IN the HIGH COURT of DELHI IA No. 5575/2005 in CS(OS)
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IN THE HIGH COURT OF DELHI IA No. 5575/2005 in CS(OS) No. 1010/2005 Da te of decision: September 20, 2007 M/s Jorden Electronics & Another ... Plaintiff through Mr. K. Singhal, Advocate VERSUS Bombino Video (P) Ltd. .... Defendants through Mr. Ravi Kumar Aggarwal, Advocate CORAM: HON'BLE MS. JUSTICE GITA MITTAL. 1. Whether reporters of local papers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes GITA MITTAL, J. 1. This application under Order 39 Rules 1 & 2 Code of Civil Procedure has been filed by the plaintiff in its suit for mandatory and permanent injunction, declaration, rendition of accounts, damages and delivery of infringing material urging infringement of the plaintiff's copyrights in respect of 23 Hindi films. The plaintiff has asserted exclusive rights based on purported assignments of copyright in favour of the plaintiff by producers and alleged copyright holders therein. 2. The claim of the plaintiff is vehemently disputed by the defendant who has taken a strong objection even to the 1 maintainability of the lis, as the suit has been filed without joining the producers of the films. The defendant has also set up a claim of having exclusive copyright in five of the films relying on agreements in its favour. 3. I have heard learned counsel for the parties at great length and considered the material on record. In order to adjudicate on the respective contentions and the merits of the present application, it would be useful to consider the respective claims and contentions based on the rights claimed in the individual films. 4. The suit has been filed claiming copyright in respect of the 23 Hindi films which are titled as follows :- (i) Arth, (ii) Jeete Hai Shaan Se, (iii) Mirch Masala, (iv) Sharara, (v) Kalakaar, (vi) Raani Aur Maharani, (vii) Basanti Tanke Wali, (viii) Ramwati, (ix) Phoolan Haseena Ramkali, (x) Ganga Jamna Ki Lalkar, (xi) Sara Aakash, (xii) Us Paar, (xiii) Baaton Baaton Main, (xiv) Shaukeen, (xv) Zevar, (xvi) Ek Ruka Hua Faisla, (xvii) Pasand Apni Apni, (xviii) Bhabhi, (xix) Ghar Ghar Ki Kahani, (xx) Pyar Mohabbat, (xxi) Ek Haseena Thi, (xxii) Betaj Badshah, (xxiii) Zid By way of the present application the plaintiff has sought an interim injunction prohibiting the defendant from manufacturing, selling, circulating, distributing or giving on hire etc any video cassettes, VCD's, DVD's, LCD's in relation to any and/or all of these 2 films; an order to deliver the entire infringing material in relation to any and/or all of the 23 films, and to submit a detailed account of profits illegally earned by the defendants on sale of the infringing material and in respect of the total value of the video cassettes, VCD's, DVD's, LCD's sold, circulated, distributed or given on hire etc in relation to any and/or all of the twenty three films. 5. This application had come up for hearing on 3rd of August, 2005. By an exparte order passed on that date, the court had restrained from manufacturing, selling, supplying the copies of these twenty three films. The order has continued to operate till date except the variation with regard to one film. 6. I find that the defendant is claiming subsisting and exclusive video rights in respect of only five films which are titled Arth, Jeete Hain Shaan Se, Sharara, Kalakaar and Ek Haseena Thi. The defendant is not claiming any rights in respect of the remaining eighteen films. It has also been stated that the defendant has not conducted any business in respect of these eighteen films. Consequently so far as the remaining eighteen films are concerned, the plaintiff has no cause of action against the defendant and the application and suit in respect thereof. With regard to the five films in which the defendant is claiming rights, Mr. Ravi Aggarwal, learned counsel for the defendant has urged that the plaintiff has no rights therein and for this reason the application merits dismissal. 3 7. For reasons of convenience, the respective claims of the parties are considered film wise hereafter : Title of Film : Arth 8. The defendant has relied on an agreement dated 1st January, 2000 which is also executed by M/s Anu Arts as the exclusive right holder of the cinematographic film Arth and assigns exclusive rights in the film in favour of the defendant for a period up to 31st December , 2007. The agreement in favour of the defendant is signed by the producer Kuljit Pal who has been reflected as also the proprietors/partners of M/s Anu Arts in the agreement and the schedule annexed thereto. 