37-ial-28299-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 28299 OF 2021
IN
COMIP SUIT (ST) NO. 28298 OF 2021
Phonographic Performance Ltd. ...Applicant
Versus
The Royal Fusion Cafe and Lounge and Others ...Respondents
WITH
INTERIM APPLICATION (L) NO. 28303 OF 2021
IN
COMIP SUIT (ST) NO. 28300 OF 2021
AND
INTERIM APPLICATION (L) NO. 28305 OF 2021
IN
COMIP SUIT (ST) NO. 28302 OF 2021
AND
INTERIM APPLICATION (L) NO. 28307 OF 2021
IN
COMIP SUIT (ST) NO. 28304 OF 2021
AND
INTERIM APPLICATION (L) NO. 28309 OF 2021
IN
COMIP SUIT (ST) NO. 28301 OF 2021
AND
INTERIM APPLICATION (L) NO. 28310 OF 2021
IN
COMIP SUIT (ST) NO. 28306 OF 2021
AND
INTERIM APPLICATION (L) NO. 28311 OF 2021
IN
COMIP SUIT (ST) NO. 28308 OF 2021
AND
INTERIM APPLICATION (L) NO. 28316 OF 2021
IN
COMIP SUIT (ST) NO. 28312 OF 2021
AND
INTERIM APPLICATION (L) NO. 28319 OF 2021
IN
COMIP SUIT (ST) NO. 28313 OF 2021
Vishal Parekar, P.A. ...1
37-ial-28299-2021.doc
AND
INTERIM APPLICATION (L) NO. 28321 OF 2021
IN
COMIP SUIT (ST) NO. 28318 OF 2021
AND
INTERIM APPLICATION (L) NO. 28322 OF 2021
IN
COMIP SUIT (ST) NO. 28320 OF 2021
ALONG WITH
INTERIM APPLICATION (L) NO. 29558 OF 2021
IN
COMIP SUIT (ST) NO. 29555 OF 2021
AND
INTERIM APPLICATION (L) NO. 29559 OF 2021
IN
COMIP SUIT (ST) NO. 29554 OF 2021
AND
INTERIM APPLICATION (L) NO. 29568 OF 2021
IN
COMIP SUIT (ST) NO. 29551 OF 2021
AND
INTERIM APPLICATION (L) NO. 29570 OF 2021
IN
COMIP SUIT (ST) NO. 29564 OF 2021
AND
INTERIM APPLICATION (L) NO. 29572 OF 2021
IN
COMIP SUIT (ST) NO. 29566 OF 2021
AND
INTERIM APPLICATION (L) NO. 29573 OF 2021
IN
COMIP SUIT (ST) NO. 29571 OF 2021
AND
INTERIM APPLICATION (L) NO. 29588 OF 2021
IN
COMIP SUIT (ST) NO. 29583 OF 2021
AND
INTERIM APPLICATION (L) NO. 29592 OF 2021
IN
COMIP SUIT (ST) NO. 29587 OF 2021
AND
INTERIM APPLICATION (L) NO. 29597 OF 2021
IN
COMIP SUIT (ST) NO. 29585 OF 2021
Vishal Parekar, P.A. ...2
37-ial-28299-2021.doc
AND
INTERIM APPLICATION (L) NO. 29609 OF 2021
IN
COMIP SUIT (ST) NO. 29606 OF 2021
AND
INTERIM APPLICATION (L) NO. 29689 OF 2021
IN
COMIP SUIT (ST) NO. 29682 OF 2021
AND
INTERIM APPLICATION (L) NO. 29690 OF 2021
IN
COMIP SUIT (ST) NO. 29683 OF 2021
AND
INTERIM APPLICATION (L) NO. 29695 OF 2021
IN
COMIP SUIT (ST) NO. 29686 OF 2021
Mr. Amogh Singh, a/w Ms. Lilaan Daas, Mr. Hero Ramchandani, Mr.
Asmant Nimbalkar, i/b D. P. Singh, for the Plaintiff/Applicant.
Mr. Kevic Setalvad, Senior Advocate, a/w Mr. Amogh Singh, a/w Ms.
Lilaan Daas, Mr. Hero Ramchandani, Mr. Asmant Nimbalkar, i/b D.
P. Singh, for the Plaintiff/Applicant in IAL/29606/2021.
Mr. Nikhil Sakhardande, Senior Advocate, a/w Mr. Amogh Singh, a/
w. Ms. Lilaan Daas, Mr. Hero Ramchandani, Mr. Asmant Nimbalkar,
i/b D. P. Singh, for the Plaintiff/ Applicant in IAL/28299/2021.
Mr. Virendra Tulzapurkar, Senior Advocate a/w. Mr. Ramesh Soni,
a/w Ms. Sarrah Khambati, Anuj Jain, i/b.Wadia Ghandy & Co., for
Defendant nos.7, 14, 19, 20, 29, 38, 39 and 43 in IAL/29559/2021.
