..* HIGH COURT OF DELHI : NEW DELHI
+ IA No.2196/2008 & IA No.3224/2008 in CS (OS) No.324/2008
Moserbaer India Ltd. ......Plaintiff
Through: Mr. Vineet Malhotra, Adv. with Mr. K.
Singhal, and Mr. Sanjay Kumar, Advs.
Versus
Modern Cinema .....Defendant
Through: Mr. Sanjay Jain, Sr. Adv. with
Mr. R. Anand Padmanabhan and
Ms. Ruchi Jain, Advs.
Judgment decided on : February 18, 2010
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. This order shall dispose of the application being I.A. No.2196/2008 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) filed by the plaintiff to confirm the ad interim order dated 19 th February, 2008 and I.A. No.3224/2008 under Order XXXIX Rule 4 of the CPC filed by the defendant for vacation of the above-mentioned interim order.
2. The plaintiff has filed the present suit for permanent injunction restraining infringement of copyright, rendition of account, passing off, delivery up, damages etc. against the defendant. CS (OS) No.324/2008 Page 1 of 23
3. The plaintiff is carrying on business, inter alia, of manufacturing and acquiring video copyrights in respect of cinematographic films. It is the plaintiff‟s case that it entered into five separate agreements pertaining to assignment of copyrights with the film distributors/valid copyright holders of various cinematographic films, who had obtained the same from the producers thereof for the purpose of acquiring video copyrights in them. The details of the five agreements are as follows; the first agreement with M/s. West Top Investment India (P) Ltd. dated 28th July, 2006 for 55 movies; the second agreement with M/s. Sree Devi Video Corporation dated 29th July, 2006 for 9 movies; the third agreement with M/s. AN Enterprises dated 4th July, 2006 for 4 movies; the fourth agreement with M/s. MK Noor Mohamad dated 1st July, 2006 for 1 movie and the fifth agreement with M/s. New Music dated 18th July, 2007 for 1 movie. The plaintiff has, in this way, acquired valuable and exclusive video rights in respect of 70 Telugu films by virtue of various agreements and assignment deeds in its favour. The names of the 70 Telugu films are given below :
1. Panakkara Kudumbam
2. Panam Padaithavan
3. Paasam
4. Periya Idathu Penn
5. Uravai Katha Kili
6. Sumangali
7. Aalayamani
8. Arunagiri Nadhar
9. Devi Dharisanam
10. Muthal Vasantham
11. Moondru Mudichu
12. Ninaithaale Innikkum
13. Padikkadha Pannaiyaar
14. Raktha Thilagam
15. Thaayin Madiyil CS (OS) No.324/2008 Page 2 of 23
16. Athisaya Piravigal
17. Deivam
18. En Bommukutti Ammavukku
19. En Jeevan Paduthu
20. Goondukili
21. Kaalamellam Kadhal Vaazhga
22. Kaathavaraayan
23. Kadal Meengal
24. Kanni Paruvathilea
25. Kozhi Koovudhu
26. Kungumam
27. Maha Kavi Kaalidas
28. Naan
29. Needhikku Thalai Vanagu
30. Needhikkuppin Paasam
31. Nenjil Oru Ragam
32. Nizhal Nijamakirathu
33. Paalum Pazhamum
34. Paatum Pazhamum
35. Padithal Mattum Podhuma
36. Parakkum Paavai
37. Pattanathi Bootham
38. Pazhani
39. Poovizhi Vaasalilea
40. Raajadhi Raaja
41. Raasu Kutty
42. Raman Ethanai Ramanadi
43. Rosappoo Ravikkai Kaari
44. Saraswathi Sabatham
45. Shanthi
46. Singaara Vealan
47. Vidinja Kalanam
48. Yellam Enbamayam
49. Rail Payananalil
50. Kanavea Kalaiyathe
51. Kanniththai
52. Maanavan
53. Malaiyur Mamootiyan
54. Muggaraasi
55. Navarathinam
56. Paanai Pidithaval Bakyasaali
57. Padikkadha Methai
58. Panama Paasama
59. Pattikaada pattanama
60. Periyanna
61. Ranga
62. Thaai Sollai Thattadhea
63. Thaiku Thalaimagan
64. Thanippiravi CS (OS) No.324/2008 Page 3 of 23
65. Thiruvarul
66. Thozhilali
67. Thunaivan
68. Vandicholai Chinna Rasu
69. Vellikkizhamai Viradham
70. Vivasayee.
4. As per the terms of the aforesaid assignment deeds, the above-mentioned companies being the copyright holders of the said films assigned video copyrights thereof in favour of the plaintiff for transferring, processing, duplicating, copying, taping etc. of the videos in any format including VCDs and DVDs of the said films.
