P L D 1964 Supreme Court 598 (PLP)

HAMOODUR RAHMAN, J.

‑This is a certificated appeal from the judgment and decree of a Division Bench of the High Court of West Pakistan in a regular first appeal which arose out of a suit filed by the appellant herein in the Court of the Senior Subordinate Judge, Lahore, for the recovery of a sum of Rs. 7,85,000 from the respondent herein. In the plaint in this suit, which was filed on the 10th of July 1948, the case that the appellant originally made was that after purchasing four films, namely, Kanoon, Sunjog, Bahar and Geet, from Messrs Kismat Distributors, Himmatnagar, Bombay, under a registered deed of sale dated the 1st of February 1944, for the sum of Rs. 19,00,000 he had sold and transferred to the respondent all the rights and privileges which he had himself acquired from the said Kismat Distributors, for the price of Rs. 20,90,000 (being the price that he himself had paid, namely; Rs. 19,00,000 and a guaranteed profit of Rs. 1,90,000 free of income‑tax) to be paid within 18 months. The terms and conditions of the afore said sale were said to have been recorded subsequently in a letter written by the respondent to the appellant. The appellant further alleged that although he had fully discharged all his obligations towards Kismat Distributors as also performed all his part of the contract with the respondent, the latter had up to the 31st of July 1945, (the date on which the period of 18 months mentioned in the letter expired) repaid only a sum of Rs. 10,75,000 leaving a balance of Rs. 10,15,

000. The appellant claimed interest on this balance according to custom and usage at 6 % per annum from the 1st of August 1945. This came to Rs. 1,74,

250. The total amount thus due on the date of the institution of the suit, i.e. the 10th of July 1948, was Rs. 11,89,250 but since the respondent had, after the 31st of July 1945, paid a further sum of Rs. 4,04,250, the net amount claimed in the suit was Rs. 7,85,000 with further interest at the same rate. The respondent in his written statement denied the appellant's claim and set up the case that the memorandum alleged to have been executed by him was merely an offer which he had made. This offer the appellant never accepted and even if he did accept it, the acceptance was never communicated to the respondent nor was the alleged memorandum over acted upon. Alternatively, he pleaded that even if it is assumed that the offer contained in the memorandum was accepted by the appellant, it did not amount to anything more than a mere agreement to sell and created no rights of the kind claimed in the plaint. Lastly, if the memorandum is assumed to be a of sale, as alleged by the appellant, then it is inadmissible in evidence for want of stamp duty. According to the respondent, the true facts were that after he had made the offer contained in the alleged memorandum the appellant instead of accepting the same actually on the very next day after his purchase of the films in question, i.e. on the 2nd of February 1944, entered into agreements in writing with Messrs Kapur Chand & Company of Bombay and their subsidiary companies appointing them sole distributors of the said films and granting them the exclusive and permanent exploitation rights in the whole of British India excluding the northern territories, all Indian States and all countries overseas excluding Ceylon. In these agreements there was a provision also for the sale of the pictures by the distributors who were to be entitled, in such event, to an overriding commission. This left with the respondent only the rights of distribution in the territories of northern India but subsequently on the 10th of May 1944, the appellant finding that he was unable to attend to the work of distribution, exhibition and exploitation of the aforesaid films, in view of his multifarious other businesses, executed a power of attorney in favour of the respondent empowering him to enter into, on behalf of the plaintiff, con tracts for the sale of, and grant of rights of exploitation, distribution, exhibition etc. in respect of the said films for the whole of the world or any part thereof and to sign, execute, complete or grant proper licences, conveyances and other documents for the said purpose as also to receive all moneys and other payments in respect of such transactions on account of the appellant. According to the respondent he has, in exercise of the powers given to him under this power of attorney, been receiving payments from Messrs Kapur Chand & Co. and depositing the same in the plaintiff's account from time to time. In addition to this, he has only the distribution rights of the pictures in the territories of northern India and for this also he has been submitting proper accounts to the appellant and depositing the amounts due to the plaintiff in respect thereof into his account from time to time. The sum of Rs. 14,79,250 admitted by the appellant to have been received by him up to the date of the institution of the suit was made up of deposits made in respect of the aforesaid collections under the power of attorney and as the distributor of the films in northern India. The respondent further maintained that Messrs Kapur Chand & Co. were still acting as the exhibitors and exploiters of the said pictures, except Met, as the agents of the appellant and they were also contacting the appellant directly and making payments to him Calcutta. A sum of Rs. 5,686‑12‑6 was, to the knowledge o pie respondent, paid directly to the appellant by Messrs Kapur Chand & Co. but what other amounts had been so paid directly by Messrs Kapur Chand & Co. the respondent was unable to say without looking into the accounts of Messrs Kapur Chand & Company. Confronted with this specific case set up by the respondent in his written statement the appellant filed a replication and in this he reiterated that the memorandum contained in the letter constituted a concluded contract, as, even if it was an offer, it had been accepted by the appellant and such acceptance was duly communicated to the respondent and the contract was acted upon. The appellant admitted the execution of the agreement of exploita tion in favour of Messrs Kapur Chand & Co. and the power of attorney given to the respondent in May 1944. As regards the agreements in favour of Kapur Chand & Co. and their subsidiary companies, it was, however, said that the appellant executed the same at the request of the respondent, because, up to that time the respondent had not taken the power of attorney in his favour, although he was, in fact, managing the business and effecting all such transactions. The appellant averred that he was not directly interested in any such transaction. As for