P L D 1964 Supreme Court 337 (PLP)

B. Z. KAIKAUS, J.

This judgment will dispose of Appeal No. 2-D of 1963, which arises out of a suit for enforcement of the rights of the plaintiff-respondent in respect of a Bengali film named "Chandranath". Appeal No. 26-D of 1961, which arises out of an interlocutory order passed in the same suit will stand automatically disposed of. For a proper understanding of the matters in dispute it is necessary to state the facts in some detail. On the 13th June 1958, the Eastern Film Agency whose proprietor Muhammad Ali Khan is defendant No. 1 in this suit received an intimation from the Chief Controller of Imports and Exports that a licence for the import of a Bengali film of the value of Rs. 20,000 had been sanctioned in his favour and that he should deposit the requisite fee for the issue of the licence. It may be stated here, though the chronological order of the statement of facts is thereby interrupted, that the licence was actually issued only on the 26th of May 1960. On the 27th June 1958, defendant No. 1, in anticipation of the grant of an import licence entered into an agreement with Messrs Screen Classics of Calcutta, the proprietors of the film "Chandranath", for acquiring rights of distribution exhibition and exploitation of that film in East Pakistan, for a period of twelve years. On the 28th June 1958, defendant No. 1 entered into an agreement with the Star Film Distributors, the plaintiff in the present suit for transfer to them of rights of distribution, exhibition and exploita tion of the film "Chandranath" for a sum of Rs. 57,501, out of which Rs. 7,501 were paid and the remaining sum of Rs. 50,000 was to be paid in two instalments, Rs. 20,000 for opening the letter of credit in favour of the Screen Classics and Rs. 30,000 on receipt of the dupe negative. In this agreement there was a clause to the effect that if "Chandranath" was not available the plaintiff firm would be entitled to have another picture of its own choice imported by defendant No.

1. In accordance with the agree ment of 27th June 1958, the Screen Classics was also to supply a dupe negative of the film to defendant No. 1, and defen dant No. 1 in turn by the agreement of 28th June 1958, agreed to transfer the dupe negative also to the plaintiff. In spite of these agreements the import of the picture was delayed because the licence which had been sanctioned was not actually issued on account of a general stay order granted by the Karachi Bench of the High Court of West Pakistan in a Writ Petition filed by one Captain Rahman who is a stranger to these proceedings. On the 19th September 1958, the plaintiff received a letter from defendant No. 1 to the effect that the agreement between defen dant No. 1 and the Screen Classics had become infructuous as he (defendant No. 1) had failed to open, in accordance with the terms of that agreement, a letter of credit within four months of the agreement dated 27-6-1958, with the Screen Classics. There was a clause in the agreement of 27th June 1958, that if a letter of credit was not opened within four months the Screen Classics was entitled to treat the agreement as null and void. On receipt of this letter the plaintiff, apparently accepting that the agreement on 27th June 1958, had become null and void, replied that there was a clause in the agreement of 28th June 1958, permitting the plaintiff to have a picture of his own choice in case Chandranath was not available. The plaintiff told defen dant No. 1 that his choice was for film "Shilpi" and he requested defendant No. 1 to import that film. Defendant No. 1 in the first place denied that there was any such clause in the agree ment and asked for a copy of the agreement. A number of letters then passed between the parties and ultimately on the 11th March 1960, defendant No. 1 withdrew all his previous letters by which the agreement of 28-6-1958, was being repudi ated, and accepted by a writing under his hand that the agreement was still in force. The import licence had not as yet been issued. The plaintiff gave up his demand for Shilpi and it was agreed between the parties that the choice of the plaintiff would be given after the licence was received. A further sum of Rs. 2,900 out of the consideration was paid to the defendant although in accordance with the terms of the agreement there were only two further payments to be made i.e., Rs. 20,000 for the opening of the letter of credit and Rs. 30,000 on the delivery of the dupe negative. Here the narrative has to be interrupted by a reference to what in the meantime was happening between defendants Nos. 1 and

2. According to the story put forward by defendants 1 and 2, on the 26th August 1959, there was an agreement between them by which Sibtain Fazli defendant No. 2 agreed to provide a sum of about Rs. 30,000 for meeting the expenses to be incurred in connection with the exploitation of the film which might be imported by defendant No. 1 in East Pakistan in consi deration for the grant of the right of distribution of that film by defendant No.

1. Profits arising from the exhibition of the film were to be shared half and half by the parties. Out of this sum of Rs. 30,000 about Rs. 20,000 were to be spent for opening a letter of credit and the balance was to be paid in cash to defendant No.

1. Rs. 10,000 which were to be paid in cash to defendant were not to be refunded even if no licence was Issued at all. There was a statement in this deed as to an assurance by defendant No. 1 that there was no previous commitment at all with respect to the film to be imported, with any other party. On the 18th December 1959, defendant No. 1 wrote to defendant No. 2, saying that he was now sure to get the exclusive rights of distribution etc. of the film "Chandranath" and, therefore, the sum of Rs. 30,000 as initially agreed in the agreement of 26th August 1959, should be paid. On the 3rd of February 1960, defendant No. 1 again wrote to defendant No. 2 repeating the great likelihood of his importing "Chandranath". At this defendant No. 2 agreed not only to pay Rs. 5,000 in cash forthwith but to pay an additional sum of Rs. 60,000 against delivery of the print of that film. On the 26th February 1960, there was a fresh agreement offered by defendant No. 1 to sell all his rights in the film "Chandranath" to defendant No. 2 for a total consideration of one lac and sixty thousand rupees. On the 29th February 1960, this offer was accepted and a sum of Rs. 6,000 was paid to defendant No.

1. The facts narrated in this paragraph are not accepted by the plaintiff who contends that the various agreements and letters are all spurious documents, but it was necessary to explain at this stage what, in accordance with the contention of defendants 1 and 2 was the position on the 11th March 1960, when defendant No. 1 confirmed the agreement which he had made with the plaintiff. On that date he had already entered into more than one agreement with defendant No. 2 in respect of Chandranath and had received a sum of Rs. 16,

000. There is no mention in his letter of the 11th March 1960, by which he confirmed the agreement of 28th June 1958, of any agreement which defendant No. 1 may have made with defendant No.

2. The plaintiff appears to have entertained a suspicion on 22-9-1959 that defendant No. 1 was contacting other distribu tors of filrqs, because the plaintiff sent a copy of the letter of 22-9-1959, as also copies of some subsequent letters addressed to defendant No. 1, to a number of distributors including defen dant No.

2. On 26th May 1960, defendant . 1 received the import licence and by a letter dated the 30th May 1960, he asked the plaintiff to open a letter of credit for the import of a Bengali film of his choice. The plaintiff stated in reply that his choice was for the film "Chandranath." Here some litigation relating to the film "Chandranath" has to be referred to. This film had been produced by the Screen Classics, but rights of its distribution, etc. had been transferred by the Screen Classics to the Narayan Pictures Ltd. of Calcutta. The Screen Classics claimed that circumstances existed entitling them to cancel the contract with the Narayan Pictures and the Screen Classics filed a suit in the Calcutta High Court for an injunction restraining Narayan Pictures from exploiting Chandra nath; for damages; and for some other reliefs. A temporary injunction had in fact been issued by the Calcutta High Court restraining Narayan Pictures from exploiting Chandranath during the pendency of the suit. On account of this suit a conveyance of the rights In Chandranath could be safe only if both Screen Classics and Narayan Pictures became parties to the deed of transfer. Efforts were made to persuade Narayan Pictures to join in the execution of the deed of conveyance, Screen Classics being already willing to act in accordance with the agreement of 27th June 1958. The case of the plaintiff is that it was through the efforts of Sherally, a partner in the plaintiff firm that Narayan Pictures were persuaded to be a party to a deed of conveyance while according to defendant No. 1 it was the effort of Mr. S. K. Vakil, a friend of defendant No. 1 that succeeded. Both the Courts below have found that it was Sherally who was instrumental in securing the consent of the Narayan Pictures. With the permission of the Calcutta High Court a deed which is called the tripartite agreement was executed on the 24th August 1960, as between Screen Classics, Narayan Pictures and defen dant No. 1 and by it the rights of distribution, exhibition and exploitation of "Chandranath" in East Pakistan were transferred to defendant No. 1 for a period of ten years (not twelve years as originally agreed) along with a dupe negative of the film. In this agreement Narayan Pictures were shown as the party that transferred the rights and Screen Classics as the party that confirmed the transfer. Defendant No. 1 then called upon the plaintiff to open a letter of credit and the plaintiff did open a letter of credit for a sum of Rs. 20,000 for importing Chandra nath. On the 25th of August 1960, the plaintiff issued a cheque of Rs. 20,000 for opening a letter of credit and defendant No. 1 handed over the original of the tripartite agreement to the plaintiff. At the same time the plaintiff agreed to pay an addi tional sum of Rs. 17,500 against delivery of the dupe negative of Chandranath. The plaintiff had, by this time, paid a total sum of Rs. 37,501 to defendant No. 1, and defendant No. 1 confirmed by a writing that this amount had been received. On 5-10-1960, publicity material of the film was handed over by defendant No. 1 to the plaintiff, and a sum of Rs. 498-13-9 was paid by the plaintiff for bank charges. On 13-10-1960, defendant No. 1 informed the plaintiff on the telephone that the film "Chandranath" was lying with the Customs and that he should pay the custom duty etc. The plaintiff firm showed its willingness to pay the custom duty. Defendant No. 1 also told the plaintiff that he had lost the requisite papers on presentation of which the film was to be released and he asked the plaintiff to exercise the authority which had been given to the plaintiff by the deed of 28th June 1958, to act as Attorney of defendant No. 1 for the purpose, inter alia, of receiving the negative from the Customs in case defendant No. 1 failed to perform his obligations. The plaintiff thereupon deposited a sum of Rs. 5,333-8-0 in the Treasury as custom dues and a partner of the plaintiff went to take delivery of the film when to his astonishment he received the information that defendant No. 1 had in collusion with. defendant No. 2 already taken delivery of the dupe negative from the Customs Authorities on that very day I.e., the 15th October 1960. On 21st October 1960, the plaintiff-firm filed the present suit for a declaration that the rights of distribution, exhibition and exploitation of the film Chandranath in relation to East Pakistan vested in it, for an injunction restraining defendants 1 and 2 from making use of the film and for a mandatory injunction directing the defendants to deliver the dupe negative to the plaintiff. Defendant No. 1 accepted the agreements of 27th June and 28th June, but pleaded that the agreement of 27th June failed because no letter of credit was opened within four months and as a result the agreement of 28th June 1958, also became void and of no effect. He stated that he had by a letter of 3rd Novem ber 1958, addressed to the Screen Classics confirmed the cancel lation of the agreement by the Screen Classics and then on the 26th August 1959, he had entered into an agreement with defendant No. 2 for half share of the net profits of the film which may be imported. Later he had entered into an agreement for an outright transfer of all his rights in Chandranath to defen dant No.