5. The cause of action in the present case arose when the plaintiff came to know that the defendant had wrongly, illegally and without any license from the plaintiff published the above mentioned 70 cinematographic films and had illegally and unauthorizedly recorded the aforesaid cinematographic films without any license or consent from the plaintiff.
6. According to the plaintiff, at no point of time has it granted any license or assigned any right of any nature to the defendant in the aforesaid 70 films. Thus, the defendant has no right, title or interest to manufacture, circulate or sell any such VCDs or DVDs of the aforementioned 70 films. The defendant, by making the said VCDs/DVDs and publishing the aforesaid films without a license, consent and/or permission of the plaintiff, has infringed the copyright of the plaintiff in the aforesaid 70 cinematographic films.
7. It is submitted by the plaintiff that the defendant in defiance of the statutory declaration encompassed in the provisions CS (OS) No.324/2008 Page 4 of 23 of Section 52(a) of the Copyright Act, 1957 has also wrongly and illegally declared and is representing to the people that it is the owner of the copyrights by printing, copying, publishing and marketing the 70 films under the name „Modern Cinema‟ at No.28, Mela Vadampakkai Street First Floor, Madurai, Chennai. The illegal copies of VCDs/DVDs of the aforesaid films constitute infringement under Section 2(m) of the Copyright Act, 1957. Hence the present suit was filed.
8. The learned counsel for the defendant has argued that the plaintiff claimed to have copyright in 70 motion pictures by virtue of five agreements, details of which have been mentioned in para 3. In the same vein, it was imperative for the plaintiff to disclose to this Court the status of the above mentioned five entities from which the plaintiff allegedly acquired copyright, presumably by assignment, within the meaning of the Copyright Act. However, the plaintiff refrained from disclosing the status of the above five entities for the reason that none of them are the original producers of the motion pictures in question and once this fact was disclosed, this court would certainly have scrutinized the root of the acquisition of copyright by the above five entities in order to ascertain as to whether they had any valid copyright vested with them, so as to be able to assign the same to the plaintiff.
9. It was further argued that the plaintiff deliberately concealed the fact in the plaint and in the application for interim injunction that out of the above 70 motion pictures, 56 pictures as per the Assignors of the plaintiff are subject matter of dispute between them and the defendant herein in another suit. Even the assignors do not recognize their titles CS (OS) No.324/2008 Page 5 of 23 with respect to these movies.
10. It was also not disclosed by the plaintiff that it has an on going business relationship with the defendant, whereby the defendant uses the video/compact discs produced/marketed by the plaintiff and also engages the services of the plaintiff for recording motion pictures forwarded by the defendant on such video/compact discs. In fact 60% of the above work, which is generated at the establishment of the defendant, was being handled by the plaintiff. Therefore, plaintiff was well aware of the nature of the copyright that exists in respect of the motion pictures in Tamil Nadu. It was also aware of the fact that the defendant is a reputed business establishment and deals only in duly licensed motion pictures and does not get involved in any piracy, which business practice has been established and maintained by the defendant for 25 years. The fact that the defendant uses the plaintiff‟s services for preparation of the CDs and uses only the original CDs is indicative of the fact that the defendant is not involved in any unscrupulous business practices.
11. It is averred by the defendant that the plaintiff filed the present suit as it was interested in becoming the sole vendor for the above work qua the defendant, however, the defendant had been using other CD manufacturers as well for about 40% of its work, which apparently caused the plaintiff to file the present frivolous and misconceived suit.
12. The malpractices of the plaintiff are evident from the fact that as per clause (c) ii of the agreements with M/s. West Top Investment CS (OS) No.324/2008 Page 6 of 23 India (P) Ltd. dated 28th July, 2006 and the second with M/s. Sree Devi Video Corporation dated 29th July, 2006, it was mandatory on behalf of plaintiff to publish advertisements in the press inviting objections from the public at large against its proposed acquisition of rights in respect of all movies including the movies which are the subject matter of the present suit.