the power of attorney it was said that this power was given under the terms of the agreement contained in the memorandum and all payments that were made by the respondent were made in pursuance of the agreement evidenced thereby except for the solitary amount of Rs. 5,686‑12‑6 which Kapur Chand & Company paid to the appellant, directly, as due to the disturbances prevail ing soon after the Partition of the country they were unable to contact the respondent. Upon, a chance meeting at Bombay this fact was mentioned to the appellant and the appellant told them to send the amount to him for transmission to the respondent. After the pleadings had been completed the trial Court also recorded statements on solemn affirmation of both the respondent and the appellant. In his statement the appellant maintained that the undated memorandum set up by him in his plaint was executed in March 1944, but even so reiterated that the agreement in favour of Messrs Kapur Chand & Co. was signed at the instance of the respondent, as the entire rights of the four pictures were really vested in him. He denied that he had anything to do with the distribution or exploitation rights in the said pictures or that Messrs Kapur Chand made payments in his name, but he admitted that "one amount of Rs. 5,000 and some of more were received" by him from Messrs Kapur Chand in 1948 along with a statement of accounts but he gave them no receipt and told them that he would send intimation of the payment to the respondent whom Messrs Kapur Chand were unable to contact due to the disturbances. As against this the respondent in his statement reiterated that he had only made an offer by the letter now set up as a memorandum of agreement but this offer was never accepted by the appellant. Afterwards the appellant gave him a general power of attorney and also appointed him as distributor of the northern India region on commission basis. According to him this offer was made sometime in January 1944, but it was not accepted. It was in exercise of his powers as a general agent under the power of attorney that he received payments from Messrs Kapur Chand & Company and others and deposited all these amounts in the account of the plaintiff. The moneys received by him, however, as a distributor for the northern regions were not always deposited in their entirety in the account of the appellant. He claimed that in April 1949, when he made the statement, he was still distributing those pictures in the northern India and was for this only entitled to a commission on the same basis as Messrs Kapur Chand & Company. Upon these pleadings and statements the trial Court framed the following issues (1) Did the plaintiff sell the four pictures, Kanoon, Sanjog, Bahar and Geet, orally to the defendant for a consideration of Rs. 19,00,000 and Rs. 1,90,000 the later amount free of income -tax ? (2) Does the undated writing `A' constitute a memorandum of the said oral contract ? (3) What is the effect of the said writing `A' being writing on an unstamped paper ? (4) Is the plaintiff entitled to any interest according to the trade usage ? If so, at what rate and on which amount ? What is the aggregate amount of the interest to which the plaintiff is entitled ? (5) What is the effect of the mukhtarnama Exh. D. 1, and the agreement Exh. D. 2, on the alleged oral transaction of sale between the parties ? (6) What payments, if any, has the defendant made beyond those committed by the plaintiff ? (Onus objected). Could the suit lie in the represent form ? (7) Relief. At the trial both parties adduced oral as well as documentary evidence. The appellant examined himself and one Abdur Rahman. The appellant was first examined on the 17th December 1949, but after the respondent had closed his evidence the appel lant was recalled and further examined on the 19th of March 1952. In his evidence the appellant set up the case that in 1943 the respondent, who had already the distribution rights in respect of these four pictures from the producers, namely, Kardar Pictures, in respect of the northern India territories, requested him to finance the purchase of the four pictures in question as Kardar Pictures were desirous of selling them. As an inducement he' offered him a net profit of Rs. 1,90,000 free of income‑tax. These pictures were at that time still under production and the understanding was that the appellant would not be called upon to invest at any point of time more than Rs. 10,00,000, for, the balance would be paid out of the profits earned by the pictures received and exploited. But the appellant would get back the entire sum of Rs. 19,00,000 plus the guaranteed profit within a period of 18 months. His further evidence was that although he was merely to finance the transaction yet the pictures would be actually purchased in his name, although they would be regarded as sold to the respondent, and his only interest in the transaction would be that he would within 18 months get back his money plus a clear profit free from income‑tax, of Rs. 1,90,

000. This was the agreement (Exh. A) which was, according to him, subsequently reduced into writing sometime in March 1944. It was in pursuance of this that the agreement of the 1st of February 1944, was entered into with Kismat Distributors, a subsidiary of Kardar Pictures at Bombay, and as a first instalment a sum of Rs. 5,30,000 was paid. Of this Rs. 1,00,000 had already been paid on the 31st of January 1944, by the respondent himself for taking delivery of the picture Kanoon. After that the respondent himself from time to time made payments to and took deliveries of the remaining pictures, from out of a cash credit account opened by the appellant with the Punjab National Bank with a limit of Rs. 10,00,