2. The tripartite agreement was according to him the result of the efforts of his patron Mr. S. K. Vakil. The letter of the 11th March 1960, was, he pleaded, of no legal effect, being the result of coercion and undue influence. He had ultimately decided to hand over the dupe negative of Chandranath to defendant No. 2 on independent legal advice. The main plea of defendant No. 2 who denied generally the allegations made in the plaint was that he was a bona fide purchaser of the rights of exploitation of the film Chandranath for consideration and without notice of any agreement in favour of the plaintiff. He had paid to defendant No. 1 a sum of Rs. 81,000 out of a total consideration of Rs. 1,60,000 for all the rights that defendant No. 1 had in Chandranath. Defendant No. 2 also pleaded that the agreement of 28th June 1958, was contrary to Martial Law Regulation No. 41 which prohibited transfers of import licences. The following issues were framed by the trial Court. (1) Has the plaintiff exclusive right and title to distribute, exhibit and exploit the film Chandranath as alleged in the plaint ? (2) Is the defendant No. 2 a bona fide purchaser of the suit film for consideration without notice of plaintiff's purchase of the same as alleged ? (3) To what relief, if any,' is the plaintiff entitled. The genuineness of the agreements of 27th June 1958 and 28th June 1958, was not contested before the Subordinate Judge. He found that the plaintiff had a valid agreement in his favour for transfer to him of the rights of exploitation as well as the dupe negative. He refused to accept that the letter dated the 11th March 1960, by defendant No. 1, was the result of coercion or undue influence. There was in fact little evidence on that point. The Subordinate Judge did not accept that the defen dant No. 2 was a transferee of the film. On a consideration of the various documents produced by defendant No. 2 he came to the conclusion that they were all fabricated and antedated and the result of an unholy alliance between defendants 1 and 2, the object of which was to defeat the rights of the plaintiff, the agreement In whose favour could not be denied. The Subordi nate Judge found also that defendant No. 2 had full notice of the agreement in favour of the plaintiff. In the witness-box defendant No. 2 had admitted that he had received copies of a number of letters sent by the plaintiff to defendant No. 1 beginning from that written on the 22nd September 1959. He had even accepted that in 1959, he had a talk with Sheraly a partner of the plaintiff, that he had an idea that at that time Sheraly had an agreement for Chandranath and that he himself was not thinking of Chandranath at that time. There were several points argued before the Subordinate Judge and objec tions were raised also to the form of suit, but all the contentions of the defendants were repelled. The suit for a declaration was decreed as prayed for, but instead of the injunctions sought by the plaintiff the Subordinate Judge granted a decree for possession of the dupe negative holding that the suit was substantially one for possession of the dupe negative. He directed the plaintiff to pay court-fee on a sum of Rs. 57,501 on the ground that the suit was one for possession. Against this decree only defendant No. 2 filed an appeal in the High Court. The learned Judges of the High Court generally confirmed the findings of the Subordinate Judge. With respect to the documents produced by defendant No. 2 the discussion in the judgment of the High Court shows that the learned Judges were not prepared to accept the documents as genuine, but while recording their finding they said they did not want to go to the extent of saying that the documents were all forged and contented themselves by holding that defendant No. 2 was not a transferee in good faith. Before the High Court it was urged that- (i) the suit should have been for a specific performance of a contract and not for a declaration of a right ; (ii) that the agreement of 27-6-1958 had become null and void and the agreement of 28-6-1958 was therefore frustrated ; (iii) that the plaintiff having abandoned his claim of Chandranath and exercised his option for "Shilpi", there was no cause of action for a suit for Chandranath ; (iv) that rights of exploitation of a film produced in India were not recognisable as a right in Pakistan, the right claimed being a copyright and India not being one of the countries to which the Pakistan Copyright Act is applicable ; (v) that the agreement of 28th June was an attempt to sell an import licence and therefore void. The Division Bench of the High Court which heard the appeal held on the first contention that the plaintiff possessed rights of exploitation of the film and by virtue of that right was entitled to the possession of the dupe negative of the film. On the second point the learned Judges came to the conclusion that the agreement never became void and remained in force, because the agreement only gave the Screen Classics an option to cancel the contract if letter of credit was not opened within four months and the Screen Classics never exercised that option. On the third point it held that there was no abandonment of the claim relating to Chandranath because the abandonment was based on a representation made by defendant No. 1 and accepted by the plaintiff that the agreement of 27th June 1958, had become null and void, whereas in fact it had never become null and void. On the fourth point it was held that there had been a proper transfer of the rights of exploitation in accordance with the law of India by a deed executed in Calcutta ; that the present case was not one of the infringement of a copyright, but of a contest between two persons each of whom claimed to be entitled to the rights of exploitation ; and that it was open to the Courts in Pakistan to take notice of a right created by Indian law in the absence of anything in the law of Pakistan to the contrary. On the fifth point it was found that the agreement took place at a time when there was no licence issued to defendant No. 1 so that the question of transfer of a licence did not arise and that the agreement was a simple agreement for transfer of property. On these findings the appeal was dismissed. The appeal to this Court is by defendant No. 2 alone. The substantial defence of defendant No. 2 on the merits was that he was a transferee in good faith and for considera tions and in this defence he signally failed. The first agree ment he alleged is of 26-8-1959. This agreement does not purport to transfer any rights of exhibition or exploitation and only declares that any film which may be imported under the licence of defendant No. 1 was to be distributed by defen dant No. 2 who was to get one half of the profits. This document was not accepted as genuine by either of the Courts below and when the reasoning of the High Court is examined it is difficult to find fault with it. The only persons who prove the document are defendants 1 and

2. There is no marginal witness. The document purports to have been executed at Dacca on 26-8-1959, by Sibtain Fazli defendant No. 2 and M. A. Khan both of whom have signed it, but Sibtain Fazli had to accept in cross-examination that he was not at Dacca on that date but was in Karachi. In order to explain how the agreement came into existence if he was at Karachi, defen dant No. 2 stated that it was his brother-in-law Panni who had settled the terms of the agreement, but Panni was not produced as a witness and defendant No. 1 in his statement in the witness box did not refer to Panni at all. A sum of Rs. 5,000 had according to the recital in the agreement been paid to defen dant No. 1 on the signing of the agreement. This sum was said to have been paid not by cheque but in cash, and there is no proof of the payment of this sum of Rs. 5,000 except the word of defendant No. 2 himself for defendant No. I does not depose to it. There is no explanation as to how this money could be paid when defendant No. 2 was in Karachi for he does not say that Panni paid this amount. Defendant No. 2 was called upon to produce his accounts but, in the words of the High Court, "he flatly refused to do so". When we consider the statement which defendant No. 2 made with respect to the remaining documents the observations of the High Court, throwing doubt on the genuineness of those documents can well be appreciated. All the letters which are signed by defendant No. 2 purport to have been written at Dacca. Defendant No. 2 was asked in cross-examination whether it was not true that on the dates on which these documents purport to have been written he was not at Dacca at all but was in West Pakistan. He gave a vague reply that on some of the dates he was not at Dacca. He was then asked to pick out the letters on the dates of which he was at Dacca. He was unable to pick out a single letter. In view of what is stated above and considering that the only persons who are proving these documents are the defendants themselves, it is difficult to hold the documents as proved. One thing, however, we will state. All the documents produced cannot be fabricated. There has at some stage been an agreement between defendants 1 and 2 though when exactly that happened may not be clear. But even if the case of defendants 1 and 2 on the question as to the existence of an agreement between them is accepted, it is obvious and in fact now it is not denied that defendant No. 2 had notice of the contract in favour of the plaintiff. He had a talk with Sheraly, according to his statement, in 1959, and he had been receiving copies of the letters written by the plaintiff to defendant No.

1. Under the circumstances his intention in entering into an agreement with defendant No. 1 was to defeat by some means the already existing contract in favour of the plaintiff. He appears to have been of the opinion that Chandra nath would bring big profits for according to his own showing be had purchased the rights in Chandranath for a sum of Rs. 1,63,000 though the rights had been purchased for Rs. 20,000 by defendant No. 1 and the agreement with the plaintiff was for Rs. 57,

501. Defendant No. 1 was induced by the very high price offered by defendant No. 2 to commit a breach of his contract with the plaintiff. Defendant No. 1 stated in the witness-box that according to- the agreement between him and defendant No. 2, the latter was to pay Rs. 37,501 to the plaintiff, but defendant No. 2 refused to carry out his obligation. Defendant No. 2 has not in the witness-box repudiated this statement of defendant No.