13. On coming across the advertisement, the defendant raised an objection through its counsel by its notice dated 11 th September, 2006. The said notice was acknowledged and replied to by the five assignors. The plaintiff was thus well aware about the ownership of the defendant in respect of these movies as set out in the agreement itself which recognizes the right of the defendant. It is submitted that the plaintiff has not disclosed the fact that the defendant is not a stranger to the plaintiff. The plaintiff has deliberately concealed the fact of its existing relationship with the defendant.
14. The plaintiff has also failed to disclose as to when, according to its version, it came to know about the alleged infringing activities of the defendant in the cause of action paragraph. It is contended that the plaintiff filled up the date in blank space, by putting up the date of 3 rd February, 2008 as the first date of accrual of the cause of action, so as to create in impression that the cause of action occurred a few days prior to the filing of the suit on 14th February, 2008.
15. Non-disclosure of the original copyright holders was a deliberate act on behalf of the plaintiff as under Section 61 of the Copyright Act it is essential to make the owner of the copyright a party CS (OS) No.324/2008 Page 7 of 23 to the proceedings while invoking civil remedies under Chapter XII of the said Act.
16. It is contended that the plaintiff has deliberately quoted astronomically high figures as the consideration for allegedly acquiring the copyrights in respect of the 70 motion pictures in question to claim a high amount of damages. The plaintiff, who itself provides CDs to the defendant and also undertakes recording for it is well aware of the volume of business and is also aware that in the present situation, since the CD manufactures themselves have started venturing into the business of acquiring the copyrights in motion pictures, as is the case put up by the plaintiff, the defendant has become an eyesore for the plaintiff and the present suit has been filed by the plaintiff only to hound the defendant out of business.
17. From its list of 70 movies, the alleged license in respect of 12 films had already expired admittedly before filing of the suit. Even in respect of other films, it is alleged by the defendant that it had acquired the VCD/DVD rights from the producers directly and the expiry license produced by the plaintiff relates to some third parties. It is further submitted that the rights of these 12 movies have been acquired once again by the plaintiff from another third party during the subsistence of its earlier copyright agreement. The third party from whom the plaintiff has acquired its right has been declared bankrupt by the High Court of Madras in 1996.
18. It is the defendant‟s submission that M/s. West Top Investment (P) Ltd., which has assigned the copyright in 55 of the 70 CS (OS) No.324/2008 Page 8 of 23 disputed films to the plaintiff, filed a suit being Suit no. 210/2004 against various persons including the defendant herein before the High Court of Madras with regard to the rights in 80 films (including some of the disputed titles in the present suit). By its order dated 2nd April, 2004, the Madras High Court refused to grant injunction to M/s. West Top Investment (P) Ltd. with the observation that there was no prima facie case to indicate that the said company had any valid copyright in the said films and that the company had valid rights in only 35 M.M. and 16 M.M. films under the agreement dated 22 nd September, 1979 and this agreement along with the agreement dated 7 th February, 2000 are the major agreements relied upon by the plaintiff.
19. The defendant has emphasized that the plaintiff has not acquired its so called rights from the original producers. It is submitted that in almost all motion pictures which are the subject matter of the present suit, the defendant has obtained exclusive copyright for VCDs/DVDs directly from the producers much before the plaintiff and in some cases the defendant has acquired rights from the parties (distributors) who have acquired video rights from the original producers. The plaintiff thus could not have acquired any right of whatsoever nature in respect of the 41 motion pictures, since all rights in respect thereof already vest with the defendant.
20. In reply to the application for setting aside of the interim injunction, learned counsel for the plaintiff submitted that the five entities from which the plaintiff acquired copyright are copyright holders within the meaning of the Copyright Act, 1957, having validly CS (OS) No.324/2008 Page 9 of 23 acquired the rights in respect of the said 70 movies. The plaintiff has submitted that it has filed not only its agreements with the five companies but the entire chain of agreements showing valid assignment of each movie to the distributors/Assignors/companies from whom the plaintiff has acquired the rights. The defendant has no right of any kind with regard to the said 70 movies with respect to which the present suit has been filed. It is submitted that by virtue of assignment, the plaintiff is the copyright holder of the said 70 films.
21. As regards the defendant‟s contention that the plaintiff wants the defendant‟s entire business with regard to manufacture of CDs and that it is enraged at the fact that 40% of the defendant‟s work is being given to other manufacturers which is why the present suit has been mala fidely filed, the plaintiff has submitted that Moserbaer India Limited is the biggest manufacturer of CDs in India and it is absurd to suggest that the plaintiff would act in the malicious manner suggested by the defendant due to 40% losses of Modern Cinema titles. Even otherwise, it is submitted by the plaintiff that the volume of business of Modern Cinema is meager.