000. The respondent also from time to time out of the sale proceeds of these pictures made payments of Rs. 4,00,000 or Rs. 5,00,000 to Kismat Distributors, but the entire amount of Rs. 19,00,000 was paid by the 1st of February 1945. Even the pass‑book of the overdraft account remained with the respondent. The agreement with Kapur Chand & Company was ostensibly entered into by the appellant since no sale deed or power of attorney had till then been executed in favour of the respondent by the appellant. The appellant merely signed the agreement with Messrs Kapur Chand & Company at the request of the respondent. Even under this agreement with Messrs Kapur Chand & Company all payments had to be made care of the Indian Film Bureau, which is the firm of the respondent and at his address, namely, Post Box No. 50, Lahore, although at that time the appellant had an address of his own in Lahore being 57‑Mozang Road, Lahore. The power‑of‑attorney of May 1944, was also, according to the appellant's evidence, executed at the request of the respon dent and in accordance with the terms of the memorandum which gave to him the option either to take a power of attorney or a sale deed whichever he preferred. The appellant denied that the respondent carried on business in connection with these pictures on behalf of the appellant as his general agent under the power -of‑attorney but he admitted that the same was still in force and had not yet been cancelled. In support of his case he also produced certain letters written by the 'respondent to him in which the respondent was said to have clearly admitted liability for the repayment of this amount. As regards the memorandum, Exh. A, the appellant stated that he had also signed it in token of his acceptance and, as such, it constituted a concluded contract between him and the respon dent and entitled him to maintain the suit. His supporting witness Abdur Rahman claimed that he was a partner of the respondent in some other venture since 1944 ; that the respondent had in 1943 mentioned to him that he had purchased these very four pictures from Kardars and that he had asked the appellant to finance the purchase. This witness had to pay a sum of Rs. 55,000 to the respondent in his 1/4th share in respect of an exchange of certain lands at Lucknow, held jointly by him and the respondent with a hardware shop situated at Karachi. This witness also produced a letter (Exh. P. 1) which is dated the 26th of July but the year is not mentioned, but this must have been written sometime after 1948, for, according to the witness the exchange took place in 1948. In this the respondent admitted liability to the appellant and asked the witness to pay this sum of Rs. 55,000 to the appellant. In cross -examination, however, he admitted that he did not know that the respondent was an agent of the appellant, for, the appellant did never tell him that he had also executed a general power of attorney in favour of the respondent in connection with these pictures. The respondent examined himself and Mr. Kapur Chand Mehta of Messrs Kapur Chand & Company on commission at Bombay. The latter proved the agreement between the appellant and Messrs Kapur Chand & Company (Exh. C. 1), as also another letter of authority dated the 3rd of February 1944, given by the appellant to Kapur Chand & Company authorising them to sell all or any of the said pictures to any party they thought best for the territories of Bombay Presidency, Central Provinces, Central India and Overseas. This witness stated that Messrs Kapur Chand & Company all along dealt with the appellant in respect of the aforesaid pictures as principal to principal. Furthermore, according to him, the income realised by the exploitation of these pictures was credited to the account of the appellant after deduction of commission and up to November 1947, monthly statements of account had been regularly submitted to the appellant either at his Calcutta address or at his Lahore address, which was care of India Film Bureau, Post Box No. 50, Lahore. His firm had also received a copy of the power of attorney given by the appellant to the respondent and had on the basis thereof been dealing with the respondent as the constituted attorney of the appellant in respect of these four pictures. According to him, all payments by Messrs Kapur Chand & Company were made by cheques drawn in favour of the appellant and sent to him care of India Film Bureau. The payment of Rs. 5,686‑12‑6 was, however, made to Mr. Saigol personally at Bombay along with a statement of account from June to November 1947, (Exh. C. 4). This account is, also addressed to the appellant at White House 21, Chittaranjan Avenue, Calcutta, and is dated the 7th of January 1948. Copies of it were endorsed also to the appellant at 40‑Lawrence Road, Lahore and care of India Film Bureau, Mcleod Road, Lahore, for information. The receipt of this letter was admitted by the appellant who also filed the original thereof (Exh. P. 4). The respondent in his own evidence substantially supported the case made by him in his written statement but he was not very clear as to when he wrote out Exh. A, the alleged offer. In cross‑examination he had to admit that he did not remember the exact date of the execution thereof but when he was con fronted with his statement recorded on the 9th of April 1949, before the framing of issues he stated that the original offer was oral and it was made on various occasions but Exh. A was a subsequent record of it. He repudiated the suggestion that even if it was an offer it was accepted by the appellant and, therefore, constituted a contract. According to him the question of acceptance did not arise, for, on the very next day after the purchase of the films the appellant had given away the right of distribution and even of sale to Messrs Kapur Chand & Company in respect of all territories of the world except northern India and Ceylon. When he was confronted with the letters written by him to the appellant, namely, Exh. P. 6 and P. 7, wherein he had purported to admit liability, he explained that what he meant by this liability was merely a moral responsibility which he had taken upon himself by assuring the appellant at the time he purchased the films that the same would be successful and would earn huge profits. He also admitted that he had failed to deposit on some occasions the full amounts received by him in respect of the distribution of the said films in the northern India territories. The liability admitted in these letters was, therefore, also in respect of the non‑payment of the amounts received in connection with the distribution of the pictures in northern India. The distribution right claimed by him in respect of the northern India Mter itories was said to have been granted orally on the same terms conditions upon which Messrs Kapur Chand & Co. distributed in the other territories. The trial Court accepted the appellant's evidence and held that the memorandum (Exh. A) was executed sometime in March 1944, and that it was a subsequent record of an earlier oral agreement between the appellant and the respondent for the sale of the said pictures. For coming to this conclusion strong reliance was placed on clause 2 of the agreement (Exh. D‑2) executed in favour of Messrs Kapur Chand & Company which provided that the monthly statements of accounts and remittances should be sent care of India Film Bureau, Post Box No. 50, Lahore, which was the address of the respondent and his firm. According to the trial Court this fully supported the version of the appellant that the respondent was the real owner of the films and that the appellant was only a financer, who was interested merely