M/S Sri Lakshmi Ganesh Films ... vs M/S. Eenadu Television A Division ...
2022 Latest Caselaw 8399 AP

         THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


                     Appeal Suit No.203 of 2012

JUDGMENT:

This appeal is preferred against the judgment and decree,

dated 08.09.2011, passed in O.S.No.33 of 2006 on the file of the

Court of II Additional District Judge, Vijayawada.

2. Heard Sri Sai Gangadhar Chamarty, learned counsel

appearing for the appellant/plaintiff and Sri B. Nalin Kumar, learned

counsel appearing for the respondent/defendant. Since the suit was

not pressed against the 2nd defendant, the 2nd defendant is not a

party to this appeal.

3. The case of the plaintiff, in brief, is as follows:

The plaintiff is a proprietary concern dealing in films, i.e.,

purchase of pictures for distribution, exhibition and exploitation.

The 1st defendant is a reputed television channel showing video

films (movies) over T.V by name ETV apart from other T.V network

programs. The 2nd defendant is the producer of pictures and the

producer of the Telugu talkie black & white picture 'Ramalayam'

35 mm, having complete world negative rights with distribution,

exhibition and exploitation in the entire world.

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(b) The world negative rights of the said movie was assigned to

the plaintiff by the 2nd defendant through an agreement,

dt.29.11.1991, and thus, the plaintiff was assigned all the rights

and perpetual rights for distribution, exhibition and exploitation

along with transfer of the negative both sound and picture for the

entire world from the date of the agreement, for a valid

consideration, and nobody else including the 2nd defendant (original

owner) have rights on the picture in any manner whatsoever.

(c) While so, the plaintiff has come to know in the first week of

November, 1999, that the picture had already been relayed on

Eenadu Television on 25.11.1996. The 1st defendant did not obtain

any permission from the plaintiff. The infringement has considerably

diminished the utility and income on the said picture and loss of

profit which the plaintiff must otherwise have made and thus

resulted in monetary damage to the plaintiff. Immediately, the

plaintiff got issued a telegraphic notice, dt.22.11.1999, followed by

a detailed legal notice, dt.23.11.1999 to the 1st defendant to pay

damages of Rs.2 lakhs forthwith and also to refrain from using the

picture in any manner without the permission and consent of the

plaintiff. The plaintiff did not receive any reply from the 1st

defendant till filing of the suit.

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4(a) The 1st defendant filed written statement denying the

allegations made in the plaint. The plaintiff herein filed O.S.No.543

of 1999 on the file of the Court of Senior Civil Judge, Vijayawada,

on 24.11.1999. This defendant filed written statement in August,

2001 questioning the jurisdiction of the Senior Civil Judge's Court in

entertaining a suit for infringement of right under the Copy Right

Act since the District Court alone has jurisdiction. Immediately, the

plaintiff ought to have withdrawn the suit from the Court of Senior

Civil Judge, Vijayawada, and presented it before the District Court.

Thus, this suit is hopelessly barred by limitation.

(b) Ushakiron Movies, a Proprietary concern obtained the

copyright in respect of the cinematograph film 'Ramalayam' from

Mr. D. Ramakrishna under an assignment deed, dated 24.01.1996,

specifically for satellite, cable, wire and wireless or any other

system. This defendant, by virtue of an understanding with M/s.

Ushakiron Movies, had absolute liberty to exploit the film

'Ramalayam' by satellite. The satellite channel was not existing in

the year 1991 and what was transferred by the Producer to the

plaintiff herein was rights in respect of distribution and theatrical

exploitation of the film all over the world, which does not include

cable, satellite etc. When the producer himself did not have any

right in respect of satellite, the same cannot be transferred.

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(c) The alleged agreement, dated 20.11.1991 is fabricated and

brought into existence by the plaintiff solely for the purpose of this

suit to make wrongful gain. The suit is liable to be dismissed.

5. Basing on the above pleadings, the following issues were

framed for trial:

      1)       Whether the suit is barred by limitation?

      2)       Whether the suit is not maintainable?

      3)       Whether the plaintiff is entitled for damages as claimed?

      4)       To what relief both parties are entitled?

On behalf of the plaintiff, PW1 was examined and exhibits A1 to A4

were marked. The authorized representative of the 1st defendant

was examined as DW1. Exhibits B1 to B3 were marked. On the

above evidence and on hearing the counsel for the parties, the trial

Court dismissed the suit. Aggrieved thereby, the plaintiff preferred

this appeal.

6. In the grounds of appeal, the appellant contends that the trial

Court failed to consider the case of the appellant in correct

perspective and in the light of the principles laid down in the

decided cases. The trial Court erred in considering the negative

rights & satellite rights independently ignoring the fact that the

producer is the whole and sole Proprietor of all rights. The trial

Court misread the averments of exhibit A1 and failed to consider

BSB, J A.S.No.203 of 2012

the scope and ambit of words distribution, exhibition and

exploitation. The findings of the trial Court are misconceived. The

reasoning of the trial Court is erroneous, unsound and

unsustainable. Thus, the judgment & decree impugned are vitiated.

7. Learned counsel for the appellant vehemently contended that

all forms of exhibiting the cinema has been taken by the appellant

and therefore, merely because it is not mentioned in the assignment

deed that satellite rights are specifically mentioned, it cannot be

allowed to be exhibited.