1. On the record there is abundant justification for the view of the High Court that defendant No. 1 was not acting in good faith. Before us the following points have been raised by Mr. Brohi who appears for the appellant ; (i) the agreement of 27th June 1958, was dependent on the issue of an import licence ; the licence contemplated was confined to the shipping period of 1958 ; no such licence was issued the result being a frustration of the contract ; (ii) by a letter dated the 22nd September 1959, the agreement as to C handranath had come to an end; the plaintiff exer cised the option with respect to "Shilpi" ; therefore, suit for Chandranath did not lie ; (iii) the acquisition of the dupe negative was the result of the tripartite agreement dated 24-8-1960, and that had nothing to do with the agreement of 27th June 1958, and before in the meantime Le., after 27-6-1958, and before 24-8-1960, defendant No. 2 had acquired the rights of exploitation from defendant No. 1 ; those rights had preference over the rights claimed by the plaintiff ; (iv) the suit as framed was not maintainable because Indian copyright was not recognised in Pakistan ; (v) the suit was not maintainable in the form in which it had been filed because the property in the dupe negative had not passed to the plaintiff and the suit could only have been filed for specific performance ; (vi) agreement of 28th June 1958, amounts to transfer of an import permit and is, therefore, void. As regards the first point, there was no plea in written statements of defendants 1 and 2 that the licence actually granted was different from that which was sanctioned on 13-6-1958. The point was argued before the trial Court, but having been decided against the defendants was not urged before the High Court. A reference to the record shows that the contention is without any basis. There was no mention of any shipping period in the letter by the Chief Controller of Imports and Exports dated the 13th June 1958, intimating that a licence had been sanctioned. The Government having decided to import ten Bengali and five Urdu/Hindi Indian films had, by a public notice dated 9-1-1958, invited applications for import licences relating to such films. This notice mentioned no shipping period. There was no time limit fixed by the Govern ment for import of films. The letter of 13-6-1958 by the Chief Con troller of Imports and Exports directed defendant No. 1 to deposit fees for the issue of a licence and a licence would have been issued shortly afterwards in the ordinary course, but on a writ petition filed by a third party the High Court had stayed grant of import licences for films from India. That the licence which was ultimately issued was the same as was sanctioned on 13-6-1958 is apparent from the letters written by defendant No. 1 himself to the Chief Controller of Imports and Exports. A number of these letters are on file and they show that defendant No. 1 was only asking for the issue of the licence already sanctioned on 13-6-1958. In the letter of 23-12-1958 defendant No. 1 said "we have already been allotted a licence for a Bengali film and the same could not be issued so far due to pendency of writ petition and prohibitory orders of the High Court". In the letter of 18-3-1959 defendant No. 1 said: "We have the honour to remind you that an import licence for Indian film already sanctioned to us is still under your consideration". Similar statements appear in letters dated 22-1-1960, 10-2-1960 and 16-2-1960. It was in reply to these letters that the licence was ultimately issued. We find no force in this contention. Coming to the second point raised, the letter of 22-9-1959 on which the contention of defendant No. 2 is based runs as follows :- "We understand that, necessary Import Licence to import a Bengali picture has been issued to you by the Government. In terms of our Agreement dated 28-6-1958 with you, you were to import the picture "CHANDRANATH" belonging to Messrs Screen Classics, Calcutta, with whom you entered into an agreement on 27-6-1958. It appears that the obligations of the agreement between yourselves and Screen Classics have ceased. Be it noted that, under clause 5 of our- aforesaid agreement, we have the right to procure another picture of our choice on your failure to import CHANDRANATH and you are required to import the same after completing necessary formalities, we hereby inform you that, we have arranged to procure the picture "SHILPI" and we request you to do your part of the agreement within three days of receipt of this letter, failing which we will place all our papers to our lawyers to take legal proceedings." In this letter, it will be observed, the demand for Chandranath has been given up on the assumption that the agreement relating to Chandranath had become null and void, and the plaintiff has exercised his option for "Shilpi". The case of the plaintiff is that this letter was written on account of a representation made by defendant No. 1 that the Screen Classics had terminated the agreement, which representation was not true. There was an oral representation as to this fact and there was also a representation contained in the letter dated 19-9-1959, from defendant No. 1 to the plaintiff, which is in the following words "Referring to your telephonic talks you had with the undersigned regarding the agreement we entered into with you for the exploitation right of an Indian film "CHANDRANATH" produced by Messrs Screen Classics of 122, Upper Circular Road, Calcutta-6 in the strength of an agreement entered into with them on the 27th day of June 1958, we are really surprised to note such remarks passed by you over telephone. Whereas it is clearly known to you that the said agreement with Messrs Screen Classics became null and void long ago due to the fact that we could not open Letter of Credit in favour of them within the stipulated time due to some unavoidable circumstances well-known to you vide Clause No. 9 of the said agreement reading as "that the Distributors do hereby undertake to open an irrevocable Letter of Credit within (4) months from the date hereof for a sum equivalent to Rs. 20,000 in Pak. currency payable to the producers at Calcutta against delivery of Air Consignment Note and Indian Customs Certificate regarding the despatch of the print of the said film and send intimation to the producers accordingly. In the event of the Distributors' failure to do so the producers shall be entitled to treat this agree ment as null and void without any further notice . to the distributors and deal with the distribution rights of the said film for East Pakistan in any manner the producers choose and the Distributors shall have no claim whatsoever, on the film CHANDRANATH or on the producers', the agreement we entered into with you for "CHANDRANATH" also became null and void long ago and as such the remarks passed by you through telephone does not arise at all." By clause 9, it will be observed, the agreement would not become null and void simply because a letter of credit was not opened, but the Screen Classics had the option to treat it so. Mr. Alain, a partner of the plaintiff firm, who is responsible for sending the letter of 22-9-1959 stated in the witness box that he wrote this letter because of a representation made by defendant No. 1 that the Screen Classics had cancelled the contract relating to Chandranath. Defendant No. 1 who appeared in the witness box after Mr. Alam did not contract him, but stated : "my contract with the Screen Classics stood cancelled on account of the cancellation of my contract by the Screen Classics". The position taken up by both the defendants was that in fact the Screen Classics had cancelled the contract by virtue of the power ft had according to clause 9 of the agreement, if a letter of credit was not opened within four months Defendant No. 1 stated in the witness box that in November 1959, he had received information from Mr. Vakil as to the cancellation of the contract by the Screen Classics, and he had written a letter to the Screen Classics, confirming this cancellation. He produced what purported to be a copy of this letter. Mr. S. K. Dutta, the Manager of the Screen Classics stated in the witness box that the Screen Classics had never cancelled the contract and that the alleged letter confirming the cancellation had never been received by, them. Both the Courts below after a full discussion came to conclusion that there was in fact no cancellation by the Screen Classics and that there was a misrepresentation by defendant No. 1 to the plaintiff as to such cancellation. We see no reason to differ from this concurrent finding and if the letter of 22-9-1959 was due to a misrepresentation by defendant No. 1, the abandonment conveyed by it is of no legal effect. At the same time, as pointed out by the High Court if there was no misrepresentation and both parties had been labouring under a misapprehension that the contract had been cancelled, the abandonment due to a E mutual mistake, would not affect the plaintiff's rights. Under section 20 of the Contract Act an agreement based on a mutual mistake is void and the same principle will apply to an abandon ment of a right under a contract. The next point for consideration is whether the tripartite agreement by which Chandranath was acquired was independent of the agreement dated 27-6-1958. This contention could truly speaking fall for consideration only in relation to the plea of defendant No. 2 that he is a bona fide transferee for value without notice for so far as defendant No. I is concerned there is little room for a plea that he was not bound to deliver Chandranath because he acquired it by the tripartite agreement. Defendant No. 1 bad on 11-3-1960, agreed that when he receives the licence the plaintiff will make his choice as to, the film to be imported and the plaintiff had selected Chandranath. On 25th August 1960, that is, one day after the execution of the tripartite agreement he had received a sum of Rs. 20,000 from the plaintiff for opening an L. C. with respect to Chandranath and had delivered to him the original of the tripartite agreement. Defendant No. 1 opened the L. C., informed Narayan Pictures by letter, and sent a copy of the letter to the plaintiff. On 26th August 1960 he received a further sum of Rs. 2,

000. Sheraly had been authorized by defendant No. 1 for receiving the publicity materials. All this shows that defendant No. 1 agreed to transfer the film to the plaintiff though he got it by the tripartite agreement. In fact, having taken the benefit of the efforts of Sheraly he could not repudiate the assumption which underlay those efforts. The contention on behalf of defendant No. 2 is that if Chandranath was acquired by defendant No. 1 not on account of the agreement dated 27.6‑1958, but independently then the plaintiff could not be entitled to this film under the first part of the agree ment dated 28‑6‑1958 which part relates exclusively to "Chandra nath", and so far as the option clause in the agreement is concerned the plaintiff who had exercised his option in favour of "Shilpi" and had abandoned Chandranath by his letter dated 22‑9‑1959, will not be entitled to Chandranath even if the abandonment of Chandranath be based on a misrepresentation, because in the meantime defendant No. 2 had acquired rights in Chandranath, and although defendant No. 2 may have had notice of the agreement of 28‑6‑1958, the abandonment of Chandranath will give defendant No. I priority over the plaintiff. Whether the plaintiff would not be entitled to Chandranath under the first part of the agreement of 28‑6‑1958 even if Chandranath was acquired independently of the agreement of 27‑6‑1958 is a matter which is discussed later in this judgment. Here we will consider only the contention whether in fact its acquisition was indepen dent of the agreement of 27‑6‑1958. There is a finding of fact by both the Courts below that the tripartite agreement was the result of the efforts of Sheraly the partner of the plaintiff. The Courts below have relied in this con nection on the statements of Sheraly, S. K. Datta, Manager of Screen Classics, and.Phani Bhushan Maulick, Secretary, Narayan Pictures. Mr. S. K. Datta states "In 1960 June, Mr. Sher Ali informed me that the import licence had been obtained that we should honour the agreement and arrange for the due compliance of the custom and other formalities. We told him that as a suit between us and the Narayan Pictures it was not possible for us to comply with the formalities without the written consent of the Narayan Pictures. Sher Ali then mediated into the matter and through his intervention we arrived at a tripartite agreement among our selves the defendant 1 and the Narayan Pictures. I have brought the tripartite agreement deed. The defendant No. 1 gave us a letter on 27‑6‑1958 authorising Mr. Sher Ali to receive delivery of publicity materials. This is the letter Exh. 3 (d) (1). Mr. Vakil never approached us over any film". Mr. Phani Bhushan Maulick has said "There was a tripartite agreement on 24th August 1960, among Screen Classics, ourselves and the defendant

1. This is the agreement (admitted by all parties) Exh.1. We obtained permission of the High Court for this agreement. This agree ment was brought about at the mediation of Sher Ali L. Ramji, a partner of the plaintiff‑firm. He was a witness. I was also a witness. 4 original copies of this agreement were made. The defendant 1 took 2 original copies. We took one. The Screen Classics took one. At the time of execution of the agreement, Md. Ali Khan told us that the film was meant for the plaintiff. We gave publicity materials to J. N. Roy, the Karmachari of the plaintiff. The defeydant introduced J. N. Roy to us. This is the despatch note signed by me Exh.

2. J. N. Roy also signed in token of his receipt." It is clear from a perusal of the statements of these three witnesses that Sheraly approached the Screen Classics to honour their agreement of 27‑6‑1958 ; he was told by Screen Classics that on account of the pending litigation for the execution of a conveyance it was proper to get the consent of Narayan Pictures ; Narayan Pictures were approached by Sheraly ; and the consent having been obtained, the deed was executed. Great stress has been laid on the fact that the Narayan Pictures were shown as the party effecting the transfer while Screen Classics were shown as the confirming party. To the question whether the tripartite agreement was an independent one or was executed in pursuance of the agreement of 27‑6‑1958 the form of the transfer makes no difference. As already stated the Narayan Pictures claimed that they had still the rights of distribution, while the Screen Classics contended that the agreement for distribution of the Narayan Pictures had been validly cancelled, and the Screen Classics had obtained an interim injunction from the Court forbidding distribution by Narayan Pictures. The Narayan Pictures would not want to concede that they had no rights of distribution and they may therefore have insisted that they should act as the transferors. The form which the transfer took was the result of a compromise permitting each party a part in the execution of the document so that its position in the litigation may not be prejudiced. Although called the confirming party the Screen Classics also, became in law the transferor, because even if the rights of distribution vested on the date of the deed only in the Screen Classics those rights would stand transferred. That the defendants regarded both Screen Classics and Narayan Pictures as the transferors appears clearly from the letter of 26‑2‑1960 by defendant No. 1 to defendant No. 2, a document which was produced and relied upon by defendant No. 2 and which according to the statement in the witness‑box of defendant No. 2 is the basis of the payments made by him to defendant No.