in receiving back his money with the guaranteed profit. The respondent's failure to establish the date upon which he wrote this memorandum, or offer as he called it, was held to evidence that the respondent was not giving truthful evidence. Furthermore, since the memorandum (Exh. A) showed that the appellant had also confirmed and signed it, there had been sufficient acceptance. The communication of such acceptance was also assum ed, for, according to the trial Court the document must have been signed by both parties at the same sitting, as stated by the appellant. The letters (Exhs. P. 1, P. 6 and P. 7) were also held to be inconsis tent with the stand taken up by the respondent. The explanations sought to be given by the respondent of the admissions contained in these letters were characterised as anything except the truth." The trial Court in fact opined that on the respondent's side "there is as much uncertainty about his position as there is cer tainty about the plaintiff's stand." Neither the agreement executed in favour of Messrs Kapur Chand & Company on the 2nd of February 1944, nor the power‑of‑attorney executed on the 10th of May 1944, was considered to be inconsistent with the stand taken up by the appellant, for, the agreement in favour of Messrs Kapur Chand was relied upon to show that even in it the respondent had been treated as a de facto owner of the pictures. This position had been merely legalised by the execution of the power‑of‑attorney in pursuance of the terms of the memorandum (Exh. A). The power‑of‑attorney was supposed to be a device for saving stamp duty. In fact, according to the trial Court, the respondent "was to be the owner of the pictures as soon as they were purchased in the plaintiff's name and that the negotiations with Messrs Kapur Chand & Company were being conducted by the defendant himself and the plaintiff was merely asked to sign these drafts as the defendant had, at that time no document in his possession to enable him to act independently of the plaintiff". This was held to have been further confirmed by the admission of the respondent himself in his evidence that he had started acting in respect of the distribution of the said films even before the execution of the power‑of‑attorney. In this view of the matter the trial Court gave a decree or the full amount in favour of the appellant with costs, and interest on the decretal amount at the rate of 6% per annum both up to the date of the decree and from that date till the actual realization of the amount. From this the respondent went up in appeal to the High Court. The High Court took a contrary view. According to it the document "Exh. A was executed either simultaneously with the execution of the agreement with Messrs Kismat Distributors or shortly afterwards but before signing the agreements with Messrs Kapur Chand & Company" and the document Exh. A itself was construed as a mere agreement to sell and not to deed of sale the contention that by execution of a power‑of‑attorney in favour of the respondent the appellant had, for all intents and purposes, transferred as full powers as could be transferable under a deed of sale, was also rejected.' In the facts and circumstances of the present case it was, according to the High Court, highly improbable that the plaintiff would have parted with his title in the films without any security for repayment of the huge sum spent by him in purchasing them. The appellant was held to have taken good care not to part with his title until his entire amount had been realized. Hence the legal position, according to the High Court, was that there was only an agree ment to sell between the parties which was to be completed on the payment of Rs. 20,90,000 by the defendant to the plaintiff and till then the title in the pictures continued to remain vested in the plaintiff." Having come to this view the High Court set aside the findings of the trial Court on the first two issues but left the other issues undecided, for, in its view, it was unnecessary to discuss the merits thereof. It is from this judgment that the appellant has come up on appeal before this Court upon a certificate granted by the High Court on the 25th of November 1959, under the late Constitution. The certificate was granted, as the value of the subject‑matter in dispute in the suit and in the appeal was in excess of Rs. 10,000 and the judgment of the High Court was a judgment of reversal. Since this appeal is as of right and the High Court has reversed the findings of the trial Court learned counsel appearing in support of this appeal has taken us through the evidence in this case, and sought to assail the findings of the High Court both on facts as also its construction of the memorandum Exh. A. It is conceded before us that the High Court was right in taking the view that the main question to be decided in this case is as to what was the true construction of the docu ment Exh. A. If it created a concluded agreement, then what was the nature of that agreement and whether it did effectuate a sale of the pictures as contended on behalf of the appel lant? The oral evidence in this case is, our opinion, not o much value, for, it is furnished mainly by the parties interested in the dispute. The only other witness examined to furnish corroboration of the statements of the plaintiff‑appellant was person who came at his own expense to give evidence on behal of the appellant without being summoned to do so and was actually staying with the appellant when giving evidence. The trial Court did not consider this to be sufficient for rendering his evidence of doubtful value but we are inclined to agree with the High Court that such conduct on the part of the witness did B indicate an unusual anxiety to assist the appellant in his case and, therefore, implicit reliance could not be placed on his word o mouth. Similarly the oral evidence of the representative o Messrs Kapur Chand & Company taken on commission was useful merely for proving the documents executed by the appellant in favour of Messrs Kapur Chand & Company and sonic correspondence that passed between them. This case accord ingly, has to be decided mainly upon the documentary evidence. . Before taking up for consideration this documentary evidence, however, the first question that has to be decided is as to when Exh. A was executed by the respondent. So far as this is concerned, the document itself bears no date and we have only the conflicting verbal statements of the appellant and the respondent on this question. The appellant has stated that it was executed in March 1944, and both he and the respondent signed it at the same sitting. As against this the evidence of the respondent is not very