BASAK, J. - (1.) This appeal is directed against a judgement and decree dated 4th of July, 1977 whereby the learned Judge dismissed the claim of the plaintiff and passed decree in favour of the defendant No. 2 on the basis of the counter-claim of the defendant.
(2.) The short facts of this case, which are relevant for the purpose of this appeal herein, are as follows :-
(3.) There was a distributorship agreement between the Plaintiff and the defendant No. 1 on 18th Mar. 1964 pursuant to which a sum of Rs. 1,30,000/- as minimum guarantee was to be paid by way of certain instalments by the plaintiff to the defendant No. 1. The plaintiff was also to spend Rs. 40,000/- on publicity. The plaintiff paid to the defendant No. 1 four instalments aggregating Rs. 60,000/-. there were some modifications of the agreement thereafter. On 17th Oct. 1969 there was a letter from the defendant No. 1 to the plaintiff recording an agreement to pay Rs. 1,95,000/instead of Rs. 1,30,000/- and the balance of Rs. 1,35,000/- was to be paid against delivery of 12 prints from Ramnod Research Laboratories. In Mar. 1970 there was an assignment of all rights and interest of the defendant No. 1 in favour of the defendant No. 2 which was recorded by a letter dated 12th of Mar. 1970 and this position is not disputed before us. There was a letter of 7th April, 1970 which, having regard to the contention raised herein, we set out hereinbelow :- "Re : Delivery of prints of the picture 'JUARI' for the circuit of Bengal excluding Bihar and Nepal. With reference to your letter dated, it has been agreed upon irrevocably between ourselves that I will give you delivery of 12 (twelve) brand-new Prints and 8(eight) loan prints as requested in your said letter. That you will pay to Messrs. Famous Cine Laboratories and Studios (P) Ltd., Mahalaxmi, Bombay on my account under your contract with M/s. Lotus Productions a sum of Rs. 90,000/- against delivery of 12 brand-new prints and the balance amount of Rs. 40,000/- you will aye me as follows : Rs.5000/- on or before 27-4-70 by Demand Draft in my favour JUDGEMENT_280_AIR(CAL)_1988Html1.htm I have agreed to indemnify you from any claim or demand or action whatsoever arising out of or in respect of or touching my delivery to you of the prints and publicities of the above picture as also the deferred payment of the above amount of Rs. 40,000/-. Thanking you.";