1. This letter says: "We have the pleasure to inform you that all the terms and conditions with Messrs Narayan Pictures Ltd., and Messrs Screen Classics for the Bengali film "Chandranath" have been finalized. They shall give us the sole exclusive rights of distribution, exhibition and exploitation of the said film for a consideration of Rs. 20,000." At the same time the publicity materials as well as the original of the tripartite agreement were handed over to Sheraly when the tripartite agreement was signed. Ii may also be stated here that, as appears later in this judgment, copyright of Indian origin is snot recognized by this country so that the agreements of 27‑6‑1958 and 28‑6‑1958 and the tripartite agreement, though they relate to the rights of exploitation of the film as well as the dupe negative actually affect only the dupe negative and the dupe negative as is mentioned in the tripartite agreement itself had been provided by the Screen Classics and not by the Narayan Pictures and its price was to go to Screen Classics alone. The only property, therefore, which was legally transferred came from the Screen Classics and not from the Narayan Pictures. The real question for consideration before us is only whether the circumstance that defendant No. 1 acquired the Chandranath by the tripartite agreement relieves him of his obligation under the first part of the agreement of 27‑6‑1958 and the answer to this question must be in the negative. The fact that the plaintiff had to persuade another party to join in the transaction does not absolve defendant No. 1 of his obligation. The option clause would come into play, according to the words of the agreement of 28‑6‑1958, only if there was "any difficulty or hitch arising in the due fulfilment of the said agreement on the part of Messrs Screen Classics". Such a situation never arose for the consistent position of the Screen Classics as found by the Courts below has been that they never repudiated the agreement and ultimately performed it. So what has happened is that in executing the tripartite agreement the Screen Classics was only performing its obligations under the agreement of 27‑6‑1958 while the Narayan Pictures joined because of the efforts of the plaintiff. There was no basis under these circumstances for any plea on the part of defendant No. 1 that he was not bound to deliver Chandranath under the first part of the agreement of 28‑6‑1958. The next point to consider is whether the right of exhibition or exploitation of the film Chandranath is a right recognised in this Country and enforcible by its Courts. That the rights of exhibition and exploitation are within the definition of copyright is not contested. The position in Pakistan with respect to copyrights of foreign origin is as follows. In 1911 the British Parliament enacted the Copyright Act which as provided in section 25 was to apply to all British dominions including India. It came into force in India, however, on 31st October 1912, when there was a proclamation by the Government of India in the official Gazette under section 37 (2) (d) of the Act. In 1914 was enacted the Indian Copyright Act, which made some modifications in the (English) Copyright Act in its application to India which are not relevant for the present discussion. The (English) Copyright Act protected only such copyright as had its origin in the British dominions, but there was a provision in section 29 empowering His Majesty, to apply the Act, by an order in Council, even to a foreign country. When India was partitioned the (English) Copyright Act, as modified by the Indian Copyright Act became applicable to both countries but the two countries became foreign countries for each other, and there being no Order in Council relating either to India or to Pakistan, Copyright having its origin in one country was deprived of protection in the other. Copyright of Indian origin is not recognisable in Pakistan and the same is the position with respect to copyright of Pakistani origin in India. India hate now repealed the Act of 1911 and has enacted the Copyright Act of 1957, but the last mentioned Act has not affected the situation in relation to Pakistan. One may feel inclined to grant a copyright apart from the provisions of the Copyright Act on general principles, but there is an express bar in section 31 of the (English) Copyright Act to the existence of any copyright apart from the provisions of the Act. If the right cannot be found within the four corners of the Act, it must be rejected. The learned Judges of the High Court did not say that copyright of Indian origin was recognisable in Pakistan. They were of the opinion, however, that a Pakistan Court could while determining the rights of contending parties recognise the Indian law and determine the rights of parties in accordance with Indian Law having regard to the principles of Private International Law. The reasons for the decision of the learned Judges are contained in the following passage in the judgment of Khan, J.‑ "Accordingly protection against infringement of copyrights of foreign origin can be given in Pakistan, as occasion arises, by applying the provisions of the Copyright Act, 1911 to foreign copyrights under section 29 of the Copyright Act, 1911, by an Order of the President of Pakistan. It was submitted on behalf of the appellant that when no order under the said section applying the said Act to the Copyright in the Indian film "Chandranath" has been made so far, that copyright is not recognisable by Courts in Pakistan. This contention cannot be accepted as sound. What is involved in this case is not infringement of the copyright in the film "Chandranath" of remedy for its infringement, but a claim of the contending parties to copyright, namely, the right of distribution, exhibition and exploitation of that film in East Pakistan. As the copyright in that film is of Indian origin and was assigned in India under the Indian law for its enjoyment in a part of Pakistan, the suit filed here necessarily contains a foreign element. In such a case, as this Private International Law comes into operation inasmuch as the Court is seized of a suit that contains a foreign element. Here, the contending parties and the subject‑matter of the suit are within the jurisdiction of a Court in Pakistan. Also the cause of action for the suit arose within the jurisdiction of that Court. Therefore, the Pakistan Court is competent and called upon to determine the rights of the contending parties, and in doing so, the Court, as enjoined by the principles of Private Internal Law, ought to recognise the Indian Law, I.e., the Indian Copyright Act, 1957, and determine if the right of distribution etc., of the film "Chandranath" was duly assigned to a resident in Pakistan in accordance with the provisions of that law and, if so, to enforce that right, unless there is any prohibition against recognition and enforcement of that right in Pakistan laws. Private International Law consists of a set of rules recognised by civilised countries as to regulate, among others, commercial transactions between the subjects of one State and those of another and its underlying principles include the principles of justice, equity and good conscience. According to those principles, any right which has been duly acquired under the law of any civilised country is recognised and, in general, enforced by English Courts, and no right which has not been duly acquired is enforced, or, in general, recognised by the English Courts (see Dicey's Conflict of Laws 6th Edition page 11). We in this country generally follow the English legal system, and Courts in Pakistan, as in England, are also Courts of Justice, equity and good conscience. Therefore, a copyright of Indian origin is recognisable and enforceable by Pakistan Courts on the above principles of Private International Law, if the same is duly acquired under the Indian law and if its recognition is not prohibited by the internal law of Pakistan." A simple reply to the argument contained in this passage is that the recognition of a copyright of Indian origin is, the words used in this passage. "prohibited by the internal law of Pakistan". Section 31 of the Copyright Act of 1911 which is still applicable to Pakistan provides: "No person shall be entitled to copyright or any similar right in any literary, dramatic, musical or artistic work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force, but nothing in this section shall be construed as abrogating any right of jurisdiction to restrain a breach of trust or confidence." In accordance with this section no person can claim a copyright unless he brings his case within the four corners of the Act. Equity, justice and good conscience cannot in the presence o this specific statutory provision be a foundation for a copyright. The plaintiff is claiming a declaration that he has rights of distribution, exhibition and exploitation in the film "Chandranath". So far as the law of Pakistan is concerned he has no such right. The fact that there are before us what the learned Judges call contending parties with rival claim to copyright cannot affect the validity of a claim based on such a copyright. Even if defendant No. 2 had made a concession on this point of law the Court could not have held in favour of the plaintiff. Defendant No. 2 had in fact made a plea in the alternative. He had contended that as a matter of fact no copyright existed and if it existed he too was a transferee in good faith and without notice. The fact that the plaintiff is a transferee of a copyright of Indian origin and is not the original holder of the copyright does no make any difference to the competence of the suit. If the original holder of the copyright could not file a suit for a declaration of his right his transferee too cannot maintain' such a suit. While we can take notice of the fact that the plaintiff has a copyright in accordance with Indian Law we cannot grant a declaration as to the existence of that right ink Pakistan. The fact, however, that copyright of Indian origin is not recognisable in this country does not end the matter. The result would only be that the agreement between the plaintiff and defendant No. 1 will relate not to any copyright but only to the dupe negative and to the right to use that negative. Defendant No. 1 had agreed to transfer to the plaintiff the copyright as well as the dupe negative. The copyright cannot pass to the plaintiff because so far as this country is concerned Defendant No. 1 never possessed any copyright but the agreement stands with respect to the dupe negative for the plaintiff is prepared to pay the whole of the agreed consideration for the dupe negative alone. The suit cannot succeed for a declaration of the rights of distribution, exhibition and exploitation in the film Chandranath, but can be decreed in respect of the dupe negative. The right to use a particular dupe negative for profit would vest in the person who is entitled to the possession of the dupe negative. The next point for consideration is whether the suit lies it the present form. The contention of defendant No. 2 is that by the agreement of 28‑6‑1958 no property actually passed to the plaintiff and that the agreement was executory in its form. So far as the rights of exploitation, etc., are concerned they may left out of consideration for we have found them to be non existent. So far as the dupe negative is concerned there is little doubt that property in it did not pass to the plaintiff by the agreement itself. The dupe negative was not yet in the possession of defendant No. 1 when the agreement was entered into. The Screen Classics had agreed to supply defendant No. 1 with one dupe negative. The dupe negative which was to be supplied was not yet ascertained, so that in words of the Sale of Goods Act the agreement was for unascertained goods and in accordance with section 18 of the said Act property could not pass till the goods were ascertained. According to section 19 when goods are ascertained property passes in accordance with the intention of the parties. Rules for inferring the intention of the parties are contained in sections 20 to

24. It is not necessary, however, to make reference to any of those rules for a simple reason. Under the circumstances of this case we would presume that defendant No. 1 did not intend transferring title till the whole of the consideration was paid. According to the original agreement out of a total consideration of Rs. 57,501, Rs. 7,501 were paid at the time of the execution of the agreement, Rs. 20,000 were to be paid for opening the letter of credit and Rs. 30,000 were to be paid against delivery of the dupe negative. In the absence of some circumstance indicating a different intention it can be presumed that the vendor intends title to be transferred when he receives the consideration. Rs. 30,000 was more than half the consideration and it was to be paid on delivery of the negative. Later plaintiff agreed to pay Rs. 17,500 more against delivery of the negative. The basic rule is that title passes according to intention of parties. We do not think the intention was to pass title at the time of the execution of the deed when only a small part of the consideration was paid, or at an time before delivery of the dupe negative. But this finding does not advance the case of defendant No.

2. The only effect of this finding would be that the plaintiff would have to sue for specific performance and there is no difficulty in holding this suit to be one for specific performance. In a suit for specific performance the plaintiff would have to ask for possession of the dupe negative on payment of the balance of consideration. This is the relief which the plaintiff has substantially prayed for though he has put it in the form of a mandatory injunction to deliver possession. The trial Court found that the mandatory injunction amounted. to a prayer for possession of the dupe negative and it directed the plaintiff to pay full Court‑fee, on the amount of consideration, which would have to be paid in a suit for possession. The plaintiff has paid that Court‑fee. A contention has been put forward by learned counsel for defendant No. 2 that defendant No. 2 has been prejudice by the form of the suit because in a suit for specific performance the Court has a discretion to refuse relief and to grant damages instead of specific performance, and had the suit b; en in the proper form defendant No 1 could have taken equitable defences which may have persuaded the Court to exercise its discretion against the plaintiff. The contention is without force. The suit was one for injunction and the Court had a similar discretion in such a suit to refuse relief. Any equitable ground of refusal of relief which would have been open to the defendant for resisting a suit for specific performance would also be open to him in a suit for injunction. In fact defendant No. 2 had pleaded in his written statement that in the guise of a suit for injunction the plaintiff had filed a suit for specific performance. The learned Judges of the High Court came to the conclusion that the present suit was one where it was necessary to grant possession of the dupe negative because there was no criterion for assessing damages. It appears clear that it would not be possible to assess the damages resulting from the failure of defendant No. 1 to perform his contract. There is no satisfactory method by which the profits which will be realized may be ascertained. The last point to be considered is whether the agreement dated the 28th June 1.958, amounts to transfer of a licence and is, therefore, illegal. Before the High Court for the contention that if it was a transfer it would be illegal, reliance had been placed on Martial Law Regulation No. 41 and the Registration (Importers & Exporters) Order, 1952. The Martial Law Regula tion No. 41 which made the transfer of a licence an offence had come into force on 30‑10‑1958 and, therefore, as pointed out by the H High Court, could not make an agreement of 28‑6‑1958 an offence. Before us reliance was placed not on Martial Law Regulation No. 41, but on section 5 of the Imports & Exports (Control) Act ; on a condition in the import licence of defendant No. 1 prohibiting transfer without permission of the Chief Controller of Imports & Exports ; and on the Registration (Importers & Exporters) Order, 1952. Section 5 of the Imports & Exports (Control) Act, 1950, is in the following words :‑ "

5. If any person contravenes any order made or deemed to have been made under this Act or the rules made thereunder, or makes use of an import or export licence otherwise than in accordance with any condition in that behalf imposed under this Act, he shall without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Sea Customs Act, 1878, as applied by subsection (3) of section 3 of this Act be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. In the licence issued in favour of defendant No. 1 there is a condition to the effect that it shall not be transferred without the permission of the Chief Controller of Imports & Exports. In accordance with section 5 the use of a licence in violation of the condition under which it is granted is an offence and the conten tion is that by the transfer of his licence by defendant No. 1 an offence has been committed. 1n any case, it is urged, the condition in the licence prohibiting transfer without permission is valid and prevents transfer of the licence. So far as the Registration (Importers & Exporters) Order, 1952, is concerned it does not appear to have any direct bearing on the matter in dispute. It does not make any provision prohibiting transfer of an import licence. According to section 3 of this Order no importer or exporter who has not been granted "registration" can import or export any goods. In case a licence is transferred to a person who is not a registered importer and exporter, this section may have an indirect effect preventing the transferee from importing goods in spite of the transfer which may otherwise be valid. But there was no plea that the plaintiff was not a registered importer and in fact the record indicates that the plaintiff is such an importer because to the plaintiff also a licence had been sanctioned on the 13th June 1958 for the import of a Bengali film. The contention, therefore, as to the illegality of the agreement of 28th June 1958, is really based only on the condition in the licence prohibiting transfer without permission and section 5 of the Imports & Exports (Control) Act. Before proceeding to discuss the point it will be proper to state that the appellant himself does not appear to have regarded this point as of any substance and there is an implied abandonment by him of this plea in the Supreme Court though he took it in the High Court. This plea find, no place in the ten grounds contained in the petition for special leave. Out of these grounds No. 9 refers to "several complicated questions of law" which questions are all detailed in this ground, but there is no reference to any transfer of a licence. Long after the civil petition for leave was filed six additional grounds covering two and a half pages were submitted and in these additional grounds too there is no mention at all of this plea. The concise statement of the appellant was filed only one day before the actual hearing of the appeal by this Court and in the concise statement too which enumerates as many as twenty‑eight grounds, this plea finds no place. Considering that the case of the appellant was being conducted by distinguished counsel from Karachi and Lahore and the appellant was represented by the leading attorney of this Court, the omission is not without significance. However, at the end of his address learned counsel for the appellant argued this point too and no objection having been taken to its being argued by the plaintiff‑respondent, the point has to be dealt with even though the discussion, once it starts, cannot be brief. The agreement of 28th June, 1958, runs as follows "Deed of Agreement between Messrs Eastern Film Agency,