22. It is submitted that the plaintiff in the plaint has clearly stated that it came to know of the defendant‟s infringing activities on 3 rd February, 2008 from its market sources and the said date has not been made up or fabricated.
23. It is submitted that as far as the alleged relationship of the defendant with the plaintiff is concerned, the division of the plaintiff which is engaged in replicating VCDs is a separate and distinct unit CS (OS) No.324/2008 Page 10 of 23 altogether from the unit which deals with acquiring and assignment of rights and that the said fact has no relevance in the present matter. It is submitted that the job of replication is done on the basis of the agreement, undertaking and an indemnity bond submitted by the customer who gets the replication done. It is submitted that the indemnity bond is taken for the purpose of replication and production of VCDs. The same cannot in any manner be considered as a recognition of title or copyright of the defendant.
24. It is submitted that as far as the present suit is concerned, only one title, namely „Pannai Pidithaval Bhagyasali‟ clashes with the title in the suit filed by M/s. West Top Investment India Pvt. Ltd. No other title out of 70 titles is in dispute in the said suit being Suit No.210/2004 pending before the High Court of Chennai. As for the allegations of the defendant having filed any suit against West Top Investment Pvt. Ltd. in the Civil Court at Madurai, the plaintiff is not a party to the said suit and was unaware of any such suit pending in any court. Therefore, there is no material concealment by the plaintiff. However, no injunction has been granted in favour of the defendant in the said suit which only goes to show that the defendant failed to prove prima facie case in its favour.
25. It is submitted that the fact that the plaintiff has acquired copyright in respect of 70 movies from the valid copyright holders is enough. It will not make any difference in the rights of the plaintiff if the same are acquired from the original producers or from a person who has acquired rights from such producers in respect of the said films in CS (OS) No.324/2008 Page 11 of 23 terms of the provisions of the Copyright Act. It is submitted that the plaintiff has acquired valid and subsisting video rights in respect of the said movies and the plaintiff is marketing the said movies.
26. Two applications filed by the parties were partly heard on 9th April, 2009 and 23rd April, 2009. Thereafter, on 26th May, 2009 the matter was adjourned at the request of the plaintiff‟s counsel for 27th May, 2009. Since no one appeared on 27th May, 2009, the orders were reserved by this Court. Thereafter, the plaintiff filed the application being I.A. No.9167/2009 for completion of the submission on behalf of the plaintiff and the notice of the application was issued for 6th August, 2009. On 6th August, 2009 the learned counsel for the plaintiff did not address the arguments rather undertook to file the written submission. The written submission was filed subsequently by the learned counsel for the plaintiff.
27. I have perused the contentions of both the parties. Summons were issued in the present suit on 19 th February, 2008 and an ad interim injunction was passed in favour of the plaintiff. On the same date, a Local Commissioner was also appointed to visit the premises of the defendant and to search, seize and take into custody any infringing material with regard to the above said 70 cinematographic films as well as the masters, inlay cards and music cassettes, if any, pertaining to the aforesaid films.
28. The Local Commissioner filed his report on 22nd April, 2008 wherein he stated that he had searched the premises and found various VCDs/DVDs and box packs in the premises. However, no inlay cards, CS (OS) No.324/2008 Page 12 of 23 master cards or other material were found by him. The inventory of the offending material has been filed by the Local Commissioner with the report.
29. The operative portion of the interim order dated 19 th February, 2008 reads as under :
"Having perused the documents placed on the record as also the plaint, the Court is of the opinion that the plaintiff has prima facie made out a case for being granted an ex-parte ad interim injunction in its favour. Accordingly, the defendant and/or its officers, distributors, agents, assigns are restrained from manufacturing, selling, circulating or distributing in any manner the video cassettes, VCDs, DVDs and LCDs in respect of the 70 Telugu films as detailed in prayer clause of the application, till further orders."
30. I have gone through the documents filed by the parties. The plaintiff has filed the entire chain of agreements with respect to almost each of the 70 films, elucidating how the rights in each film came to be vested in it. Subsequent to the perusal of the plaintiff‟s own documents, it appears that there are certain films like Deivam, Goondukili, Parakkum Paavai, Pattanathil Bootham, Pazhani, Yellam Enbamayam, Mugaraasi, Raasu Kutty and Sumangali with regard to which the plaintiff‟s claim is suspect due to various reasons being, inter alia, that certain agreements in the chain of agreements are not filed, certain documents are unclear and illegible etc.
