9911796707
TMI Blog1959 (8) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... nment were embodied in Exhibit A-2. Under that agreement the appellant's firm was to pay a sum of ₹ 15,000 as advance to the respondent against the right to distribute the film for a period of 41 years. The respondent was to give 2 prints of the picture and all available publicities, and thereupon the appellant's firm was entitled at their discretion to exploit and distribute the picture at such rates and on such terms and conditions as they deemed fit. In the net realisation from the exhibition of the film the appellant's firm was to take a commission of I2| per cent., while the respondent was entitled to the balance of 87$. The latter was, however, not to be paid over to the respondent till the entire sum of ₹ 15,000 advanced by the appellant's firm was wiped out, and that portion of the realisations was only to be credited as against the advance. When the entire amount of ₹ 15,000 was recouped by the appellant's firm, they were bound to pay the respondent in cash the 87 per cent, of the realisations. There were also certain other stipulations in the agreement to which reference will be made later. It is admitted that both the parties perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The learned Subordinate Judge held that, as there was a special provision under the contract that the amount advanced by the Amar Jyothi Talkie Distributors should be discharged out of the respondent's share of the realisations from the picture, there could be no right in the appellant to maintain the action personally against the former. On that finding he dismissed the entire claim although that finding would sustain only the dismissal of the claim in respect of the advance paid and would be no answer for sum of ₹ 2000 paid by the appellant for the respondent's benefit. Aggrieved by the decision the plaintiff has filed the appeal. 8. The sum of ₹ 8229-2-4 claimed in the suit comprises three items : (1) the refund of that portion of the advance which still remained undischarged at the end of the contract period, viz., ₹ 5481-0-8 (ii) the amount paid to the Dinamani Talkies, Madurai on behalf of the respondent by the appellant ₹ 2000 (iii) interest from 22nd January, 1953 to 22nd November, 1953 at the rate of 12 per cent, on its outstanding balance ₹ 748-1-8. 9. As regards the first item of claim the question to be considered is whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a promise to pay that amount can be implied. 10. It is evident that the sum of ₹ 15,000 was not intended to be a security for the performance of the obligations under the contract by the appellant's firm, as that amount was agreed to be liquidated as and when moneys were received on the exhibition of the picture during the period of the contract itself. Nor can it be said for the respondent that the advance amount paid was a minimum guarantee by the appellant firm. It was contended for the appellant that the advance should be held to be a loan by the appellant's firm to the respondent and that the portion which remained undischarged should be held to be repayable, as there would be an implied promise to repay a loan. The learned advocate for the appellant urged that the word 'Advance' itself would imply a loan. 'Advance' means literally a payment before hand; in certain cases it may be a loan but it cannot be said that a sum paid by way of advance is necessarily a loan. In London Financial Association v. Kelk L.R. (1884) 26 Ch. D. 107, it was observed, that the words-'advancing' and 'lending' might each have a different significatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties expressed the terms of their contract in a document they should be deemed to have expressed all their terms and conditions under which their rights inter se were to be regulated, and that the Court should not add to the terms expressly agreed to between the parties. It was contended that Clause 6 of the agreement provided a particular mode of discharge of the obligation of the respondent in regard to the advance paid, and that would exclude any other mode of discharge a fortiori personal liability. The contention was based on the legal maxim expressio unis est exclusio alterius meaning that the express mention of one thing implies the exclusion of another. In Brooms Legal Maxims, 1911 Edition, page 504 this rule is stated thus.: ... Where parties have entered into written engagements with express stipulations, it is manifestly not desirable to extend them by implications; the presumption is, that having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument. 14. In Singjee v. Tiruvengadam (1889) I.L.R. 13 Mad. 192, a question arose whether a hypothecation bond contained a personal covenant. The bond stipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They either by reasons of sentiment or by reason that they do no anticipate loss in the venture, do not sometimes provide for the sharing of the losses. That does not mean that if the partnership sustains loss the partners are not liable to share the same. In such a case an agreement has always been implied for the sharing of the loss in the proportion in which the profits are agreed to be shared between the partners. The question whether a term in a contract had to be implied or not, would depend on the nature of the transaction and the intention of the parties. 17. The maxim 'expressio unis est exclusio alterius' is not therefore an absolute one, and in Brooms Legal Maxims (ioth Edition at page 444) it is stated: Great caution is necessary in dealing with the maxim expressio unis est exclusio alterius, for as Lord Campbell observed in Sounders v. Evan L.R. 8 H.L. 729, it is not of universal application, but depends upon the intention of the party as discoverable upon the face of (he instrument or of the transaction; thus where general words are used in a written instrument, it is necessary, in the first instance, to determine whether those words are intended to incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent of the sale proceeds. If one were to accept the contention of the respondent, it would follow that in a case where he proceeded to sell the picture to a third party the appellant firm would have to be content with the 5 per cent, of the sale proceeds of the picture and forfeit the sum of ₹ 15,000. This is manifestly unjust and would not have been the intention of the parties. In such a case it is but proper to infer that the appellant firm would be entitled to be paid back, the unrecouped portion of the advance and also the 5 per cent of the sale price of the picture. We are, therefore, of the opinion that in the circumstances of the case the maxim cannot apply, and that the parties intended to adjust the advance sum of ₹ 15,000 at the end of the contract period, that an obligation to pay the unadjusted portion of the advance amount which remained due at the termination of the contract should be implied on the terms of the document, and that the appellant would be entitled to recover the amount due. 19. In the accounts submitted by the appellant to the respondent the sum of ₹ 2000 paid to Dinamani Pictures by the appellant's firm on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