9. Heemendra Das Road, Dacca, and Messrs Star Film Distri butors, 78/3, Lyall Street, Dacca, dated the 28th June 1958. Articles of agreement made and entered into at Dacca this twenty‑eighth day of June one thousand nine hundred fifty‑eight between Messrs Eastern Film Agency, a sole‑proprietorship firm owned by Mohammad Ali Khan having its office at 9, Heemendra Das Road, Dacca, hereinafter called the Vendors which expression unless repugnant to the context shall deem and include his heirs, executors, administrators, assignees and successors‑in‑office of the one Part and Messrs Star Film Distributors, a registered Partnership firm carrying on business as Film Distributors; having its office at 78/3, Lyall Street, Dacca, hereinafter called purchasers which expression unless repugnant to the context shall deem and include the partners of the said firm for the time being or their survivors, heirs, executors, administrators and assignees of the other Part. Whereas the vendors have represented to the purchasers that the vendors have been sanctioned an Import Licence by the Government of Pakistan according to intimation received by and in possession of the vendors from the Chief Controller of Imports & Exports, Karachi, for import into East Pakistan an Indian Bengali film at a price not exceeding Rs. 20,

000. That the vendors have duly deposited the fee as per requirement of intimation and forwarded Treasury Receipt to Chief Controller of Imports & Exports, Karachi. And whereas the vendors have further represented that they shall keep the purchasers duly informed about the receipt of licence or any other communication from Government in that regard and shall duly and promptly comply with any and all formalities in connection therewith. And whereas the vendors have also represented to the purchasers their firm and irrevocable decision to import the film Chandranath produced by Messrs Screen Classics, Calcutta, on the strength of said licence. And whereas the purchasers in good faith believing in and relying on these representations as honest and truthful and on the basis of undertakings hereinbefore and hereinafter given have agreed to entered into the agreement hereinafter contained. And whereas the vendors have already entered into an agreement dated 27th June 1958, with Messrs Screen Classics, Calcutta for the purchase from the said Messrs Screen Classics sole and exclusive distribution, exhibition and exploitation rights of the picture Chandranath in Bengali for Rs. 20,000 (Pak.) being the full value of the licence and agreed price includes cost and consequent free supply of one brand new perfect dupe negative print of the said film. A duplicate copy of the said agreement which has been made available by the vendors is attached to this agreement and made and annexure hereof and shall where so deemed fit and necessary, form part and parcel of same. And whereas the vendors are desirous of disposing of the sole and exclusive distribution, exhibition and exploitation rights of the picture Chandranath and whereas the purchasers have approached the vendors to purchase the same and where upon the following terms and conditions have been agreed and accepted by and between the parties. Now this agreement witnesseth :‑ (1) That vendors hereby do transfer unto and purchasers hereby do accept transfer of the exclusive distribution and exploitation rights of the film "Chandranath" to be imported under the Licence along with the dupe negative print and inclusive of the permission of duplication for the territory of East Pakistan for a consideration of Rupees Fifty Seven thousand five hundred and one (Rs. 57,501) payable in the manner hereinafter written and the amount of Customs Duty and Sales Tax actually required to be paid on the print of the said film for the purpose of clearance of the prints from the Customs. (2) That in lieu of the payment of the aforesaid consideration by the purchasers, the vendors hereby do assign and transfer in toto all rights, title and interest derived and to be derived by the vendors by virtue of the agreement between the vendors and Messrs Screen Classics, Calcutta and utilisation of the Import Licence sanctioned by the Government to the vendors unto the purchasers. (3) That subject to due and faithful performance of represen tations made and fulfilment of the undertaking given by the vendors it has been agreed by and between the parties hereto that the consideration money as aforesaid shall be paid by the purchasers in the manner specified hereunder :‑ Rs.7,501 On signing of these presents by Cheque No. ‑‑‑‑‑‑ on Lloyds Bank Ltd., Dacca, receipt of which vendors hereby admit and acknowledge. Rs. 20,000 To be paid to Bankers for opening Letter of Credit in favour of Seller of the film in terms of these presents. Rs. 30,000 To be paid to the vendors against satis factory delivery of print, and other articles, if any, accompanied by original Import Application, Treasury Challans and such other papers and or certificates required by the purchasers in terms of Clause No. 8 of these presents. The amount equivalent to Customs Duty and Sales Tax charges payable to the authorities as per Clause No. 6. (4) That the vendors undertake not to make any attempt whatsoever to utilise the Import Licence for import of any film other than Chandranath in Bengali except at the instance of purchasers as hereinafter provided. (5) That the vendors undertake to duly and faithfully abide by all terms and conditions of agreement with Messrs S6reetl Classics, Calcutta. In the event however of any difficulty or hitch arising in due fulfilment of the said agreement on the part of Messrs Screen Classics, Calcutta, the purchasers may at their absolute discre tion direct the vendors to agree to its cancellation and the vendors undertake to do so without reserving any claim of any kind whatsoever on the said Messrs Screen Classics or on the picture Chandranath. In such event the purchasers shall arrange to procure another picture of purchasers own choice from the producers or persons having control over the same and the vendors must sign all necessary documents and agree ments for the purpose without delay. Such documents and agreements will be drafted and approved and the purchase price confirmed by the purchasers and vendors shall have no option to change the terms and conditions in any wise unless they are repugnant to the terms and conditions stated in this agreement. (6) That as soon as the vendors are in possession of a valid and regular licence vendors shall advise and instruct the purchasers to deposit a sum of Rs. 20,000 (Rupees twenty thousand only) with a scheduled Bank at Dacca with whom vendors have a Banking account with the specific purpose of opening an irrevocable Letter of Credit in favour of Messrs Screen Classics, Calcutta. The vendors shall not utilise this sum of Rs. 20,000 (Rupees twenty thousand only) for any purpose other than that of opening Letter of Credit in favour of Messrs Screen Classics, Calcutta. (7) That the vendors shall upon receipt of documents from India through the Bankers intimate accordingly to the purchasers and forthwith proceed to have the Customs Duty and Sales Tax assessed and intimate the amount required for the purpose to the purchaser's forwarding with such intimation relative Treasury Challans and advising and instructing the purchasers to deposit the amount through the vendors. That under no circumstances whatsoever vendors shall either delay procurement of documents from Bank or completion of Customs formalities or clearance of prints from Customs and consequent satisfactory delivery of same to purchasers in terms of Clause No. 8 immediately following. (8) That the vendors shall intimate to the purchasers as soon as the print of the film is cleared from Customs and advise and require them to take satisfactory delivery of the same within fifteen days from the receipt of such intimation upon payment of Rupees thirty thousand (Rs. 30,000) only being balance and final payment required to be made by the purchasers to the vendors under the terms of this agreement. That the vendors shall arrange to effect such satisfactory delivery in the manner indicated in payment clause at the place of business of purchasers as soon as purchasers intimate their readiness to receive such delivery. (9) That even after the satisfactory delivery by the vendors to the purchasers is effected, the vendors' duties and obligations to the purchasers shall not cease and vendors agree and under take to co‑operate with the purchasers, at all times and in all cases if as and when any letter or other help or agency of the vendors' name is required to be used by the purchasers for all proper and bona fide purposes in due exercise of or in connec tion with the rights assigned to the purchasers by the vendors or incidental thereto and without affecting the generality of the clause the vendors shall more particularly do or cause to be done the following :‑ (a) To apply to the East Pakistan Board of Censors for passing the said film for public exhibition in East Pakistan. (b) To present to the members of the Censor Board the said film for censoring in co‑operation with the purchasers. (c) To receive from the said Board Original and Duplicate Censor Certificates of the film and pass on the same to the purchasers. (d) To apply to the Controller of Imports and Exports, Chittagong, for export of the said film to West Pakistan and to receive and hand over the permit to the Purchasers and render every assistance in exporting the prints to Karachi or Lahore as required by the purchasers and in favour of the purchasers nominee. (e) To apply to the Chief Controller of Imports and Exports, Karachi, from time to time as required by the purchasers for permits to bring to East Pakistan duplicate prints of the said film and to receive and hand over the same to the purchasers. This arrangement shall remain in force till such time as purchasers find themselves in a position to obtain permits for re‑prints in their own name. (f) To take delivery from the Customs and Airline Companies original and duplicate prints of the film in their own name and hand over the same to the purchasers. This arrangement shall remain effective till the arrangement vide sub-clause (e) above remains in force. Be it however clarified that while in all such matters vendors shall be guided and instructed by the purchasers and shall act and perform strictly accordingly, the purchasers shall be required to defray the legitimate expenses thereof or incidental thereto and shall readily do so upon intimation from the vendors. (10) That in the event of vendors refusing to or failing to make timely and prompt performance of any of the obligations and undertakings given in these presents and without affecting the generality of this clause more particularly such undertakings as to take prompt delivery of papers from Bank, and under going of Customs formalities as well as the undertakings mentioned in Clause No. 9 of these presents relating to post delivery period, the purchasers shall be within their lawful rights to consider themselves as lawful attorneys of vendors to discharge, perform and carry out all such acts, duties and obligations for and on behalf of the vendors and in their name as effectively as the vendors could themselves do and for such eventuality vendors hereby do, create, appoint, constitute and nominate irrevocably and total disregard of their subsequent protests or objections, if any, Mr. Iftekharul Alam son of late Dr. Badrul Alam, a partner of the purchasers' firm as their lawful Attorney for the purpose of carrying out and discharging any or all of such obligations and undertakings and hereby do agree and bind themselves always to ratify and accept all acts and deeds committed or done by their said Attorney in pursuance of the authority conveyed and granted under this clause and treat all such acts and deeds as if the same were the acts and deeds of vendors themselves. Nothing contained in this clause shall however prejudice or diminish the rights or liberties of the purchasers to act in all such matters in their own name as the lawful purchasers, where they so deem fit, possible, convenient or expedient. (11) That the purchasers hereby declare, undertake and bind themselves to act as under (i) To deposit the sum of Rs. 20,000 forthwith with the Bankers upon intimation from the vendors in terms of Clause 6 of these presents. (ii) To pay to the vendors or the authorities concerned the amount of Sales Tax and Customs Duty forthwith upon intimation by the vendors in terms of Clause 8 of these presents. (iii) Generally to co‑operate with the vendors in all manners and at all appropriate times in connection with the import, clearance, censoring etc. of the film. (12) That the vendors and the purchasers do hereby agree and declare that the agreement is firm and Irrevocable from both sides and nothing whatsoever shall entitle either party to cancel, determine or invalidate the same. That the timely payment on the part of the purchasers an specific performance on the part of both the parties in terms of these presents shall form the essence of this agreement. (14) In the event of either party attempting to make breach of any negative covenant of this agreement contained herein before or refusing to make specific performance of the terms of same, the other party shall be entitled to seek from a competent Court of Law an injunction order and or sue for specific performance without any prior notice and shall be entitled to forthwith receive such order or specific relief ex parse and or without any hitch or objection from the other party on any ground whatsoever and the other party shall be liable to bear the expenses of such litigations on the basis of clients and attorneys. (15) That if all or any of the representations of the vendors contained in these presents turn out to be false or dishonest they will be liable to appropriate actions for such inducements made to the purchasers in Court of competent jurisdiction. (16) That the Agreement shall in all respects and at all material times be subject to jurisdiction of proper Court with appropriate jurisdiction in the town of Dacca. That in witness whereof both the parties have put hereunder their respective hands and seals the day, month and year mentioned hereinbefore," The first matter to be noticed as painted out by the High Court is that on the 28th June 1958, when this agreement was entered into no licence existed. The appellant is relying on the condition in the licence prohibiting transfer without permission and on section 5 of the Importers & Exporters (Control) Act according to which the use of a licence in contravention of any condition of a licence is an offence. Now, section 5 is attracted only if a licence is used by a person otherwise than in accordance with its conditions. In this case it cannot be contended at all that the licence had been used in contravention of any condition. The licence was actually granted on 26‑5‑1960 and it was used by the holder of the licence himself. On 28‑6‑1958 there was no licence in existence. In fact on that date the conditions to which the licence would be subject were not known. Even an actual transfer of an existing licence may not be said to be a use of the licence, but it is not necessary to decide that matter finally. It is quite sufficient to say that there was no use of the licence in con travention of any of its conditions. Although section 5 of the Imports & Exports (Control) Ac is not attracted, it cannot be denied that if the agreement amounts to a transfer of the licence it is illegal for no objection has been taken to the validity of the condition in the import licence pro hibiting transfer without permission. In fact learned counsel for the plaintiff respondent does not contend that if the impeached agreement amounted to a transfer it would be legal. It has to be repeated when we commence a discussion of the question whether the agreement is a transfer of a licence that the agreement was entered into long before a licence was granted and even before the conditions which were to be attached to it were known. No question therefore of the transfer of a licence arises, but truly speaking this circumstance does not affect the legal position, for, if this agreement would have been invalid if the licence existed at the time it was entered into, then to give effect to it after the licence had been procured would be to defeat the provisions of a law and the agreement would be void on grounds of public policy under section 23 of the Contract Act. So the question for decision still remains substantially the same that is whether to given effect to the agreement will amount to a transfer of a licence. The agreement in dispute is a genuine business transaction between two persons who deal with distribution and exploitation of films. It is not the case of defendant No. 2 that in fact there was a transfer of a licence and that the transfer was fraudulently put in the form of. 'an agreement to sell a film. If a genuine business transaction is sought to be invalidated it is on the party, putting forward the contention to establish it. One matter may be clarified here. It is only to the option clause of this agreement that the objection as to transfer of a licence can relate. The first part of the agreement could not possibly be attacked as a transfer of a licence. Defendant No. 1 had on his own entered into an agreement to acquire Chandranath and he agreed to sell it to the plaintiff: There is no room for an objection with respect to this part of the agreement. At the same time it could not be urged that the existence of the option clause would render the whole agreement illegal. The option clause was to come into operation if the contract relating to Chandranath failed. If two persons enter into a perfectly legal agreement ands at the same time provide that if this agreement fails then another agreement which the law does not permit will come into existence; the legal agreement does not become illegal because of such a provision. The illegal clause, which is in fact an agreement in the alternative, will remain void and ineffective. That is all. The objection under discussion is therefore to be considered on the assumption that the plaintiff is laying claim to Chandranath under the option clause. Later in this judgment there is a full discussion as to whether the plaintiff is entitled' to Chandranath under the first part of the agreement and the finding on that point being in favour of plaintiff the objection as to transfer of a licence should not really arise. We will assume, however, for the present that the plaintiff is relying on the option clause. What would be the criterion for determining whether an agree ment effects a transfer of a licence ? The criterion would be whether in accordance with the terms of the agreement the person in whose favour the agreement was executed would become the true importer or whether the holder of a licence remained the importer. If by the agreement the person in whose favour it was executed became the importer there is a transfer of a licence, but if the holder of the licence continued to be the importer, then whatever the kind of contract which he enters into with respect to the goods which he imports, there is no transfer of a licence. There will be an agreement to sell a licence if the holder of a licence on receipt of a sum of money is given protection against any liability connected with the import. In such a case after an agreement is executed the holder of the licence washes his hand of the affairs. He is concerned only with the price he receives for the sales of his licence and he is assured that any further liability which may arise on account of the fact that his name has still to be used for the purpose of import will be discharged by the transferee of the licence. It is the transferee who in such a case purchases the goods and who imports them though he may do so in the name of the holder of the licence. To proceed now to consider the terms of the agreement in dispute it will be observed that the agreement confers on the plaintiff the following rights :‑ (i) the right to purchase the particular film for the acquisition of which the defendant No. I had already entered into the agreement ; (ii) in case of the non‑availability of that particular film an option to name another film which defendant No. I would be bound to import; and (iii) in case defendant No. 1 failed to perform his obligations under the agreement a power‑of‑attorney to act on his behalf. The question is whether the grant of any of these rights amounts to a transfer of a licence or to put the same proposition in a different form whether the grant of any of these rights is inconsistent with the condition in the licence that it shall not be transferred. The first of these rights is hardly one the grant of which may be a basis for holding that a licence has been transferred. The importer having chosen the goods which he wants to import there can be no objection to his entering into an agreement to sell the same. The grant of the second right too will not support any argument that the licence had been transferred. If the importer is granted a licence for the import of, for example, radios and if a customer tells him that he is prepared to pay a handsome profit if he will import the radio of his choice, there is no reason why the importer should not be allowed to enter into such a contract. There will be one class of cases where the customer names the brand which be wants to be imported before the contract is entered into. If there be no objection in such a case there should also be no objection if the customer does not specify the brand which he wants to import before the agreement, but makes a provision in the agreement that he will specify it later. The inten tion of the law could not in the absence of an indication to that effect be to prevent a bona fide businessman from entering into a transaction for earning profit to the extent otherwise permissible if the transaction be one which really relates to his own goods and is not a colourable transaction relating to goods to be imported by another. A film importer has after the import of a film to transfer exhibition rights in the film to some other person for profit. He will naturally try to get maximum profit out of it. If the importers were to be prevented from importing goods according to the choice of a customer and were forced to act independently in this matter, the result may be that he suffers loss in the import of goods whereas he had been offered a handsome profit: In fact whenever a person imports goods he takes into consideration the choice of those who are to be his customers. If the grant of the first two rights does not amount to the transfer of a licence will it make any difference if the purchaser is at the same time granted a power‑of‑attorney to receive the film from the Customs Authorities and to perform other connected acts on behalf of the vendor ? This power‑of‑attorney is only a method of giving delivery of the film. As the wording of the relevant clause shows it is only on failure of defendant No. I to perform his obligations that the clause comes into force. If defendant No. 1 acted in accordance with law as he is bound to do this clause would never come into operation. The purchaser having already paid a large portion of consideration wanted to have an assurance that the vendor will give him delivery of the goods which he is purchasing. In the absence of such a power‑of‑attorney the plaintiff was afraid he would lose the money which he had already paid to defendant No. 1 and the conduct of defendant No. I with reference to the transaction in dispute discloses very reasonable grounds for the distrust of the plaintiff: The clause is really a mode of enforce ment of the agreement already entered into. A clause which merely provides for a mode of enforcement of an agreement cannot be regarded as a variation of the agreement itself. If the agreement without that clause was valid the existence of such a clause would not invalidate it. It is like a guarantee clause, and only creates better opportunities for the promisee to get what he was entitled to get under the contract. Without this clause too it was the duty of the defendant No. 1 to hand over the film to the plaintiff when he got it from the Customs Authorities and Instead of handing it over he made a provision that the plaintiff may receive it from the Customs Authorities on his behalf. This was a precaution taken by the vendee which reduced the chances of breach of contract by the vendor. The law should favour a clause that stands in the way of dishonest dealing. We have already stated that the true criterion is whether the transferee became the importer. The power‑of‑attorney rather shows that the importer was defendant No.

