1 ao.523-2013
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 523 OF 2013
WITH
CIVIL APPLICATION NO. 637 OF 2013
M/s Ashwamedh Production
A registered partnership firm
Through its partner,
Mr. Nilesh Dattaram Sawant,
Having Address at: Shop No.6,,
Mulberry, Opp. Kaushalya Hospital
Ganeshwadi, Panchpakahadi,
Thane (W). ..Appellant.
Vs.
1.Shri Rajesh Shivram Kolambkar
C/o Arun Apte,
Apte Wada,
Ganesh Mandir Road,
Dombivali East, District Thane
2.Shraddha Theatre,
C/o Kishore B. Chaugule,
506, B Shiv Tower,
Singh Nagar, Khopat,
Thane West.
3.Kishore B. Chaugule,
506, B Shiv Tower,
Singh Nagar, Khopat,
Thane West. ..Respondents.
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Mr. Sandesh D. Patil h/f Miss. Tanu Khattri for Appellant.
Mr. Himanshu Dasondi i/b H D & Associates, for Respondents.
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2 ao.523-2013
CORAM : ANOOP V. MOHTA, J.
DATE : OCTOBER 14, 2013.
ORAL JUDGMENT:
1 Appellant-original Plaintiff being aggrieved by order dated 13 May
2013, passed by the learned District Judge, Thane whereby his Application for interim injunction is rejected by holding that there is no prima facie case; and no balance of convenience in his favour. The Defendant would suffer irreparable loss in case relief is granted.
2 Plaintiff-Appellant claimed that Respondent No.1 has assigned rights of drama and its script "Yeducation" for a consideration of Rs.25,000/- and accordingly, received the consideration amount by a cheque dated 14.2.2012.
The agreement was executed and notorised on 27.11.2012. Respondent Nos.1 and 3 not denying the execution of page-1 and page-3 of the agreement. The bone of contention is page-2 and clauses mentioned therein. The issue is also about its validity and effect. Respondent No.1 averred that he never appeared before any Notary for notorization.
3 The missing signs on page and its contents, at this stage, cannot be overlooked at the instance of Respondent No.1/Defendant No.1-writer of the script. This is specifically when in a reply the case is not in dispute that 2/ 7 ::: Downloaded on - 27/11/2013 20:26:11 ::: 3 ao.523-2013 Defendant No.1-Respondent No.1 received from time to time the consideration to the extent of 38 shows @ Rs.500/- per show. There is nothing on record to show that any objection raised in writing by Respondent No.1 not to conduct and/or hold drama and/or not to proceed with other shows. For the first time by hand-written communication dated 29.3.2013, an intention was expressed, as he was not earning any amount for 90 days and as there was no drama staged by the Appellant-Plaintiff and; therefore, intimated about the permission to a new Director to use the script.
4 The agreement not counter signed by the Appellant is also another objection. The effect of these documents and its validity, considering the conduct of the parties, just cannot be overlooked at this prima facie stage. The requirement of the Copyright Act, 1957, for such mode of assignment, needs to be tested during the trial. The lacuna and/or a grey area in the agreement, apart from dispute with regard to page-2, requires evidence to support either of the case.
5 The notorization and/or registration of such document is again a matter, just cannot be concluded finally in favour of either of the parties. The effect of such vague and unclear agreement even if any, cannot be the basis to deny the claim and the rights of Appellant-Plaintiff. Admittedly, 38 shows of the drama based upon the script had been performed which according to me goes to 3/ 7 ::: Downloaded on - 27/11/2013 20:26:11 ::: 4 ao.523-2013 the root of the matter, so also that no written objection raised at the relevant time by the concerned.
6 The learned counsel appearing for the Respondent-Writer has strongly relied upon two judgments of this Court revolving around the effect of illegal notorization of the document and its use in the Court of law. The judgments are: (1) H.K. Taneja & Ors. Vs. Bipin Ganatra And Keshavrao J.
Bhosle dated 17 December 2008 and (2) J.G. Hegde Vs. R.D. Shukla 1. The issue of notorization even if any need to be considered only after resolving thevmystery revolving around two missing pages, at the earliest. That cannot be solved at this interim stage in such a fashion. The contents of last sentence of page-1 is not matching with the first sentence of the last page of the agreement.