31. In its documents, the defendant has filed copies of plaints in Suit No.434/2004 and Suit No.210/2004, both of which are pending in the District Court at Madurai and the High Court of Madras respectively and which include some of the films which are the subject matter of the CS (OS) No.324/2008 Page 13 of 23 present suit. The first of the above-mentioned two suits has as its subject matter 46 movies and the second suit is with regard to 80 movies. The defendant has filed lists of the titles which are disputed and are part of the subject matter of pending suits in other courts. Even in the written statement, the defendant has stated that out of the 70 movies which are the subject matter of the present suit, 18 are titles which are the subject matter of the above-mentioned two suits at Madurai and Madras between the Assignor (vis-à-vis the plaintiff) of the film titles i.e. West Top Investment (I) Pvt. Ltd. and one of the partners of the defendant and between the said Assignor and four parties including the defendant herein. A perusal of the respective plaints of Suit Nos.434/2004 and 210/2004 show that indeed, some of the 70 films are disputed in those cases.
32. The defendant has filed a deed of partnership resulting in the creation of the defendant company, sale invoices, an agreement between the plaintiff and a company by the name of „Digital War‟, caveat filed by the defendant in 2007 in this court with respect to 32 films, the defendant‟s objections dated 11th September, 2006 sent to the plaintiff‟s legal counsel at the time of advertisement inviting objections with regard to rights in films formerly owned by Sree Devi Video Corporation (vis-à-vis 54 films) and West Top Investment (India) Pvt. Ltd. (vis-à-vis 150 films).
33. The defendant has also filed a list of a few films with respect to which the defendant is claiming prior assignment. The defendant‟s claim is that it holds prior and better assignment in several of the 70 CS (OS) No.324/2008 Page 14 of 23 movies which constitute the subject matter of the present suit and to prove the same, various agreements have been filed by the defendant. A perusal of these agreements shows that indeed, the defendant has licenses/ agreements as regards all the 70 film titles which are subject matter of the present suit.
34. A comparative chart of the said 70 film titles with details of the date when the parties obtained the licenses of the movies as well as from whom the said licenses were obtained is shown below (where the license has been obtained directly from the Producer of the movie, the same is indicated in Bold font) :
S. Film Titles Defendant's Defendant's Plaintiff's Plaintiff's Assignor
no. licenses Assignor licenses
1. Panakkara 05.06.2002 R.R. Pictures 28.07.2006 West Top
Kudumbam Investment (I) Pvt.
Ltd.
2. Panam 05.06.2002 R.R. Pictures 28.07.2006 West Top
Padaithavan Investment (I) Pvt.
Ltd.
3. Paasam 05.06.2002 R.R. Pictures 28.07.2006 West Top
Investment (I) Pvt.
Ltd.
4. Periya Idathu 05.06.2002 R.R. Pictures 28.07.2006 West Top
Penn Investment (I) Pvt.
Ltd.