clear. First he stated that he made the offer either in December 1943, or January 1944, but when pressed further he had to admit that he did not remember the exact date of the execution of that document. In his statement before the framing of issues he had also stated that probably the offer was made in January 1944, when negotiations were still going on for the purchase of the films from Kardar Pictures. Ultimately he suggested that probably it might have been written on the 1st of February 1944, after the agreement with Kismat Distributors and that the offer of which he had been speaking earlier was really an oral offer which he had made on several occasions to the appellant. He denied, however, that the offer was ever accepted or that he was informed of such acceptance. His case is that he inferred from the subsequent conduct of the appellant that the offer did not appeal to the latter and, therefore, he had appointed Messrs Kapur Chand as his sole distributing and exploiting agents. If this document was executed in March 1944, as stated by the appellant, one would have expected some reference therein to the earlier distribution agreement in favour of Messrs Kapur Chand, for, the agreement in favour of Messrs Kapur Chand was clearly inconsistent with the rights which were sought to be granted by Exh. A. Similarly this could not have been executed before the execution of the agreement with Messrs Kapur Chand & Company, for, there would, in that case, have been some mention in the latter of the existence of Exh. A and of the fact that the pictures had been sold to the respondent. The provision in the agreement with Messrs Kapur Chand that Messrs Kapur Chand would send all statements of account and remittances to the appellant care of India Film Bureau, Post Box No. 50, Lahore, does not, as the trial Court was inclined to think, conclusively indicate that Exh. A had come into being before this document Exh. D‑2 of the 2nd of February 1944. It is not unlikely, as explained by the respondent, that the appellant used the said address, as he had not till then any office of his own at Lahore. We are, therefore, inclined to agree with the High Court that Exh. A came into being sometime after the execution of the deed of sale by Kismat Distributors in favour of the appellant on the 1st of February 1944, but before the execution of the agreement in favour of Kapur Chand & Co. on the 2nd of February 1944. The referen6e in Exh. A to the agreement between Kismat Distributors and the appellant also confirms this view. The document Exh. A is in these terms :‑ "From : K. H. Kazi, Proprietor, India Film Bureau, Lahore. To : Mr. Saeed Saigol, Lahore. Dear Sir, This is to put on record the arrangements between you and me in respect of the purchase of the four Kardar Production's Pictures, namely, Kanoon, Sanjog, Bahar and Geet, for Rs. 19,00,000 as per agreement between Kismat Distributors, Himmat‑ nagar and yourself, dated 1st February 1944. (1) It is agreed that I shall enjoy all those rights and privileges in respect of the aforesaid pictures that have been granted to you under the aforesaid contract with Kismat Distributors and I shall be entitled to do all acts and things necessary for the conduct of the business in respect of exploita tion, etc. of the four pictures for my exclusive benefit and shall be responsible for all losses or profits accruing due to such business dealings in respect of the aforesaid pictures. You shall execute a general power‑of‑attorney in my favour enabling me to conduct the business in respect of the aforesaid pictures independently and will also have no objection to transferring the entire agreement in my name if so desired. You will also have no objection to execute sale‑deeds in my favour for North or any other territory that I may desire, on the price that I may fix for the purpose of such transfer. (2) It is, however, agreed that notwithstanding what is said above, your interest in the transaction shall be only to the extent of your getting a net guaranteed profit of Rs. 1,90,000 free of income‑tax. (3) It is agreed that you shall pay all moneys required to be paid from time to time under the aforesaid contract with Kismat Distributors for taking of deliveries of prints and publicity of the aforesaid pictures, it being understood that your investment shall not exceed Rs. 10,00,000 at any one time and further that you shall not claim any interest in respect of the above investment. (4) It is agreed that I shall be responsible to you for the repayment of all such moneys as may be invested by you and shall continue to reimburse you from time to time so that the entire amount is repaid to you within one and a half year of your first payment including the amount of your profits as aforesaid. (5) It is agreed that all expenses, etc. in respect of the conduct of business in respect of the aforesaid pictures shall be on my own account and you shall not be responsible for any such expenses except the amount of interest as mentioned above. (6) It is agreed that you shall pass on to me the receipts for such amount of interest as you may have to pay to the Punjab National Bank in your Cash Credit Account with them relating to your investment in this transaction at the time of my paying you Rs. 1,90,000 net as aforesaid. (7) It is agreed that you shall be deemed to have first lien on the income of all the aforesaid pictures till such time as your entire investment together with your guaranteed profits as aforesaid have been fully paid up. Yours faithfully, (Sd.) K. H. Kazi. I confirm the above. (Sd.) M. Saeed Saigol." It will be noticed that its first clause clearly contemplates that a general power‑of‑attorney will be executed and that the appellant will have no objection to transferring the entire agreement (Presumably the agreement between Kismat Distributors and the appellant) in the name of the respondent, if he so desired. Furthermore, that the appellant will have no objection to execute sale deeds in the respondent's favour for any territory that he may desire on a price that the respondent may fix for the purposes of such transfer. The subsequent clauses go on to provide that the appellant will have no further interest in the transaction, apart from getting a net guaranteed profit of Rs. 1,90,000 free of income‑tax. The respondent also undertakes all responsibilities for the refund of all moneys "invested" by the appellant and to incur all expenses himself in respect of the conduct of the business in respect of the aforesaid pictures. He even accepts liability for paying interest to the Punjab National Bank in respect of the cash credit account opened for making the advances for the purchase of the pictures. Finally