8. On the other hand, learned counsel for the respondent

contended that the copy right is a bundle of rights and like different

kinds of right in property, some or all of them can be dealt with by

the person possessing such right(s), and therefore, whatever is

specifically assigned alone are governed by assignment deed and

nothing more can be incorporated in the assignment deed. He

further argued that in the cross-examination of PW1, he admitted

that he claims rights only in respect of exhibition of film in cinema

theatre and film in 16 mm in open theatres as is in the agreement.

9. It is apropos to mention here the relevant terms in the

agreement.

'4. The Lessors hereby delivered to the Lessees the negatives (Sound & Picture) of the Picture and also confirmed that the Lessees shall have the entire rights of 35 mm, 16mm,

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Video, T.V rights with distribution, exhibition and exploitation and the Lessors shall have no rights on the picture in any manner whatsoever.

6. Other terms and conditions are as usual as in the film trade for the perpetual lease rights and world negative rights agreement.

7. The Lessors shall have the absolute rights of the Screenplay, Copyright of the said Telugu Talkie picture 'Ramalayam' and shall have absolute rights to assign remake rights of the said picture for any other Indian Languages.'

10. As rightly contended, copyright is a bundle of rights in

different forms like distribution, exhibition, exploitation, remake

etc., and therefore whatever form (s) of right (s) assigned alone can

be claimed by the assignee. The plaintiff states that right of

exhibition assigned to him includes all types of exhibition including

exhibition through satellite mode, apart from exhibition in cinema

theatres or open theatres. Clause 4 says the lessor shall have no

rights on the picture in any manner whatsoever, after describing

specific form of rights in the same clause. What is kept with the

lessor under Clause 7 is only to remake in other Indian languages.

Though PW1 admitted in his cross-examination as argued, PW1

further stated that the 2nd defendant told him that he was giving

rights regarding 16 mm and 35 mm, audio and video and all further

rights over the said film and that the said fact was also mentioned

in exhibit A1. It denied the suggestion that the exhibition right is

only in cinema theaters. The last part of Clause 4 is intended to

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mean residuary rights in all forms and means, there is no scope for

Clause 7. Then what does it mean? For this, the intention of

parties by then must be culled out. Did they intend to mean

'exhibition' in all forms existing only or that may exist in future also.

In this context, clause 6 may throw some light. Perpetual lease

rights and world negative rights were agreed. The covenant in the

agreement does not indicate that exhibition in future forms was also

assigned. 'Negative right' may mean 'negative covenant' but not

'negative film'. It is admitted in arguments that TV rights referred

in Clause 4 are also different from satellite right and it is not argued

on those lines even before the trial Court.

11. It is an admitted fact that as on the date of entering into the

assignment deed, neither party contemplated right to exhibit the

film through satellite, and PW1 also admitted in his cross-

examination that there were no satellite television channels at all

(by then). Therefore, what was agreed between the parties is

traditional mode of exhibiting the cinema as could be contemplated

by both parties by then, but after technical advent of exhibiting film

through satellite has become available. The consideration would be

commensurate to the possibility of making business out of it while

negotiating. As such, the agreement between the parties cannot be

construed to mean whatever rights that may accrue in future as

there is no specific term in the assignment deed covering all forms

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of residuary rights in favour of the assignee. As such, the

contention of the appellant that the agreement between the parties

would also include all forms of exhibition including those that may in

future come into existence cannot be accepted.

12. It is further submitted by the learned counsel for the appellant

that in the similar matters between the plaintiff and the 2nd

defendant, they entered into compromise and amount was paid, but

no such proof is filed. Further, without there being pleading and

proof, no such averment can be taken into consideration. That

apart, whatever is done through terms of compromise cannot form

legal basis to make future claims on similar matters when they are

contested.

13. The trial Court dealt with the point and it is only five years

lifetime for a copy right, if no time is specified in the agreement, as

per Section 19(5) of the Copy Rights Act, 1957, and therefore, the

right of the plaintiff has expired by 28.11.1996. Since Clause 6 of

the agreement speaks of perpetual lease rights, period of five years

does not apply. Moreover, no plea is taken in the written statement

and no issue was framed on that aspect. What is pleaded about

limitation is to file suit within three years from the date of cause of

action since originally suit was filed before a Court of Senior Civil

Judge, and five years later before the District Court. In that

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context, issue No.1 was framed. This is answered as I.A.No.8059 of

2005 under Section 14 of the Limitation Act was allowed on

14.09.2005. Therefore, the suit is not barred by limitation. Even

otherwise, observation about Section 19(5) is found to be erroneous

since the agreement is dated 29.11.1991 and the subject matter

film was exhibited on 25.11.1996 and the suit was filed on

25.11.1999 and therefore, the cause of action arose within five

years from the date of agreement and the suit was filed which is on

the last day of three years period of limitation. As such, the finding

of the trial Court on the said aspect is not sustainable.

14. Since the plaintiff has no right to seek enforcement of

exhibition of the film through satellite, the suit claim is liable to be

dismissed. As such, there is no merit in the appeal.

15. Accordingly, the appeal is dismissed.

There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

_________________ B.S BHANUMATHI, J 08-11-2022 RAR