IMPORTANT POINTS:
An incorporeal or intangible property like copy right in respect of a movie produced, is not exempt from attachment under the scheme of Code of Civil Procedure. Indivisibility of such a property is by no means a ground for refusing an order of attachment before judgment. The expression `property` used in Order XXXVIII Rule 5 has a very wide and comprehensive meaning and it does not stand confined to movable assets or immovable properties alone. The usual mode of attaching a movable asset by actual seizure cannot be adopted with respect to the property stored or preserved in the CD or Hard Disc of a Movie, evidently for want of effectiveness.

T.V. ANILKUMAR, J.

1. The appellants are defendants 1 and 2 in O.S. No. 10/2019 on the file of the IInd Additional Sub Court, Thiruvananthapuram. They are Producers of Malayalam movie captioned as 'Muhammadum Albiyum Shathrukalaya Katha'. The 1st respondent, plaintiff obtained in I.A.108/2019 an order under Order XXXVIII Rule 5 of the Code of Civil Procedure (for short the Code) attaching the Hard Disc/CD content of the said original movie kept in the custody of the defendants 4 to 7. Being aggrieved by the impugned order of attachment before judgment of the IInd Additional Sub Court, Thiruvananthapuram passed on 14.2.2019, the defendants 1 and 2 in O.S No. 10/2019 have filed this appeal.

2. The first respondent-plaintiff is a business man. He filed O.S. No. 10/2019 for realisation of Rs.91,88,333/- from appellants alleging that the latter borrowed Rs. 85 lakh from him in several instalments since February 2018 for the purpose of producing the above Malayalam film and after repeated demands for return of the amount, the appellants finally executed and delivered on 9.5.2018 a cheque in the name of the first respondent for a sum of Rs. 85 lakh post dated to 15.11.2018 drawn on Catholic Syrian Bank, Ulloor Branch, Thriuvananthapuram. When the cheque got dishonoured for insufficiency of funds on presentment, the first respondent issued notice demanding discharge of debt and since the appellants failed to discharge the debt, the suit for realisation of Rs. 85 lakh with 12% interest from the date of delivery of the cheque was filed.

3. The defendants 3 to 7 who are said to be the custodians of Hard Disc did not appear and contest the suit in as much as there is no relief sought against them in the suit. The appellants denied the plaintiff's case and opposed the I.A. No.108/2019 on various grounds of facts and law.

4. They said that there was neither borrowal of an amount of Rs. 85 lakh nor execution and issue of any cheque in discharge of the purported liability for the amount. They however admitted that in connection with the production of the aforesaid Film, they approached the first respondent for loan and received only a sum of Rs.19,50,000/-. Conceding the liability for repayment of the aforesaid amount, they offered to return the amount, the moment the Film started yielding income on release. According to them, they are presently, not in a position to return the amount since they are impecunious. But they hope to be able to raise the amount once the Film produced by them is allowed to be released. They denied the allegation that the first respondent ever advanced an amount of Rs. 85 lakh and it was further stated that the first respondent is not such a person who could have offered to advance such a large amount as loan. When the loan amount was being paid in a few installments, the 1st respondent demanded the appellants on 9.3.2018 to execute a signed blank cheque and also two singed blank stamp papers as assurance for repayment of the loan amount being borrowed. Later, it is alleged that, 1st respondent manipulated these documents by converting the blank cheque into a complete cheque of Rs. 85 lakh and the signed stamp papers also into a consent deed.

5. The appellants also contended that they did not have any intention to dispose of the Hard Disc/CD of the completed movie. Since there was a specific agreement between parties that the amount due to 1st respondent would be returned only after release of the Film and from the income generated there from, the 1st respondent was not entitled to obtain any order of attachment before judgment which, in effect, stalled the release of the Film itself. It was also urged that the Film was produced on an approximate budget of Rs. 3,50,00000/- and therefore itself order attaching the Hard Disc containing the Film content for securing payment of a lesser amount of debt itself is quite untenable under law. It was also contended that mandatory principles governing grant of attachment