Aman Chhabra And 7 Ors vs Trac Entertainment Pvt Ltd And 6 ...
2021 Latest Caselaw 8734 Bom

skn                             1                 COMAPPL-10715.2021.doc



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         ORDINARY ORIGINAL CIVIL JURISDICTION

         COMMERCIAL APPEAL (L) NO. 10715 OF 2021
                           IN
        INTERIM APPLICATION (L) NO. 2928 OF 2021
                           IN
          COMMERCIAL IP SUIT (L) NO. 7101 OF 2020


Aman Chhabra, S/o Ashok Chhabra,
Hotel Ashoka, L.T.Road,
Ramgarh Cantt- 929122, Jharkhand.                  ... Appellant.
                                                   (Original Plaintiff)

       V/s.

1. TRAC Entertainment Pvt.Ltd.,
   5B, 602, Girikunj CHS, New MHADA,
   Near Infinity IT Park, Goregaon (East),
   Mumbai 400 065.

2. Ragini Subhash Tandan,
   Flat No.106, B-Wing, Sunbeam,
   Apna Ghar, Unit No.7 CHS Ltd.
   Lokhandwala, Andheri (West),
   Mumbai- 400 053.

3. Shiv Tandan,
   103, Harsha II, 7 Bungalows,
   Versova, Andheri West,
   Mumbai- 400 061.

4. Vaibhav Kapadia,
   5B-602, Girikunj CHS, New MHADA,
   Near Infinity IT Park, Goregaon (East),
   Mumbai- 400 065.




 ::: Uploaded on - 05/07/2021                ::: Downloaded on - 05/07/2021 20:23:50 :::
 skn                                   2                COMAPPL-10715.2021.doc



5. Bull 18 Network,
   through sole proprietor Mr.Marshal
   Ramdev, SCO 29F, 2nd Floor, BRS Nagar,
   Ludhiana, Punjab- 141 003.

6. Blue Lemon Entertainment,
   through sole proprietor Mr.Shah Ahuja,
   800B, Beverly Park I, MG Road, DLF City,
   DLF Phase II, Gurugram, Haryana- 122 009.

7. Mohit Dogra,
   House No.470, New Khurbura,
   New Kanwali Road, Dehradun,
   Uttarakhand.                                  ... Respondents.
                                                 (Original Defendant
                                                  Nos.1 to 6 & 8)


Mr. Karl Tamboly with Vivek Vashi, Ankit Pathak and Shilpa Sengar
i/b Vashi and Vashi for the Appellant.

Ms. Megha Chandra with Mahalaxmi Ganapathy for Respondent
Nos. 2 and 3

                        CORAM :           NITIN JAMDAR AND
                                          C. V. BHADANG, JJ.

(Through Video Conferencing)

DATE : 3 July 2021.

JUDGMENT : (Per Nitin Jamdar, J.)

The Appellant has filed a commercial suit against the Respondents regarding the copyright of two music videos, "Pyar To Na Kaho" and "Lutti Heer". The Appellant has sought a declaration

skn 3 COMAPPL-10715.2021.doc

that Respondent No.1- Company owns the copyright and has prayed for an injunction against Respondent Nos.2 to 6. In the Interim Application taken out by the Appellant in the Suit, an interim order was passed by consent of parties. However, later on, upon an application filed by Respondent Nos.2 and 3, the learned Single Judge has varied the consent order. Challenging this order varying the earlier consent order, the Appellant is before us by this Commercial Appeal under section 13 of the Commercial Courts Act, 2015.

2. The main grievance of the Appellant is the denial of opportunity by the learned Single Judge to file a reply and contest the application taken out by Respondent Nos. 2 and 3 for modification of the earlier consent order. The Appellant's prayer is to set aside the impugned order, grant time to the Appellant to file a reply to the application, and the application be re-heard. In view of this limited submission, we have considered the facts of the case to ascertain whether the Appellant's grievance is justified.

3. Mr. Aman Chabra, the Appellant- Plaintiff and Ms. Ragini Subhash Tandan, Respondent No.2- Defendant No.2, have set up Company TRAC Entertainment Pvt. Ltd., Respondent No.1- Defendant No.1. The Company was set up to produce sound, audio, music videos and to promote/publish the same. The Appellant and Respondent No.2 each hold 50% shares in Respondent No.1-

skn 4 COMAPPL-10715.2021.doc

Company. Shiv Tandon, Respondent No.3- Defendant No.3, is the brother of Respondent No.2. Respondent No.4- Defendant No.4 is the friend of the Appellant and Respondent Nos.2 and 3. Similarly, Respondent/Defendant Nos.5, 6, 7 and 8 are individual entities in the same profession whom the Appellant joined as parties to the suit as the Appellant has alleged that they have colluded with Respondent Nos.2 and 3.