1. In addition to what has been stated above there are a number of considerations which would show that it was defendant No. 1 who was to be the importer of goods. The first and foremost of these is the contention put forward by the appellant and accepted by us that property in the dupe negative has not passed to the plaintiff. It was defendant No. 1 who purchased the dupe nega tive, it is he who was the owner when it was imported into this country, and in fact he is still its owner though the ownership is burdened with an agreement still. This contention of defendant No. 2 is in fact inconsistent with the plea that there has been a transfer of a licence. If in accordance with the intention of the agreement between the parties it was defendant No. 1 who was to purchase the goods which were imported and to own them and the plaintiff has in his favour just an agreement that the goods be transferred to him which agreement can only be enforced by a suit for specific performance, there is hardly any basis for the contention that the plaintiff had become the importer. No person can become an importer by the simple circumstance that the importer has entered into an agreement to sell the goods to him. Suppose the film was destroyed in transit and never reached Pakistan, who would suffer ? There can be little doubt that the plaintiff would be entitled to a refund of all the money that he paid to defendant No. 1 for there was only an agreement to sell the dupe negative and defendant No. 1 not being able to perform his contract would have to refund the consideration already received. That person is the importer who loses if the goods imported are destroyed, not the one who is wholly unaffected. We are dealing with the case of a film, but let us in the place of a film substitute in this agreement some other goods for instance an air‑conditioner which is available in the market. If in contravention of the terms of the agreement defendant No. 1 refused to deliver the air‑conditioner and the plaintiff filed a suit for specific performance the suit will fail for the price of the air‑conditioner is well known and damages would be adequate relief so that even if full effect is given to the law the goods will remain with defendant No. 1 and the plaintiff would be entitled only to a sum of money. It is defendant No. 1 who is liable to his own vendors, i.e. the Screen Classics not only for the price of Chandranath, but also for damages in respect of any exploitation of the film outside East Pakistan, there being a clause in the agreement of 27‑6‑1958 to that effect. It will be observed that the agreement of 28‑6‑1958 although it transferred the rights acquired by defendant No. (in the agreement of 27‑6‑1958, did not transfer to the plaintiff any liability arising there from nor did it give any protection against that liability. We would, therefore, hold that even if Chandranath had been acquired by virtue of the option clause there could be no objection to the agreement on the ground that it amounted to transfer of an import licence but the correct position is that to Chandranath the plaintiff was entitled under the first part of the agreement. The first point which deserves attention in this connection is that defendant No. 1 had agreed to sell the picture Chandranath to the plaintiff and had not merely transferred to the plaintiff the benefits of the contract which he had entered into with Screen Classics. It will be observed that the agreement of 28‑6‑1958 begins by saying (after some statements about the import licence) "and whereas the vendors have also represented to the purchasers their firm and irrevocable decision to import the film Chandranath produced by M/s. Screen Classics on the strength of said licence". The decision is to import Chandranath which is produced by M/s. Screen Classics and not to purchase the film from Screen Classics. There is no qualification about this "irrevocable decision" that it would fail if the film had to be acquired other wise than from the Screen Classics. The agreement then recites that for the acquisition of Chandranath the vendor had already entered into an agreement with the Screen Classics and after this come the following two important clauses :‑ (1) That vendors hereby do transfer unto and purchasers hereby do accept transfer of the exclusive distribution and exploitation rights of the film Chandranath to be imported under the licence along with the dupe negative print and inclusive of the permission of duplication for the territory of East Pakistan for a consideration of rupees fifty‑seven thousand five hundred and one (Rs. 57,501) payable in the manner hereinafter written and the amount of Customs Duty and Sales Tax actually required to be paid on the print of the said film for the purpose of clearance of the prints from the Customs. (2) That in lieu of the payment of the aforesaid consideration by the purchasers, the vendors hereby do assign and transfer in toto all rights, title and interest derived and to be derived by the vendors by virtue of the agreement between the vendors and Messrs Screen Classics, Calcutta, and utilisation of the Import Licence sanctioned by the Government to the vendors unto the purchasers. By the first clause the `vendors' transferred the distribution rights as well as the dupe negative. In a separate clause, that is, clause (2) the benefits of the agreement too were transferred. In the first clause the vendors, without any limitation or qualification transferred the exhibition rights and the negative and they were therefore bound to deliver the dupe negative to the plaintiff what ever the source from which they acquired it. That is the ordinary incident of an unqualified agreement for sale. When a person agrees to transfer a particular property to another he is bound to transfer that property whatever the way in which he becomes owner of it unless there be a provision to the contrary in the agreement for sale. The right of the plaintiff to purchase Chandranath becomes established by the first clause and unless there be something in the agreement to the contrary this right will continue to exist. There is nothing in the agreement that will take away this right of the vendee. The fact that at the same time benefits of the contract of 27‑6‑1958 have been transferred does not in any way detract from the force of the first clause. The only relevant clause in the agreement on which some argument might be based by defendant No. 2 is the clause which provides that in case there is a difficulty or hitch arising in the due fulfilment of the agreement of 27‑6‑1958 the purchasers may have a film of their own choice. A study of this clause will show that it is only for the benefit of the purchasers. The purchasers have a right to direct the vendors to agree to a cancellation of the agreement of 27‑6‑1958 and then the purchasers have the option to name another film, but the purchasers have as the clause says an "absolute discretion" in the matter and they are not bound to avail of this clause. The clause only gives an addi tional benefit to the purchasers and cannot be construed as taking away the rights that the purchasers may possess under the clause which contains an unqualified agreement to sell Chandranath. There is another point which merits consideration in respect of the effect of that clause. The clause is not in the form of an agreement to sell but in the form of out and out transfer of the exhibition rights as well as the dupe negative. It says "vendors hereby do transfer". It is true that at that date as yet the vendors were not owners of what they were transferring, but this clause has the same effect as the sale of property to which the vendor at the time of sale does not have a title. In the case of such a sale two consequences follow. The first is that it implies an agreement to sell which has not yet been legally performed and therefore has to be performed. The second is that the principle of feeding the estoppel contained in section 43 of the Transfer of Property Act becomes applicable. A transfer by a person of property which he represents he is entitled to transfer, but in which his title is doubtful or lacking will operate on any interest which he may acquire subsequent to the transfer in that property so that the transferee becomes the owner of that interest. If defendant No. I sold Chandranath and if he possessed no title or a defective title in Chandranath at the time of transfer then any title which he acquires afterwards in Chandranath will pass to the vendee. As we have found that copyright of Indian origin cannot be recognized in this country the plaintiff is not entitled to a declara tion with respect to the rights of exhibition etc. in the film Chandranath. But he is entitled to the dupe negative and to all the benefits that may arise from the use of the dupe negative, including the right to make positives out of it and exhibit then, In spite of the legal difficulty, therefore, the plaintiff practically gets all the relief he prayed for. The decree for a declaration as to rights of exhibition etc. is set aside, but the decree granting possession of the dupe negative is maintained. Substantially the appeal stands dismissed. The appellant shall bear the costs of the plaintiff‑respondent. The ultimate responsibility for costs will however fall on the Eastern Film Agency, defendant No. 1, whose conduct in this case deserves to be condemned and who is mainly responsible for this litigation. Defendant No. 2 if he pays costs to the plaintiff‑respondent shall be entitled to recover them from defendant No. I and the plaintiff will also be entitled to recover costs from defendant Tao.