5. Uravai Katha 12.01.2004 M/s. Shobanas 18.07.2007 M/s. New Music
Killi
6. Sumangali 17.08.2000 K. Thulasiram & 01.07.2006 K.H. Noor Mohamed
I.Dinakaran
7. Aalayamani 06.03.2004 M/s. P.S. Pictures 29.07.2006 Sri Devi Video Corp.
8. Arunagiri 16.12.2005 M/s. Baba Art 29.07.2006 Sri Devi Video Corp.
Nadhar Productions
9. Devi 10.07.1999 G.D. Sankar 29.07.2006 Sri Devi Video Corp.
Dharisanam
10. Muthal 01.08.1991 Mr. P.Kalaimani 29.07.2006 Sri Devi Video Corp.
Vasantham
11. Moondru 13.07.2005 C.R. Raju 29.07.2006 Sri Devi Video Corp.
Mudichu
12. Ninaithaale 13.07.2005 C.R. Raju 29.07.2006 Sri Devi Video Corp.
Innikkum
13. Padikkadha 15.12.2005 K.S. 29.07.2006 Sri Devi Video Corp.
Pannaiyaar Gopalakrishan
14. Raktha 09.09.1999 G.D. Sankar 29.07.2006 Sri Devi Video Corp.
Thilagam
CS (OS) No.324/2008 Page 15 of 23
15. Thaayin 20.04.2005 K.R. Prakash 29.07.2006 Sri Devi Video Corp.
Madiyil
16. Athisaya 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
Piravigal
17. Deivam 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
18. En 11.02.2005 M/s. Pavalar 28.07.2006 Sri Devi Video Corp.
Bommukutti Creations
Ammavukku
19. En Jeevan 09.09.1999 G.D. Sankar 28.07.2006 Sri Devi Video Corp.
Paduthu
20. Goondukili 05.06.2002 R.R. Pictures 28.07.2006 Sri Devi Video Corp.
21. Kaalamellam 18.11.1999 M/s. Sivashakshi 28.07.2006 Sri Devi Video Corp.
Kadhal Movie Makers
Vaazhga
22. Kaathavaraay 05.06.2002 R.R. Pictures 28.07.2006 Sri Devi Video Corp.
an
23. Kadal 03.02.2005 M/s. K.R.G. 28.07.2006 Sri Devi Video Corp.
Meengal Movies Intl.
24. Kanni 07.03.2005 M/s. Sri Amman 28.07.2006 Sri Devi Video Corp.
Paruvathilea Creations
25. Kozhi 11.02.2005 M/s. Pavalar 28.07.2006 Sri Devi Video Corp.
Koovudhu Creations
26. Kunguman 20.07.2007 G.D. Sankar 28.07.2006 Sri Devi Video Corp.
27. Maha Kavi 21.02.2000 G.D. Sankar 28.07.2006 Sri Devi Video Corp.
Kaalidas
28. Naan 05.06.2002 R.R. Pictures 28.07.2006 Sri Devi Video Corp.
29. Needhikku 21.11.1996 Mr. A.V. 28.07.2006 Sri Devi Video Corp.
Thalai Ayyathurai
Vanagu
30. Needhikkupp 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
in Paasam
31. Nenjil Oru 03.02.2005 M/s. K.R.G. 28.07.2006 Sri Devi Video Corp.
Ragam Movies Intl.
