Cine Laboratories and Studios Pvt. Ltd. on account of the defendant No. 2. Neither in the pleadings, correspondence nor in the evidence it has ever transpired that there has been an assignment of the benefits of the contract by the defendant No. 2 in favour of Famous Cine Laboratories and Studios Ltd. to the extent of Rs. 90,000/-. It is for the first time at the time of the argument that this point has been taken which is not borne out by the facts of this case. Had therebeen a true and proper assignment in favour of Messrs. Famous Cine Laboratories and Studios Ltd. by the defendant No. 2 then the plaintiff would have immediately protested to the defendant No. 2 regarding the claim of Rs. 30,000/- in answer to the various demand letters sent by the defendant No. 2 to the plaintiff. Moreover, Mr. Daga in his examination on commission has nowhere stated about the said alleged assignment.
23. Applying the above principles and in view of the facts stated above, I dismiss the plaintiff's claim in the suit and pass a decree for the sum of Rs. 70,000/- in favour of the defendant No. 2 together with interim and further interest @ 6 per cent and cost against the plaintiff.
24. Certified for two counsel.