1. The plaintiff claims a declaration that the defendant is not entitled to any payment under an agreement dated 24th December 1935, a refund of Rs. 6000 paid thereunder, and damages for breach of that contract. The agreement was in writing and provided that, in consideration of a payment of Rs. 11,001, the defendant would allow the plaintiff to use his cinematograph studio, equipment and staff for periods therein stated, for the purpose of producing a Bengali talking picture.
2. The plaintiff contends that there was an implied warranty that the equipment so hired was suitable for the purpose required, and be relies also upon the provisions of Section 150, Contract Act, and contends that the defendant was bound to disclose to the plaintiff faults in the goods bailed, of which he was aware, and which materially interfered with the use of them, and that he was responsible for the damage arising to the plaintiff directly from such faults, whether he was aware of them or not. The plaintiff alleges that the equipment was defective and was not fit and suitable for the purpose for which it was hired, as the defendant well knew, and that as a result, the two pictures produced therewith by the plaintiff were-failures owing to bad photography and bad sound recording, and that by reason thereof he has suffered loss and damage.
3. The defendant states that the letting was of the studio with such equipments as were then therein, that is to say, he denies that there was any such implied warranty. Further, he says that the equipments and apparatus were fit and suitable for the purpose for which they were let-out, and denies that there were any faults therein. Alternatively, he says that if there were any such faults, he was not aware of them, and that there was waiver on behalf of the plaintiff, because he proceeded with the production of his picture with notice of such faults. Further, he denies that the pictures were failures; alternatively he says that their failure was not due to bad photography or bad sound recording. When opening his case learned Counsel on behalf of the plaintiff, on being asked by the Court to state more definitely what were the defects about which his client complained, and upon which he sought to rely, stated that ha relied exclusively upon the contention that a part of the apparatus called the oscillograph did not function properly. Thereupon the following issues were framed and settled:
(1) Was there any such implied warranty? (2) Was the equipment defective or badly adjusted? (3) If so, were such defects known (a) to the defendant, (b) to the plaintiff, or could they have been known to the plaintiff if he had exercised reasonable diligence? (4) Was there waiver by the plaintiff in respect of such defects
4. The plaintiff's case, therefore depends in the first place upon whether it can be established that the pictures were failures, that this was due to bad photography and bad sound recording (See particulars given on 19th June 1936), and that this was caused by a defective oscillograph. The onus lay upon the plaintiff, and in my opinion he has failed to prove any of these allegations. The plaintiff is a young man who wished to try his hand at producing talking pictures. He had had no previous experience. This was his first venture. He had never previously been inside a film studio. He employed a production manager named A. C. Banerjee, and two Directors, named Hem Gupta and D. Bhattacharji, neither of whom had any knowledge of the technology of film production. Hem Gupta was one of the principal actors in the first film ' Byatha Dan ', and was the author of the story and part author of the scenario. He had never directed a picture before, though he had been an assistant director. Several of the artists were novices, including the heroine in the second picture, who had never acted in a sound film before, and none were of outstanding repute, even in Bengal.
5. The evidence does not show that any very careful tests were made of the voices of the artists to see whether they were suitable for the microphone. The voices of some people are suitable, of others not. Though editing is one of the most important parts of the process of film production, the plaintiff had no editor but employed the defendant's studio-director at a total salary of Rs. 150. Neither Hem Gupta, nor the assistant director have been called to give evidence. The evidence given on behalf of the plaintiff to the effect that the pictures were a failure owing to bad photography and bad sound production was not convincing. (After discussing evidence, the judgment proceeded further.) The conclusion that I draw from the evidence is that the films were not failures. They were average second class films, and quite creditable to the plaintiff as a first venture in film production and having regard to the fact that neither he nor his director had had any previous experience.
6. If the films failed to attract some audiences, this was not due either to bad photography or bad sound recording bud to deficiencies in the story, the direction and the artists employed by the plaintiff, There is also some evidence to show that the plaintiff was handicapped by lack of money, or, at any rate, was unwilling to spend more on the production than was absolutely necessary. These findings are sufficient to dispose of the case, but as there has been a prolonged contest about) the alleged failure of the oscillograph to function properly, I will deal shortly with the evidence upon this point. The plaintiff sought to support his case upon this issue in three ways, firstly by the evidence of experts based upon theoretical deductions from alleged facts; secondly, upon confessions about the inadequacy and deficiency of the equipment alleged to have been made by employees of the defendant: and thirdly, by evidence, both oral and documentary, that the oscillograph was in fact out of order during period when the films were being produced.