9. On the other hand the agreement dated 16th September, 2004 relied upon by the plaintiff has not been signed by Mr. Kuljit Pal nor does the agreement indicate the particulars or the authority of the person who has signed the agreement in favour of the plaintiff. Undoubtedly, the defendant had the prior agreement in respect of the film Arth with its producer. There is nothing to evidence the particulars of the producer of this film from the agreement dated 16th September, 2004. The plaintiff has relied on this agreement which has been purportedly executed in its favour by M/s Anu Arts whereby it has assigned all rights in this film in favour of the plaintiff for a period of three years which expires on 30th September, 2007. 10. Perusal of the agreement relied upon by the plaintiff shows that 4 this agreement mentions the assignment of rights on 1st January, 2000 in favour of the defendant and adverts to a termination thereof by the assignor on the ground that the defendant had made false representation. The assertion in this behalf is vague and is not supported by even a date of termination being mentioned let alone any communication of such termination to the defendant. Inasmuch as the defendant has repudiated any termination of the agreement with it, prima facie, it is not possible to hold that the agreement dated 1st January, 2000 was ever terminated. There is also substance in the defendant's contentions that so far as the agreement dated 1st January, 2000 relied upon by the plaintiff is concerned, there is nothing to support the contention that the same has been executed by or on behalf of the producer of the film, who was the only person who would have the right to assign copyright. 11. The plaintiff has placed before this court copies of letters dated 2nd April, 2003, 23rd September, 2003 and 1st September, 2004 purportedly addressed by M/s Anu Arts to the defendant. By the communication dated 2nd April, 2003, Mr. Kuljit Pal for Anu Arts has purportedly terminated the agreement dated 3rd August, 2003 and 1st January, 2000 in respect of the film Arth which were assigned to the defendant. The other two communications were in furtherance of this termination. The defendant has disputed any such termination and these letters which were filed during the course of 5 arguments. 12. Be that as it may, the plaintiff has not been able to support that the agreement dated 16th September, 2004 was executed and the rights assigned in its favour by any authorised person on behalf of the producer. It is well settled that in order to be entitled to an injunction, the plaintiff has to establish a prima facie legal right to the same. In the absence of primafacie establishing that the agreement dated 16th September, 2004 in its favour had been executed by any person on behalf of the producer, the plaintiff would not be entitled to any injunction against the defendant even if the agreement in favour of the defendant stood cancelled. 13. The defendant has relied on a criminal complaint dated 25th April, 2005 lodged by it with the senior inspector of police of the police station Santa Cruz. In this complaint, the defendant has stated that "there is ample apprehension that Mr. Kuljit Pal might have assigned the rights of the film Arth in favour of M/s Jorden Electronics on the basis of the cancellation letter dated 20th December, 1999 by concealing and hiding the next agreement dated 1st January, 2000 which needs the thorough investigation." The plaintiff has asserted that in this complaint, the defendant admits the termination of the agreement in favour of the plaintiff by the producer. In my view, this submission is incorrect. On the other hand, this complaint only lends credence to the defendant's 6 contention that the agreement dated 1st January, 2000 with it was not terminated. This complaint corroborates the defendant's contention that no termination letter in respect of the agreement dated 1st January, 2000 was issued to it. Further more as noticed above, there is nothing to indicate that the agreement dated 16th September, 2004 relied upon by the plaintiff has been executed by or on behalf of the producer Mr. Kuljit Pal which could create any rights in the film in favour of the plaintiff. 14. Title of film : Jeete Hai Shaan Se From the documents placed by the parties before this court, it would appear that Mr. P. Subba Rao, proprietor of M/s PSR Pictures was the producer of the film Jeete Hai Shaan Se and hence the copyright holder. M/s PSR Pictures entered into a deed of assignment of World Negative Rights dated 18th May, 2000 whereby it assigned all rights in the film to M/s Hansa Pictures Pvt. Ltd. with effect from 30th July, 2016 in respect of India Video and Cable TV.