Bombay High Court
Ganeshwadi vs Shri Rajesh Shivram Kolambkar on 14 October, 2013
Bench: Anoop V. Mohta
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
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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
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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
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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
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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
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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.
Considering 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.)
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