it contemplates that the appellant shall have a first lien on the income of the pictures till such time as his entire investment together with the guaranteed profits have been fully paid up. It appears to us that this Exh. A contemplates a situation in which although the respondent was to be in de facto control and management of the business in respect of these films yet the appellant as the financer of the capital for the purchase of the films was, since no security was being furnished for the investment so to be made, making sure that the property in the films did not pass out of his hand until the entire amount invested by him together with the guaranteed profits had been paid back. It is for this purpose that the lien on the income was being provided for. These terms by themselves were thus clearly inconsistent with the position now taken up by the appellant, for, by no means could they be construed as a document transferring title in the films to the respondent. It was clearly in the contemplation of the parties that when the necessity arose, proper documents of title would be executed to transfer the legal title in the said films to the respondent, but until that was done, the respondent was merely to exercise the rights of the appellant as his constituted attorney or agent. This position is confirmed also by recitals in the document Exh. D. 2 executed on the 2nd of February, 1944, in favour of Messrs Kapur Chand, for, in clause 4 of this agreement the appellant reserves to himself the right to sell outright any of these pictures in any of the territories or in any of the stations situated in the territories given to Messrs Kapur Chand. If the appellant had sold these rights to the respondents, then surely there was no necessity of making any such reservation in respect of such power of sale. It should have been recited therein that such sale had already been effected. Again, clause 13 of the latter agreement recited that the appellant was the owner of the above four pictures which were free from any encumbrances and that he had full power to enter into the agreement. This also does not indicate that this agreement was being entered into as a mere benamdar or ostensible owner. Apart from this, the other documents executed in favour of Kapur Chand on the 3rd of February 1944, namely, Exhs. C. 2 and C. 4, are also inconsistent with the position that the appellant had already parted with the ownership of the films. The subsequent conduct of the appellant himself, to which reference has not been made in either of the judgments of the Courts below, seems also to be inconsistent with the position now taken up by him. The letters written by the appellant to the respondent on the 24th of August 1944, and the 25th of August, 1945 (Exhs. D. 3 and D. 5) do not indicate that the appellant was merely a name lender in this transaction. In both these letters he has given detailed instructions to the respondent as to what should be done by him and this shows that the appellant was keeping himself fully informed as to the financial position and the dealings of the respondent. In the first letter there is an actual reference to the powers which have been given to the respondent and in the second letter a statement of account has actually been asked for of the same nature as had been previously received. The statements of account filed by the respondent show that separate accounts were being maintained of these transactions in the name of the appellant himself even in the books of the respondent. The appellant himself did not file an account of his own or challenge in cross‑examination the accuracy of the accounts filed by the respondent, hence, the accuracy o the accounts disclosed by the respondent is not in dispute. It may be pointed out here that there could have been no difficulty for the appellant to produce his accounts of these transactions, for, as already indicated, the moneys were being drawn from out of a cash credit account and the deposits were also being made into the same account in reimbursement. Statements furnished by the Punjab National Bank could, therefore, have been easily produced. The failure to call for such accounts certainly raises a presumption that if those accounts, which were available, had been called for, they would not have supported the appellant's case. The execution of the agreement in favour of Messrs Kapur Chand (Exh. D. 2) on the 2nd of February 1944, and the power of attorney (Exh. D. 1) on the 10th of May 1944, also evidence conduct inconsistent with the case sought to be set up by the appellant. This inconsistency the appellant also found some diffi culty in explaining away in his evidence. He was far from certain as to his own position. Thus, although in the original plaint a straightforward case of a sale was made out, the facts disclosed in the written statement compelled the appellant to shift his position in his replication, where it was said that the agreement in favour of Kapur Chand was really entered into by the respondent but the appellant signed it at his request as no power of attorney or deed of sale had been formally executed in favour of the respon dent till then. The power of attorney in favour of the respondent was also sought to be substantiated on the basis of the agreement Exh. A and it was said that it was a document which, for all intents and purposes, vested complete control of the pictures in the respondent as owner. It is no doubt true that the power is a general power empowering the respondent to enter into contracts with exhibitors and distributors as also to enter into contracts for sale of the appellant's right of exploitation and exhibition in all or any of the said pictures for the whole world or any part thereof, to receive payments on his behalf, to sue or to defend suits and other proceedings, to compromise such suits or proceedings and refer the same to arbitration and to do all other acts and things necessary for the above purpose. But it was, according to its own recital, executed, because, the appellant was due to his multifarious engagements unable personally to attend to the said business of exhibition, exploitation, distribu tion, sale, etc. of the said films, which he had purchased from Messrs Kismat Distributors. The memorandum (Exh. A) by its clause 1, no doubt, contemplated the execution of such a general power of attorney to enable the respondent to conduct the business in respect of the said pictures independently. But neither the power of attorney by itself nor even when it is read in conjunction with the memorandum (Exh. A) can be said to have effected a transference of the right, title and interest in respect of the aforesaid pictures to the respondent. The