1. This applies to costs in all Courts. HAMOODUR RAHMAN, J.

‑I have had the advantage of perusing in advance the judgment proposed to be delivered in these appeals by my learned brother Kaikaus, J., but I am unable to agree with him that the first‑named respondent herein is entitled to a decree for the possession of the dupe negative of the film Chandranath, even though it is not entitled to the declaration that the right of exploitation and exhibition of the said film stands transferred to it. To arrive at the above conclusion my learned brother has also recorded the following findings :‑ (1) that the respondent Muhammad Ali Khan acquired in the name of his firm, Messrs Eastern Film Agency, the exploitation rights of the film Chandranath and its dupe negative in pursuance of the agreement entered into between him and the Screen Classics on the 27th of June 1958, (2) that the tripartite agreement of the 24th of August 1960, between Narayan Pictures and Screen Classics on the one hand and the respondent Muhammad Ali Khan on the other was not an independent agreement but an agreement by which Screen Classics was only performing its obligations under the contract of the 27th of June 1958, (3) that the agreement entered into on the 28th of June 1958, between the respondent Muhammad Ali Khan and the respon dent Star Film Distributors was, in substance, an agreement not only for the transfer of the exploitation rights but also an agreement for the sale of the dupe negative of the film Chandranath, (4) that so far as the exploitation rights were concerned they did not create in favour of Star Film Distributors any legal rights in respect of which it could get a declaration from a Court of law in Pakistan, (5) that the said agreement of the 28th of June 1958, did not also vest the Star Film Distributors with any title in the dupe negative, (6) that Star Firm Distributors could, therefor, only seek specific performance of the agreement of the 28th of June 1958, as an agreement to sell the dupe negative, (7) that the suit of the respondent Star Film Distributors vas substantially a suit for the specific performance of the agreement to sell the dupe negative of the film Chandranath, and (8) that the appellant had knowledge of the agreement of the 28th of June 1958, and therefore, he could not claim to have entered into the agreements of the 26th of August 1959, and the 26th of February 1960, either in good faith or without any knowledge of the agreement of the 28th of June 1958. Whilst I am in agreement with the findings Nos. 4, 5 and 6 above, I regret my inability to concur with him in any of the rest of the above findings for the reasons which I shall presently indicate. I do not propose to re‑state the facts of the case, which have been very elaborately set out by my learned brother, but I shall refer only to such of them as may be necessary for the appreciation of the reasons given by me. So far as the first two questions are concerned ; namely, (1) as to whether the dupe negative of Chandranath was acquired under the original contract of the 27th of June 1958, between Screen Classics and the respondent No. 2 and (2) whether the respondent No. 2 acquired the dupe negative in pursuance of the original agreement of the 27th of June 1958; the evidence, as I read it, discloses that even on the date of this agreement there were disputes pending in the Calcutta High Court between Screen Classics, the producers of the film Chandranath, and one Narayan Pictures (Private) Limited, who claimed to have acquired the sole world distribution rights in respect of the said film for a period of 20 years. Screen Classics had, according to the Manager of the Screen Classics, examined in the case as P. W. 7, actually filed a suit for confirming their cancellation of the dis tribution rights of the Narayan Pictures. Narayan Pictures had, in their turn, retaliated by filing a counter‑suit on the 15th of December 1958, against Screen Classics for damages and other reliefs, on account of the alleged wrongful cancellation of their world distribution rights. It was in this state of affairs that, when Muhammad Ali Khan ultimately obtained his import licence in May 1960, he went to Calcutta in the first week of June 1960, and there contacted Mr. Sher Ali, a partner of Star Film Distributors. It is the evidence of Mr. Sher Ali himself (P. W. 8) that thereafter when be contacted Messrs Screen Classics they told him. that as litigations were going on between themselves and Narayan Pictures, they could not export the picture Chandranath. It was then only that Sher Ali took upon himself to mediate between Screen Classics and Narayan Pictures and to bring about the compromise which is evidenced by Exh. 16, the petition filed in the Calcutta High Court, for permission to give sub‑distribution rights in respect of the territory of East Pakistan for a period of only ten years to the Eastern Film Agency, the firm of the said respondent Muhammad Ali Khan. It was as a result of this mediation that the tripartite agreement was ultimately signed with the permission of the Calcutta High Court. It will be observed that neither in the petition (Exh. 16) nor in the tripartite agreement (Exh. 1) is there any reference at all to the fact that Messrs Screen Classics had already entered into an agreement for granting the exclusive distribution, exhibition and exploitation rights in East Pakistan in respect of the said film to the respondent Muhammad Ali Khan. On the other hand, the petition (Exh. 16) clearly recites that Messrs Narayan Pictures and Messrs Screen Classics had received an offer from Messrs Eastern Film Agency to take sub‑distribution rights in respect of the territory of East Pakistan for a period of ten years and for the consideration of the sum of Rs. 20,000, and then goes on to propose that, without prejudice to the rights and contentions of the parties regarding the disputes in the suits pending between them at Calcutta, Messrs Narayan Pictures as Distributor and Messrs Screen Classics as confirming party should accept the offer. The draft of the agreement proposed to be entered into, which was annexed to the petition, is also to the same effect. It will be further noticed that under this draft it was the distributors, namely, Messrs Narayan Pictures (Private) Limited which agreed to grant the sub‑distribution rights to Eastern Film Agency and Messrs Screen Classics merely joined as confirming party to the said agreement. Furthermore, although the original agreement between Messrs Screen Classics and Eastern Film Agency of the 27th of June 1958, was for the grant of the exclusive distribution, exhibition and exploitation rights of the film for a period of 12 years beginning from the date of the execution of the document and expiring on the 30th of June 1970, the second agreement was for a period of ten years from the date of its execution, namely, the 24th of August 1960. Under the original agreement Messrs Screen Classics were to deliver the dupe negative to Eastern Film Agency but under the tripartite agreement Messrs Screen Classics were to deliver the dupe negative to Messrs Narayan Pictures who, in their turn, would export it to Messrs Eastern Film Agency in East Pakistan, after obtaining the requisite permission of the Reserve Bank of India. Again, under the tripartite agreement the producers Messrs Screen Classics were only to be paid the actual cost of making the dupe negative and the balance of the consideration for the grant of the sub‑distribution rights was to remain deposited in a joint account to be opened by Messrs Narayan Pictures and Screen Classics. Whilst the original agreement provided that Messrs Eastern Film Agency shall open an irrevocable Letter of Credit within 4 months from the date of the execution of the said agreement, namely, the 27th of June 1958, the tripartite agreement provided that the sub‑distributors were to complete the transaction, including the payment of royalty, within two months from the date of the execution of the agreement. The first agreement contained an arbitration clause but the tripartite agreement contained no such arbitration clause. My examination of these two agreements and the evidence of Mr. Sher Ali (P. W. 8) and Mr. Dutta (P. W. 7), the Manager of Screen Classics, leads me to the conclusion that, upon Messrs Screen Classics informing Mr. Sher Ali that they were in no position to honour the commitment undertaken under the agreement of the 27th of June 1958, due to the impossibility of performance created by reason of the litigations pending between them and Narayan Pictures, Mr. Sher All through his efforts brought about a compromise and a fresh agreement in the shape of the tripartite agreement, which was between different parties and created different rights and obligations. It may also be mentioned here that in these litigations a Receiver had actually been appointed by the Calcutta High Court on the 24th May 1960, to undertake the exploitation of the said film and, therefore, Screen Classics were not in a position to deal with the said film. It could, in my humble opinion, hardly be treated as an agreement executed in performance of the original contract of Messrs Screen Classics. At best, it brought about a novation of the original contract and rendered it unenforceable. It is an essential element of novation, when new contracting parties are substituted, that the rights and obligations of original contractors shall be extinguished and the rights and liabilities of new con tracting parties accepted in its place. The tripartite agreement could not, therefore, be referable to the original contract of the 27th of June 1958, or treated as a continuation thereof. In the circumstances, it cannot be said that the respondent No. 2 acquired the dupe negative in respect of the film Chandranath under the original agreement of the 27th of June 1958. Coming now to the third question it will be seen that the relevant portion of the agreement Exh. 1(a) entered into between Messrs Eastern Film Agency and Star Film Distributors provided as follows :