32. Nizhal 17.12.1996 Mr. J. Karunakaran 28.07.2006 Sri Devi Video Corp.
Nijamakirath
u
33. Paalum 25.11.2005 M/s. Saravanan 28.07.2006 Sri Devi Video Corp.
Pazhamum Films
34. Paataum 10.02.2001 M/s. Arun Prasad 28.07.2006 Sri Devi Video Corp.
Bherathamu Movie
m
35. Padithal 17.12.1996 Mr. J. Karunakaran 28.07.2006 Sri Devi Video Corp.
Mattum
Podhuma
36. Parakkum 05.06.2002 R.R. Pictures 28.07.2006 Sri Devi Video Corp.
Paavai
37. Pattanathi 20.08.1986 M/s. S.A.L. 28.07.2006 Sri Devi Video Corp.
Bootham Production
38. Pazhani 18.10.2000 Mr. J. Karunakaran 28.07.2006 Sri Devi Video Corp.
39. Poovizhi 25.05.2005 Mr. G. 28.07.2006 Sri Devi Video Corp.
Vaasalilea Balasubramanium
40. Raajadhi 11.02.2005 M/s. Pavalar 28.07.2006 Sri Devi Video Corp.
Raaja Creations
41. Raasu Kutty 09.09.1999 G.D. Sankar 28.07.2006 Sri Devi Video Corp.
42. Raman 10.02.2001 M/s. Arun Prasad 28.07.2006 Sri Devi Video Corp.
Ethanai Movie
CS (OS) No.324/2008 Page 16 of 23
Ramanadi
43. Rosappoo 18.05.1980 M/s. Vivekananda 28.07.2006 Sri Devi Video Corp.
Ravikkai Pictures
Kaari
44 Saraswathi 21.09.2001 M/s. Saraswathi 28.07.2006 Sri Devi Video Corp.
Sabatham Films Circuit
45. Shanti 20.08.1986 M/s. S.A.L. 28.07.2006 Sri Devi Video Corp.
Production
46. Singaara 11.02.2005 M/s. Pavalar 28.07.2006 Sri Devi Video Corp.
Vealan Creations
47. Vidinja 05.03.1997 M/s. Vivekananda 28.07.2006 Sri Devi Video Corp.
kalanam Pictures
48. Yellam 09.09.1999 G.D. Sankar 28.07.2006 Sri Devi Video Corp.
Enbamayam
49. Rail 01.04.2005 M/s. G.R.P. Arts 28.07.2006 Sri Devi Video Corp.
Payanagalil
50 Kanavea 18.11.1999 M/s. Sivashakshi 28.07.2006 Sri Devi Video Corp.
Kalaiyathe Movie Makers
51 Kanniththai 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
52 Maanavan 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
53 Malaiyur 22.06.2000 G.D. Sankar 28.07.2006 Sri Devi Video Corp.
Mamootiyan
54 Mugarasi 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
55 Navarathina 21.11.1996 Mr. A.V. 28.07.2006 Sri Devi Video Corp.
m Ayyathurai
56 Paanai 21.09.2001 M/s. Saraswathi 28.07.2006 Sri Devi Video Corp.
Pidithaval Film Circuit
Bakyasaali
57. Padikkadha 17.12.1996 Mr. J. Karunakaran 28.07.2006 Sri Devi Video Corp.
Methai
58. Panama 15.12.2005 Mr. K.S. 28.07.2006 Sri Devi Video Corp.
Paasama Gopalakrishan
59. Pattikaada 10.02.2001 Mr. Arun Prasad 28.07.2006 Sri Devi Video Corp.
pattanama Movie
60. Periyanna 07.07.1999 M/s. Javasubashri 28.07.2006 Sri Devi Video Corp.
Productions
61. Ranga 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
62. Thaai Sollai 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
Thattadhea
63. Thaiku 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
Thalaimagan
64. Thanippiravi 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
65. Thiruvarul 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
66. Thozhilali 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
67. Thunaivan 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
68. Vandicholai 14.10.1994 M/s. Vivekananda 28.07.2006 Sri Devi Video Corp.
Chinna Rasu Pictures
69. Vellikkizham 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
ai Viradham
70. Vivasayee 30.11.1989 Dhandayuthapani 28.07.2006 Sri Devi Video Corp.
35. However, from the pleadings of the parties and documents placed on record, the position appears to be otherwise. The said details CS (OS) No.324/2008 Page 17 of 23 of the same are as under :
(A) The plaintiff has not given details of its ongoing business relationship with the defendant as regards recording of the motion pictures on such video/compact disks which are generated by the defendant was being handled by the plaintiff.
(B) The plaintiff has filed the suit against the defendant as if the defendant is merely a stranger to the plaintiff. The plaintiff has also not stated that the licence period of various films has already expired before filing of the suit as per the agreement produced by the plaintiff itself, the details of which are given as under:
i. Deivam ii. Neethikkupinn Pasam iii. Manavan iv. Mugarasi v. Ranga vi. Thai sollai Thattadhea vii. Thanipiravi viii. Thiruavarul ix. Thozhilali x. Vellikilamai Viratham xi. Vivasayi xii. Thunaivan (C) The plaintiff has also not disclosed the fact that the defendant has also acquired the video/DVD rights from the producers of the said films directly.
(D) The plaint does not disclose the history of the prior litigation pending in Madras and Madurai between M/s.
West Top Investment P. Ltd. and the defendant, the CS (OS) No.324/2008 Page 18 of 23 former being the company from whom the plaintiff claims to have acquired the copyright of 55 of the 70 motion pictures.
36. It is pertinent to mention that the plaintiff has filed the present suit on the basis of the following cause of action which arose in favour of the plaintiff and against the defendant as described in para 19 of the plaint, which reads as under:
"19. The cause of action arose in favour of the Plaintiff and against the defendant on or about 3.2.2008 when the Plaintiff came to know about the infringing material being circulated and soled in the market. The cause of action further arose on 7.2.2008 when the Plaintiff procured the infringing videos of the defendants. The cause of action continues each time the defendants sells or offers for sale the infringing material of the defendants. The cause of action is continuing and still subsists."
37. As per the details and discussion in the earlier paras of the order, prima facie it appears that as regards almost all the motion pictures which are the subject matter of the present suit, the defendant has obtained exclusive copyright for the VCDs/DVDs of many pictures directly from the producer much prior to the plaintiff and in some cases the defendant has acquired it from the distributors who have acquired video rights from the original producers. Thus, the plaintiff has not been able to make a prima facie case in its favour for continuation of ex- parte order.