property in the pictures still remained with the appellant and he had also a lien on the income of the said pictures. There is nothing in the power of attorney to show that it was an irrevocable power or that it could not have been cancelled or withdrawn at any time that the appellant desired. The fact that this has not been cancelled even up to this date does not alter its essential character or make it irrevocable. The explanation of the appellant that he executed all these documents at the behest of the respondent is a wholly unconvinc ing explanation. The appellant, who was admittedly an astute businessman, it is difficult to accept, would part with such a large amount of money without any security and without even keeping any control over the films purchased with this money. It is not without significance that the appellant, instead of making over this money to the respondent, actually routed all these transac tions through a cash credit account with the Punjab National Bank. The correspondence referred to earlier shows that he was not a mere silent spectator of the dealings of the respondent in respect of these films. In fact, he was even giving instructions as to what the respondent should do when the respondent asked for a further sum of Rs. 2,40,000 to make payments to Kismat Distributors. The simple story that the respondent had from time to time paid a sum of Rs. 10,75,000 to the appellant up to the 31st of July 1945, does not also represent the correct state of affairs as disclosed by the accounts maintained in the name of the appellant in the books of the respondent. The statement of accounts, Exh. D‑8, disclosed by the respondent, showed that up ,to the 31st of July 1945, he had paid on behalf of the appellant a 4um of Rs. 12,47,462 out of which only Rs. 4,80,070 was received in cash from the appellant whilst Rs. 2,90,480 was received through Kapur Chand & Company. This showed that the respondent had contributed in this account a sum of Rs. 3,76,

000. As against this during the same period the respondent had earned an income of Rs. 4,20,465 by exhibition of the films in northern India territory. Debiting the sum of Rs. 3,76,911 from this amount the respondent was still in arrears to the extent of Rs. 43,

554. The amounts thus paid, according to this account, by the respondent do not come up to Rs. 10,75,000 as stated by the appellant to have been received in reimbursement. This would indicate, as the High Court has held, that apart from the payments made by the respondent the appellant was also directly receiving the income of the pictures from Messrs Kapur Chand and other parties, particularly, since the accuracy of the account exhibited by the respondent was neither challenged nor any other accounts produced by the appellant. It would thus appear that neither upon a fair reading of these documents nor upon the subsequent conduct of the appellant nor his pleadings and evidence in Court it is established that he was merely an ostensible purchaser of these pictures whilst the real purchaser was the defendant. The trial Court has taken the view that because the respon dent was not able to give a firm date on which he wrote out the memorandum (Exh. A) or to explain away satisfactorily the admissions of liability made by him in Exhs. P. 1, P. 6 and P. 7, his case must fail. In Exh. P. 1 there is nothing about the pictures actually but in this the respondent merely admits that he has to make certain payments to the appellant and asks P. W. 1, Sheikh Abur Rahman to pay the amount of his share to the appellant. In Exh. P. 6 the respondent certainly expresses his shame upon being unable to fulfil his promise to the appellant and failing to deposit the amounts due to the latter in his account. In this it is also admitted that the transaction regarding the Kardar Pictures had brought about a great loss to the respondent as a result of his faulty estimation of the merits of the said pictures. He speaks also in this of having taken the responsi bility upon himself in respect of the said pictures. These admissions, it is said, on behalf of the appellant show that the respondent admits that loss had occurred to him in connection with his business with Kardar. The only business that this could refer to was the business with regard to these pictures, and if he was merely an agent of the appellant in respect of them, then there was no question either of his having any business with Kardar Pictures or suffering any loss. This argument, however, overlooks that in this very letter the pictures are described as "your pictures", that is to say, the pictures of the appellant. If, as contended by the appellant, the pictures were really the pictures of the respondent, then the description "your pictures" was hardly appropriate. Exh. P. 7 also speaks of the responsibility shouldered by the respondent who admits that he is indebted to the appellant. But these admissions do not unequivocally support the case of the appellant nor do they make out a case that the respondent in accepting responsibility for the loss incurred in connection with these pictures was admitting that he was the true owner of the pictures and that the loss was his loss. Taking all the facts and circumstances into careful consideration we are of the view that the appellant was induced to finance the purchase of these pictures by the respondent, but the appellant being a shrewd businessman could not countenance the making of such a large advance without any control over the pictures and their income till he was fully reimbursed. It is for this purpose that all the transactions were carefully designed so that the appellant should remain the owner of the pictures and keep an effective control over the management of the business of exhibiting and exploiting the said films which was to be conducted by the respondent. The ultimate intention, no doubt, was that when the amount agreed upon, namely, Rs. 20,90,000, had been reimbursed to the appellant, he would execute formal conveyances and documents of transfer in favour of the respondent. In this view of the matter the admission of responsibility by the respondent in Exhs. P. 1, P. 6 and P. 7 becomes intelligible. The respondent had over‑estimated the merits of these pictures and was, therefore, of the view that he would be able to earn huge profits even after realising for the appellant Rs. 20,90,