And whereas the vendors are desirous of disposing of the sole and exclusive distribution, exhibition and exploitation rights of the picture Chandranath and whereas the purchasers have approached the vendors to purchase the same and whereupon the following terms and conditions have been agreed and accepted by and between the parties. Now this agreement witnesseth :‑ (1) That vendors hereby do transfer unto and purchasers hereby do accept transfer of the exclusive distribution and ex ploitation rights of the film Chandranath to be imported under the licence along with the dupe negative print and inclusive of the permission of duplication for the territory of East Pakistan for a consideration of Rupees fifty‑seven thousand five hundred and one (Rs. 57,501) payable in the manner hereinafter written and the amount of Customs Duty and Sales Tax actually required to be paid on the print of the said film for the purpose of clearance of the prints from the customs. (2) That in lieu of the payment of the aforesaid considera tion by the purchasers, the vendors hereby do assign and transfer in toto all rights, title and interest derived and to be derived by the vendors by virtue of the agreement between the vendors and Messrs Screen Classics, Calcutta, and utilisation of the Import Licence sanctioned by the Government to the vendors unto the purchasers. (3) That subject t due and faithful performance of representations made and fulfilment of the undertaking given by the vendors it has been agreed by and between the parties hereto that the consideration money as aforesaid shall be paid by the purchasers in the manner specified hereunder :‑ Rs. 7,501. ‑

On signing of these presents by Cheque No.‑‑‑‑‑‑‑on Llyods Bank Ltd. Dacca, receipt of which vendors hereby admit and acknowledge. Rs. 20,000. ‑

To be paid to Bankers for opening Letter of Credit in favour of seller of the film in terms of these presents. Rs. 30,000. ‑

To be paid to the vendors against satisfactory delivery of print, and other articles, if any, accompanied by original Import Application, Treasury Challans and such other papers and/or certificates required by the purchasers in terms of Clause No. 8 of these presents." It is said that these terms substantially amount to creating an agreement to sell the dupe negative and to give with it, as an ordinary incident attaching to the sale, the full rights of exploitation and utilisation of the said dupe negative. If this was really intended, then it is difficult to appreciate why in the first clause quoted above it is also provided that the transference of the exploitation rights along with the dupe negative print would also be "inclusive of the permission of duplication for the territory of East Pakistan." If this right of duplication, which is a right of user of the dupe negative, was an ordinary incident of the ownership of the dupe negative, then there was no need to make specific provision for this. It seems to me that this agreement has to be read along with the agreement Exh. 14(a) entered into between Screen Classics and Messrs Eastern Film Agency. This Exh. 14(a) describes the nature of the right being transferred to Messrs Eastern Film Agency in respect of the film Chandranath as "the exclusive lease of the distribution, exhibition and exploitation rights." Again, the operative portion of this agreement, after providing that the agreement witnesseth the grant of the exclusive distribution, exhibition and exploitation rights, goes on to provide that "this sum also includes cost of one brand new dupe negative print of the film Chandranath", and further provides that "immediately after the expiry of the distributors period of the rights they shall get all prints and dupe negative and all publicity material destroyed at their own cost and furnish the relative certificate to the Producers." This, in my view, confirms that it was never intended that ownership of the dupe negative was to be transferred to Messrs Eastern Film Agency or that the transaction was really for the sale of the dupe negative. In substance and in essence the contract was, in my opinion, for the transference of exclusive distribution and exhibition rights, and in order to facilitate the enjoyment of this right a dupe negative was also supplied to enable the distributor to make prints out of it. It was never intended that the distributor should become the owner of the dupe negative or put it to any other use, for, otherwise there would have been no necessity for providing that after the expiry of the period of the contract the dupe negative as well as all prints made there from shall be destroyed and a certificate of such destruction furnished. If there was a sale out and out, then the property in the dupe negative would have passed to the purchaser and the purchaser would have been entitled to deal with it in whatever manner he pleased without any limitation or restriction. The delivery of the dupe negative was, in my view, merely an incident of the contract for the transference of the rights of exploitation, distribution and exhibition, for, without the dupe negative such exploitation would not have been possible. Messrs Eastern Film Agency, the firm of the respondent No. 2, therefore, could not transfer to Star Film Distributors anything more than what it itself got. Indeed, the second paragraph of the agreement between Star Film Distributors and Eastern Film Agency, which has been quoted above, also recites that the vendors thereby assign and transfer in toto all rights, title and interest derived and to be derived by the vendors by virtue of the agreement between the vendors and Messrs Screen Classics. Coming now to the seventh question; namely, that the suit filed by the respondent Star Film Distributors was a suit which is itself described in paragraph 25 of the plaint as a suit for a declaration and injunction, and the reliefs claimed therein were as follows:‑ (1) Declare that the plaintiff has the exclusive right o distribution, exhibition and exploitation and printing of copies from the dupe negative of the film Chandranath imported by the defendant No. 1. (2) To grant permanent injunction against the defendants, their assignees, transferees or agents restraining them from exhibiting, exploiting, or distributing the picture Chandranath or making any print from the dupe negative of dealing in any way with the picture. (3) To direct the defendants by mandatory injunction to deliver the dupe negative of the print Chandranath to the plaintiff. (4) To award full costs to the plaintiff. (5) To grant any other relief or reliefs which the Court deems fit and proper in the circumstances of the case. Not only is there no averment in the plaint that the plaintiff had performed its part of the contract or that it was ready and willing to so perform its part of the contract as is usually to be found in a suit for specific performance, but on the other hand, the definite case made out by the plaintiff is "that the plaintiff has acquired exclusive right of distribution, exhibition and ex ploitation of the picture Chandranath in East Pakistan inclusive of the dupe negative and the right of making prints from the negative, as the price paid and agreed to be paid included the dupe negative also." This is further clarified by saying that the defendant No. I "having transferred the exclusive distribution, exhibition and exploitation" right of the said picture to the plaintiff was "bound in law and fact to deliver the dupe negative of Chandranath imported under the licence to the plaintiff." Upon a plain reading of this plaint, therefore, it appears to me that the plaintiff, namely, Star Film Distributors, itself understood that the delivery of the dupe negative was ant incident of the rights of exploitation and exhibition which had been transferred to it by the respondent No. 2 and it was fort this reason that the said respondent was bound to deliver the dupe negative to the plaintiff. There was no case made out in the plaint of specific performance of an agreement for the sale of the dupe negative, although it has to be mentioned that under clause 14 of the agreement entered into between Star Film Distributors and Eastern Film Agency it was clearly contemplated that in the event of any party attempting to commit a breach of any of the terms of the agreement or refusing to perform it the other party would be entitled to seek "an injunction order and/or sue for a specific performance". The plaintiff Star Film Distributors, therefore, knew that the nature of the contract entered into was such that if either party failed to perform its part, the remedy available for enforcing such performance would be by a suit for specific performance. Notwithstanding this, the suit was deliberately framed differently, and unless considerable violence is done to the language used in the plaint, it would be difficult, in my opinion, to convert it into a suit for specific performance. Indeed, neither in the Courts below nor even in the course of arguments in this Court was it ever contended on behalf of the respondent Messrs Star Film Distributors that the suit as framed was substantially a suit for specific performance. As far as I understood the learned counsel for the said respon dent maintained that, as had been held by the Courts below, the suit was substantially a suit for possession of the dupe negative after the declaration of the right of the plaintiff to the ex ploitation, distribution and exhibition of the film Chandranath. To give him, therefore, a relief now upon the basis that the suit was, in substance, a suit for specific performance would I say, with great respect, be granting to the plaintiff in the suit a relief which it never claimed at any stage, although it well knew that that was the remedy contemplated in the contract itself. For the reasons given above, I am of the view that once the plaintiff in the suit is held to be not entitled to the declaration of the right that it claimed, the suit must fail as a whole for, if it was a suit, as maintained throughout on behalf of the respondent, for possession, then that possession could not be granted unless and until the plaintiff had succeeded in establishing its title also, for, possession should follow title and not vice versa. It has been said that the title to the dupe negative never passed to the Star Film Distributors, for, that could not happen until delivery of the dupe negative had been effected, and it is for this reason that the contract between Star Film Distributors and Eastern Film Agency was construed to be an agreement for sale. If this be so, even then various questions may arise as to the right of the plaintiff to ask for specific performance of a contract for the sale of goods and various defences may be open to the defendants in the suit. This aspect of the case never presented itself to either the parties in the suit or the Courts below. To allow, therefore, a conversion of the suit at this stage will be causing grave prejudice to the defendants who have been afforded no opportunity at all to meet such a case. There is yet another difficulty that I feel in the way of granting to Star Film Distributors relief by granting it delivery of possession of the dupe negative only along with full right of user thereof. Such a relief not only gives to Star Film Distributors something which it never asked for but also gives it indirectly something which could not be given to it directly, namely, the right of exploitation of the film. In the view that I have taken Messrs Eastern Film Agency acquired the exhibition rights of the film Chandranath and the dupe negative in respect of it only under the tripartite agreement executed in August 1960, and not under the original agreement of the 27th of June 1958. I would also be inclined to hold that the appellant had acquired a valid right for the exploitation of the said film and to make prints out of the dupe negative, which could not be defeated on the ground that he had knowledge of the previous contract between Star Film Distributors and Eastern Film Agency. That contract gave to the Star Film Distributors the right, which Eastern Film Agency was to acquire under its agreement of the 27th of June 1958, with Messrs Screen Classics and not any other right. If that contract became im possible of performance and was subsequently substituted by another contract, it cannot be said that Messrs Eastern Film Agency, nevertheless, acquired the exploitation rights in respect of the film Chandranath under the original contract and, there fore, the appellant's acquisition was not bona fide. However, this question which is the last of the questions set out above by me; namely, as to whether the appellant acquired any title to the film Chandranath, does not have any bearing on the nature of the right acquired by Star Film Distributors. It is not, therefore, relevant for the purposes of determining whether the plaintiff has succeeded in establishing its case, for, it can only succeed upon the strength of its own case and not upon the weakness of its adversary's case. Since I have come to the conclusion that the plaintiff has failed to establish its rights to the exploitation of the film Chandranath in East Pakistan it was not, in my view, entitled to the possession of the dupe negative. I would, therefore, allow Civil Appeal No. 2‑D of 1963 and dismiss the plaintiff's suit. But having regard to the special circumstances of this case. I would leave the parties to bear their own costs. Appeal No. 2‑D of 1963 is partly accepted. The decree for a declaration as to rights of distribution, exhibition and ex ploitation is set aside, but the decree granting possession of the dupe negative is maintained. The appellant shall bear the costs of the plaintiff‑respondent. The ultimate responsibility for costs will however fall on the Eastern Film Agency, defendant No.

1. Defendant No. 2 if he pays costs to the plaintiff‑respondent shall be entitled to recover them from defendant No. 1 and the plaintiff will also be entitled to recover costs from defendant No.

1. This applies to costs in all Courts. Appeal No. 26‑D of 1961 is dismissed as Infructuous. There is no order as to costs. A. H. Order accordingly.