7. The expert evidence was unconvincing. It amounted to little more than an opinion, based upon some evidence, that the sound recording had overstepped the sound track, and upon the assumption that the sound was bad and that this might have been, and probably was, due to the defective functioning of the oscillograph, though it might have been due to other causes not connected with the oscillograph. Some of the plaintiff's so-called expert witnesses' appeared to me to be pretending to have technical knowledge which they did not in fact possess, and their evidence amounted to little more than guesswork. But the evidence of the defendant's experts showed that the possibility of the oscillograph failing to function properly was very remote, and that if anything of the kind happened, it would be detected immediately by a contrivance called the 'visual indicator.' In such circumstances, the> recording machine would be stopped and the oscillograph replaced by another. Six spare oscillographs were at all times kept at the studio for this purpose.
8. The evidence of Mr. Creed, which I have no hesitation in accepting, is conclusive upon this part of the case, and his evidence was unshaken even under Mr. Ghosh's very able and very expert technical cross-examination. The alleged confessions made by employees of the defendant, especially Gaffur, are in my opinion, frankly incredible. They have denied emphatically that any such confessions or admissions were ever made, and I accept their evidence. I do not believe the statements made about the equipment breaking down or being out of action because of inability to obtain spare parts in time, such as an oscillograph. Mr, Creed's evidence is conclusive on this point also, and if anything more were wanted to refute these allegations, there is the admitted fact that other films, such as 'Bengali', 'Queen of Hearts' and 'Abartan' were being produced at the same time and over the same period, which were successful. Production of a film does not proceed from day to day but intermittently, and other films may be, and were being produced at the studio in the intervening periods.
9. I am satisfied with the explanation given by the defendant of a letter dated 17th April 1936 written to the Customs Authorities about a supply of accessories, because it is confirmed by Mr. Creed's and Gaffur's evidence which I have accepted . On the question of waiver, the evidence establishes that tests are made by means of what are called rush prints from time to time during the production of a film, to see whether the production is proceeding satisfactorily. The plaintiff admits that this was done and that he proceeded, in spite of the fact that he was gravely dissatisfied, as he says with the results of these tests. He explains this by alleging that the defendant assured him again and again that the film would come out all right in the end. I do not believe that any such assurances were given by a defendant or by anyone, or that any of the conversation took place which the plaintiff alleges and the defendant denies. The fact that very little of the films was retaken, discounts the plaintiff's allegation that he was dissatisfied with the tests, Either he was satisfied or he was unwilling to spend money upon retaking, a considerable amount of which is necessary to produce any successful film, as all the witnesses on both sides acknowledged. Whatever the plaintiff thought, I am satisfied that he decided to proceed with the production of the film and take his chance of it being successful. This is confirmed by the fact that he ordered two more copies to be made, oven after the alleged failure of the exhibition at the Chitra Picture House.
10. Upon these findings of fact, the question of warranty does not arise, but if these findings had been otherwise, I am of opinion that there was no implied warranty and that, in such circumstances as the agreement discloses, the defendant) was not in the position of an insurer and was not responsible for latent) defects. As a general rule, if a person contracts for the hire and use of a specific article, there is no implied warranty by the owner that it is fit for the purpose for which it is required. He undertakes to deliver it in the state agreed for, but the hirer obtaining the thing agreed for takes the risk of its fitness and efficiency for his purpose. (See 'Leake on Contracts,' Edn.8, p. 275).
11. Such defects, if any, were not known either to the defendant or to the plaintiff, but obviously they could have been detected by the plaintiff if he had exercised reasonable diligence, because even the first test must have shown him that something was wrong, if in fact anything was wrong with the machine, about which, as I have held, there is no reliable evidence. The result is that there must be judgment for the defendant with costs. In view of this judgment it follows that there must be judgment for the plaintiff with costs, including reserved costs, if any, in Suit No. 961 of 1936.