The reason behind signing such agreement, at least pages-1 and 3, is again a matter of trial.
7 All the aspects of forgery and/or fabrication just cannot be decided at this stage of the proceeding. The learned Trial Judge admittedly, granted ad-
interim relief on 17.4.2013 thereby restrained Defendants, its agent from conducting shows using script till 20.4.2013. But after hearing both the parties, rejected injunction application. However, this Court by order dated 17.5.2013 directed that the ad-interim which was in force during the pendency of Exhibit-5 1 AIR 2004 Bom 55, 2004(2) BomCR 106,2004(1) Mh.Lj. 973 4/ 7 ::: Downloaded on - 27/11/2013 20:26:11 ::: 5 ao.523-2013 before the Lower Court should remain in operation. That has been in force till this date.
8 The "dramatic work" as contemplated under the Copyright Act, is distinguishable from "Literary work". We are not concerned with the exclusive Copyright claim but the claim of written permission to use the drama script. The law of injunction applies here also, till the decision of the suit. The remedy at this stage is only to invoke the equitable principles of injunction. The copyright is a right akin to right to property.
9 When enquired about the settlement and/or the compromise, the learned Counsel for both the parties, on instructions, stated that is not possibly as Defendant No.1 now wants to produce the drama also as a Director. The actors which he trained may or may not be ready to work for the Appellant and/or its Company. The position is that in view of the injunction order passed by the Trial Court and this Court, no one is in a position to staged the show by using the script. This, in my view, is of no use to anyone.
10 The statement is also made by the learned counsel for the Appellant that they may be permitted to use the script and they will maintain the account.
Same offer is also made by the learned Counsel for the Appellant. I see there is no reason to injunct the use of script by the concerned party. The script-writer 5/ 7 ::: Downloaded on - 27/11/2013 20:26:11 ::: 6 ao.523-2013 should not suffer further. The whole case is based upon the written agreement and the conduct. The validity of the same is in issue. Therefore, in my view, the balance of convenience and equity lies in favour of permitting the Appellant to use the script pending decision of the issue. The order passed by the Trial Court dated 17.4.2013 which has been in force till this date, needs to be maintained till the disposal of the Suit.
11 The aspect of irreparable loss and injury, in view of above facts and circumstances at this stage also goes in favour of the Appellant. However, it is made clear that Appellant-Plaintiff to maintain the account if shows are conducted by using the script in question. The reasonable compensation even if any, will be considered at appropriate stage of the proceeding. The offer to use the script by the Defendants, in view of above agreement, at this stage is not acceptable. This means we have to overlook the agreement itself, apart from the conduct, by which the concerned Respondents permitted the Appellant to use the script for, as many as, 38 shows.
12 The learned Counsel for the Defendants, on instructions, could not give any figure so that amount should be directed to be paid by the Appellant-
Plaintiff whenever he/they uses the script in question. Therefore, at this stage, I am inclined to observe that the Appellant-Plaintiff to maintain the account till appropriate order passed by the Court on application if filed for such 6/ 7 ::: Downloaded on - 27/11/2013 20:26:11 ::: 7 ao.523-2013 compensation. The liberty is granted accordingly. The claim of damages and/or the royalty, if any, also required to be considered in accordance with law.
13 In view of above and in the facts and circumstances of the case, the impugned order dated 13.5.2013 is quashed and set aside. Ad-interim order passed on 17.4.2013 and continued by this Court on 17.5.2013 to continue till the disposal of the Suit.
14Considering the controversy so involved and as matter is pertaining to use of the script (dramatic work) which falls within the ambit of Copyright Act, I am inclined to direct the Trial Court to dispose of the Suit, preferably within six months. The parties to co-operate accordingly. It is made clear that the above observations are only to decide the Appeal. All points are kept open.
15 Appeal from Order as well as Civil Application are allowed accordingly.
(ANOOP V. MOHTA, J.) 7/ 7 ::: Downloaded on - 27/11/2013 20:26:11 :::