000. The pictures, .however, did not prove out to be so successful and the hopes of the respondent were belied. It is not unlikely, therefore, that he felt morally responsible. The view, therefore, that has been taken by the High Court in appeal appears to be a correct view that the memorandum (Exh. A) was executed at the same sitting by the respondent and the appellant after the purchase of the pictures and before the execution of the agreement in favour of Messrs Kapur Chand. But the agreement even so did not evidence an out‑and‑out sale of the pictures but merely constituted an agreement to sell and transfer the pictures to the respondent after the entire payments had been made and the appellant fully reimbursed for the moneys advanced by him. In this view of the matter we are in agreement with the High Court that the appellant was rightly held to have failed to establish the case brought by him on the basis of a completed agreement of sale. The High Court, however, conceived the possibility of the appellant suing in the alternative for damages for breach of the agreement even if it was only an agreement of sale. It ‑appears that in view of this possibility a suggestion was also made by the High Court to the counsel for the appellant to consider the desirability of applying for necessary amendment to the plaint, but notwithstanding this suggestion no such prayer was made either orally or in writing before the High Court till the conclusion of the hearing. The appeal was, accordingly allowed and the appellant's suit was dismissed with costs throughout. Learned counsel for the appellant has now before us con tended that even though no such amendment was made, there was nothing which prevented the High Court itself from granting such a decree for damages, if the plaintiff was found to be so entitled to it. He, therefore, requests us to give him such a decree or to permit him even at this stage to amend the plaint. We are unable to agree with the learned counsel that a decree for damages could have been made without amendment of the plaint, for, the case therein made was an entirely different case and there was no prayer therein for any relief by way of damages. Such a specific relief could not be granted to him as a general of other relief, for, a plaintiff cannot ask for a specific relief of different description unless the facts and circumstances alleged o the pleadings will consistently maintain that relief as well. The High Court was, therefore, right in asking the appellant to amend his plaint if he so desired, but since that opportunity was no availed of in that Court, should the appellant be allowed to ask for it in this Court ? We do not think that we would be justified in allowing him this facility at this stage after he had declined to avail of the suggestion made by the High Court, not only because such a suit for damages for breach of the contract of 1944 would now be clearly barred by time' but also because the right itself of the appellant to claim such damages is not free from doubt. Granted that the agreement Exh. A created an agreement to sell, the further question would still arise as to what was it that was agreed to be sold ? Was it some movable property or merely a right to exploit the films or was the transaction contemplated of a composite nature, namely, the transference of the rights of exploitation as well as some movable properties in the shape possibly of some dupe negatives to enable the right to be enjoyed and exercised ? Having regard to the nature of transac tions of this kind the sale contemplated was, we are inclined to think, in substance a sale of the right to exploit the films in question throughout the whole world without any restric tion as to the manner or the method or the area of such exploitation. This is exactly what the appellant himself had acquired from Kismat Distributors and this is what Exh. A contemplated to transfer upon the consideration of the return of the amount invested with a guaranteed profit of 10%. If this be so, then did not the transference of the same rights the very next day or soon after the execution of Exh. A to Messrs Kapur Chand & Company for the entire world excluding the insignificant area of northern India amount to a total repudiation of the agreement Exh. A, for, the sole consideration upon which the sum of Rs. 20,90,000 was to be payable to the appellant was the transference of such rights of exclusive exploitation in all areas of the world. This would inevitably raise the further question as to who committed breach of the contract? If it was the appellant, then could he still claim damages for the breach of such a contract from the respondent having already transferred the substantial portion of such rights to another person and defeated the expectation of profits of the other contracting party to Exh. A in such a manner as to practically make it non existent? The granting of the power of attorney at a subsequent stage could not improve matters, or, this reduced the position of the respondent to that of a mere accountant and receiving agent on behalf of the appellant. The respondent having been thus deprived completely of the position that a guarantor of such a huge profit would naturally expect to be in, could the guarantee be still enforcible as against him? These questions would have to be determined in favour of the appellant before his right to claim any damages at all, as upon a breach of contract, could be entertained. The above questions, it will be appreciated, cannot be determined in the present state of either the pleadings or the evidence on the record. The prayer of the appellant, therefore, that he should be allowed the relief which the High Court thought he was entitled to after amendment of the plaint, cannot be acceded to. On the other hand, if the contract evidenced by Exh. A stood repudiated from the time of the execution of the agreement between the appellant and Messrs Kapur Chand & Company and was later substituted by the contract of agency created under the power of attorney executed in favour of the respondent, then it may be possible even at this stage for the appellant to press his claim against the respondent on the basis of this substituted con tract of agency. The respondent has throughout been taking up the position that he acted as such agent of the appellant and that he was still so exploiting the said films as such agent even at the time his evidence was recorded. The power of attorney is pre sumably still in force and has not yet been withdrawn or cancelled. It may, therefore, be still open to the appellant to claim an account from the respondent in an appropriately framed suit, if he is so advised. For the reasons we have given above we are of the view that this appeal must fail and is, accordingly, dismissed. But since the appellant may have to enter into further litigation to recover on the basis of the contract of agency such amounts as may be found to be due to him upon the taking of accounts, we make no order as to costs. A. H. Appeal dismissed.