38. Further on the strength of the documents produced by the defendant, it appears that at this stage, balance of convenience completely lies in favour of the defendant and if the interim order is CS (OS) No.324/2008 Page 19 of 23 continued, the defendant would suffer irreparable loss and injury.
39. Another important factor is that the plaintiff has not acted in compliance with Order XXXIX Rule 3 CPC which is a mandatory provision. The ex-parte order in the present matter was granted on 19th February, 2008. The plaintiff was granted three days‟ time to comply with the provision of Order XXXIX Rule 3 CPC. It is not in dispute that the complete set of papers was sent to the defendant on 25 th February, 2008 and the affidavit of compliance was filed on 26 th February, 2008. No application for condonation of delay has been filed by the plaintiff, rather in reply to the objection raised by the defendant in its application under Order XXXIX Rule 4 CPC, it was specifically denied by the plaintiff for non-compliance of the said provision. Order XXXIX Rule 3 CPC reads as under :
3. Before granting injunction, Court to direct notice to opposite party.--The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant--
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with--
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.CS (OS) No.324/2008 Page 20 of 23
40. The provision of Order XXXIX Rule 3 is a mandatory provision and the same has been emphasized in A. Venkatasubbiah Naidu Vs. S. Chellappan, AIR 2000 SC 3032. There is a logic behind insisting that a Plaintiff who obtained an ex parte ad interim injunction order should, at the earliest point in time, deliver to the party against whom such injunction has been granted, all the documents on the basis of which such injunction was granted. This is to enable the opposite party to be aware as to the case against it and to approach the court at the earliest point in time to seek, if necessary, a variation of the interim order. The Supreme Court in Shiv Kumar Chadha v. MCD, (1993) 3 SCC 161 observed as under :
"34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said "the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite-party". The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the CS (OS) No.324/2008 Page 21 of 23 ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875) 1 Ch D 426 and Nazir Ahmed v. Emperor, AIR 1936 PC 253 (2). This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915."
41. In the recent order passed by this Court on 16 th September, 2009 in the case titled AGI Logistics Inc. and Anr. Vs. Mr. Sher Jang Bhadhur and Anr., 163(2009)DLT137, it has been observed in paragraph 14 as under :
"14. If the Court were to take a lenient view and not insist on strict compliance with the mandatory requirement of Order XXIX Rule 3, then it would be possible for most Plaintiffs to continue to enjoy an ad interim ex parte stay in their favour for any length of time and plead genuine mistake by their counsel for non-compliance. Numerous suits accompanied by applications seeking urgent ex parte reliefs are filed in our courts everyday. The court, on a perusal of the documents filed before it, forms a prima facie view for grant of an parte ad interim injunction against the opposite party, even in the absence of the opposite party. The Court at that stage has no means of knowing what the version of the opposite party is. The court, therefore, makes such interim order both time bound and conditional. The condition is that there must be CS (OS) No.324/2008 Page 22 of 23 compliance with Order XXXIX Rule 3 CPC within the time specified by the court. Although Order XXXIX Rule 3(b) CPC requires the filing of an affidavit of compliance 'on the day on which such injunction is granted or on the day immediately following that day', this Court has been granting a longer time accounting for the fact that the certified copy of the order passed by the court may not be available on the same day or even on the next date. However, there is no question of the Plaintiff not being required to comply with the mandatory requirement of Order XXXIX Rule 3 CPC within the time granted by the Court. In the considered view of this Court, a strict compliance with the mandatory requirement of this provision must be insisted and any laxity shown to parties might well defeat the very purpose for which such provision has been inserted."
42. This Court is in full agreement with the decision passed in the AGI Logistics case (supra) and is of the considered opinion that the ex-parte injunction in the present matter should be vacated on this account also. After considering the matter in totality, I am of the considered view that the interim order granted on 19th February, 2008 cannot be sustained and the same is, therefore, vacated. Consequently, the plaintiff‟s application being I.A. No.2196/2008 under Order XXXIX Rule 1 & 2 CPC is dismissed and the defendant‟s application being I.A. No.3224/2008 under Order XXXIX Rule 4 CPC is allowed. Both the applications are disposed of accordingly.
CS(OS) No.324/2008
43. List the matter before the Joint Registrar for admission/denial of documents on 8th March, 2010.
MANMOHAN SINGH, J.
FEBRUARY 18, 2010 sa CS (OS) No.324/2008 Page 23 of 23