S.B. Sinha, J. - (1.) These two appeals involving common questions of fact and law here, with the consent of the parties, taken up for hearing together and are being disposed of this common judgment.
(2.) FMAT No. 1041/95 arises out of an order dated 4.2.98 filed by the appellant herein against the respondent. In T.S. No. 192 of 1997. F.M.A.T. No. 1040/98 arises out of an order of the same dated passed by the learned trial Judge Title Suit No. 16/97 which was filed by the respondent herein.
(3.) The appellant herein admittedly advanced loan in favour of the respondent. The transactions between the parties admittedly had started in the year 1982. According to the appellant, two agreements dated 22.5.82 were entered into by and between" the parties viz, (a) an agreement for sale with respect to "Usha Cinema" between Smt. Meera Dutta, Nawal Kishore Tharad, Nishi Kanta Manna and Kashi Nath Dutta; (b) agreements for film booking agency relating to the said cinema entered into between Smt. Meera Dutta and Kashi Nath Dutta. Allegedly Meera Dutta in whose name the aforementioned cinema hall stands issued a letter on 29.5.82 to Eastern India Motion Pictures Association for publication in bulletin relating to appointment of Nawal Kishore Tharad as sole and exclusive booking agent of the said cinema; pursuant whereto the said letter was published on 12.11.82. The respondent herein although admits execution of agreement for film booking agency but categorically denies and disputes the agreement for sale with respect to Usha Cinema. The purpose for entering into the said agreement for sale is said to be; (a) The owner was incurring heavy loss. (b) The owner agreed to sell the property at Rs. 18 lakhs; (c) The owner agreed to have Rs. 40,000/- for the present and the balance consideration money was agreed to be paid part by part to meet the demand of her creditors. (d) the conveyance was to be executed after the conclusion of the litigation then pending with her creditor Bhagyalaxmi Exhibitors Private Ltd.; (e) If the interim payments exceeded Rs. 16 lakhs then the owner was bound to hand over the management and Box Office collection to the prospective purchasers; (f) The prospective purchasers after meeting the expenses were authorised to appropriate the residue towards the interim interest at the rate of 24% per annum for the sum advanced; (g) The owner was required to appoint prospective purchasers as the exclusive booking agents at a commission of 5% of the net Box Office collection.;