Mr. Virendra Tulzapurkar, Senior Advocate a/w. Mr. Ramesh Soni,
a/w Ms. Sarrah Khambati, Anuj Jain, i/b Wadia Ghandy & Co., for
Defendant nos.2, 3, 12 and 19 in IAL/29695/2021.
Mr. Rajesh Gehani, a/w Mahendra Agvekar, Shraddha Chavan, for
Respondent no.43 in IAL/29559/2021.
Mr. Jitendra P. Supekar, for Defendant no.5 in IAL/29597/2021 and
IAL/29585/2021.
Mr. Hiren Kamod a/w. Mr. Samsher Garud, Mr. Prem Khullar, Mr.
Anis Patel, Mr. Priyank Daga and Mr. Gaurav Suralkar i/b. Jayakar
Vishal Parekar, P.A. ...3
37-ial-28299-2021.doc
and Partners, for Defendant Nos. 3 and 4 in IAL/29570/2021.
Mr. Astad Randeria a/w. Ms. Priyanka Khimani, Ms. Chaitrika Patki
and Ms. Ruhani Sanghavi i/b. Khumani & Associates, for Defendant
Nos. 1 to 31 in IAL No.29588/ 2021.
Mr. Rohan Savant a/w. Ms. Poonam Teddu, Ms. Kaivalya Shetye i/b.
M.A. Mahadgut, for Defendant Nos. 32 and 35 in IAL No. 29559/
2021.
CORAM : N. J. JAMADAR, J.
DATE : DECEMBER 22, 2021 P.C.: . Heard the learned counsel for the parties.
2. In this group of suits, essentially the question of legal competence of the plaintiff to grant licenses crops up for consideration, in the context of the provisions contained in the Copyright Act, 1959, especially Section 33 thereof.
3. Having regard to the nature of the issue raised and the fact that number of defendants were sought to be injuncted, this Court thought it appropriate to issue a short notice to the defendants. In the light of number of defendants who were to be served and the short time at the disposal of the plaintiff, the Court reckons that some of the defendants might not have yet been served even by way of private service.
Vishal Parekar, P.A. ...4 37-ial-28299-2021.doc
4. Few of the defendants have appeared before the Court and resisted the prayer for ad-interim relief.
5. On behalf of the defendants preliminary objections were raised on the aspects of tenability of the suit, suffciently of avermens in the plaint which would warrant consideration of the prayer for ad-interim relief and the circumstances in which the suits have been instituted, few days before the events which usually take place at the end of the month of December.
6. All these contentions raised on behalf of the defendants can be considered when the interim applications are taken up for hearing.
7. In the backdrop of a number of orders passed by this Court in the preceding fve to six years as well as the judgments passed by the Delhi High Court in the case of Novex Communication Pvt. Ltd. vs. Lemon Tree Hotels Ltd. and Anr. 1 and the Madras High Court in the case of M/s. Novex Communications Pvt. Ltd. vs. DXC Technology Pvt. Ltd. in Civil Suit Nos. 407 and 413 of 2020 on 8 th December, 2021, one of the issues which would warrant consideration is whether the plaintiff is entitled to grant license in the 'sound recording' in which the plaintiff claims Copyright, sans 1 2019 SCC OnLine Del 6568 Vishal Parekar, P.A. ...5 37-ial-28299-2021.doc registration envisaged by Section 33 of the Copyright Act, 1959.
8. Hence, issue notice to the unserved defendants in each of the suits returnable 27th January, 2022.
9. The plaintiff is at liberty to serve the unserved defendants by private service and fle affdavit of service.
10. The defendants who have entered appearances and fled limited affdavit today and those who have yet not fled affdavit shall fle the affdavit in reply by 14th January, 2022.
11. The plaintiff shall be at liberty to fle an affdavit in rejoinder by 21st January, 2022.
12. The interim applications be listed for hearing on 27 th January, 2022.
13. In the meanwhile, to protect the interest of the parties, it would be expedient to direct that:
Without prejudice to the rights and contentions of the parties,
(i) The defendants shall maintain audio recordings of the events organized in relation to Christmas and New Year celebrations, Vishal Parekar, P.A. ...6 37-ial-28299-2021.doc during the period 24th December, 2021 to 5th January, 2022 wherein the sound recordings in which the plaintiff claims copyrights were played or communicated to the public and maintain the record of the number of persons for whom the event was organized.
(ii) The defendants shall so preserve the audio recording that they should be in a position to produce the same before this Court as and when directed by this Court.
(iii) Any of the defendants whosoever desire to obtain the license from the plaintiff shall be at liberty to do so, again without prejudice to their rights and contentions, and the fact that the license is obtained shall not be construed as an admission of the rights of the plaintiff.
14. List on 27th January, 2022.
Digitally All concerned to act on an authenticated copy of this order. signed by VISHAL VISHAL SUBHASH SUBHASH PAREKAR PAREKAR Date:
2021.12.23 18:32:52 +0530 (N. J. JAMADAR, J.) Vishal Parekar, P.A. ...7