4. The Appellant filed Commercial I.P. Suit (L) No.7101/2020 on 11 August 2020, joining Respondent Nos.1 to 7 as party Defendants. The suit was regarding the copyright of two music videos, "Pyar Ko Na Kaho" and "Lutti Heer" (the songs). According to the Appellant, Respondent No.1- Company has produced the songs by utilizing the investment amount. Respondent No.1 is solely and exclusively entitled to deal with the songs and commercially exploit the same. According to the Appellant, he has invested a substantial amount in producing the songs. The Appellant sought a declaration that Respondent No.1- Company was the exclusive producer and owner of the copyrights in the songs and Respondent Nos.2 to 6 committed infringement of the copyrights of Respondent No.1- Company, and they should be restrained by order of injunction from dealing with the songs in any manner. The Appellant also sought compensation for the infringement of the copyrights. The other reliefs ancillary to the main reliefs were also prayed.

skn 5 COMAPPL-10715.2021.doc

5. The Appellant took out an Interim Application (L) No.7114/2021 in the Commercial Suit seeking an order of injunction against Respondent Nos.2 to 6 to restrain them from in any manner dealing with the songs. The case of the Appellant is that the dispute that had arisen between the parties was sought to be settled, but Respondent Nos.2 and 3 kept delaying the execution of the settlement agreement. The Appellant came across posts on social media- Facebook and Instagram in February 2020 wherein Respondent No.2 was proceeding to launch one of the songs which were produced by Respondent No.1- Company, under a different name. In July 2020, similar steps were taken regarding the other song. With these allegations, the Appellant prayed for an order of injunction.

6. Respondent Nos. 2 and 3 filed their reply to the interim application on 27 August 2020. They contended as follows: Neither the Appellant nor the Respondent No.1- Company have any copyright in the suit songs. The dispute raised is only a shareholder's dispute. It was Respondent No.2 who had produced the suit songs and was entitled to broadcast the suit songs in her individual capacity. The Appellant's conduct regarding the company's affairs was blameworthy. The only intention of the Appellant was to force a monetary settlement.

skn 6 COMAPPL-10715.2021.doc

7. The interim application came up before the learned Single Judge (K. R. Shriram, J.) on 9 October 2020. The advocates representing Respondent Nos.2 and 3, on instructions, stated that the order of injunction could be granted. They also stated that Respondent No.1- Company in which the Appellant and Respondent No.2 hold 50% shares each and are the only Directors, steps can be taken so that Respondent No.1- Company gains. The Appellant also stated that the Appellant would also take all steps to enable the Respondent No.1- Company to exploit the songs. The learned Single Judge accepted both the statements, and the interim application was disposed of. The learned Single Judge granted time to file a written statement.

8. Respondent Nos.2 and 3 filed written statement on 9 December 2020. Respondent Nos.2 and 3 denied any copyright regarding the songs in Respondent No.1- Company. Respondent Nos.2 and 3 denied the averments in the plaint, and the stand taken in reply to the interim application was elaborated.

9. On 28 January 2021, Respondent Nos.2 and 3 filed an affidavit of compliance stating that they have complied with the order dated 9 October 2020 and further stated that the suit songs "Pyar To Na Kaho" and "Lutti Heer" have been removed from the social media platforms.

skn 7 COMAPPL-10715.2021.doc

10. On 28 January 2021, Respondent Nos.2 and 3 filed an Interim Application (L) No.2928/2021, praying for vacating the order dated 9 October 2020. In the alternative, it was prayed to modify the order dated 9 October 2020 to the extent the Respondent Nos.2 and 3 be allowed to release and exploit the suit songs and that they would maintain and submit the accounts thereof in the Court. Respondent Nos.2 and 3 stated that the order dated 9 October 2020 was passed so that the songs could be monetized effectively; however, the Appellant did nothing towards monetizing the songs, and if the Appellant was not interested in commercially exploiting the songs, then Respondent Nos.2 and 3, the Applicants therein be permitted to exploit the songs commercially. A copy of the application was served on the Appellant on 17 March 2021.

11. The matter came up on board of the learned Single Judge on 25 March 2021 when the Appellant requested time to file a reply to the application. The learned Single Judge opined that since 9 October 2020, for whatever reasons, the Appellant is not able to exploit the suit songs commercially, and therefore the prayer of Respondent Nos.2 and 3, that they may be permitted to exploit the songs and deposit and bring the revenue to the account of Respondent No.1- Company was fair. The learned Single Judge opined that no purpose would be served by permitting the Appellant to file reply as even assuming the Appellant has put in efforts to exploit the songs, as these efforts have not generated any revenue.

skn 8 COMAPPL-10715.2021.doc

The learned Single Judge observed that in this situation, the order dated 9 October 2020 needs to be varied, permitting the Appellant and Respondent Nos.2 and 3 both to exploit the songs commercially. Accordingly, the learned Single Judge disposed of the interim application modifying the order dated 9 October 2020 where both the Respondent Nos.2 and 3 and the Appellant were equally entitled to exploit the songs commercially, and it was directed that the revenue shall be brought to the account of Respondent No.1- Company. It was directed that there shall be no withdrawal of the amount brought in by either side without the leave of the Court. Both sides were directed to maintain the accounts for all work of commercialization in respect of suit songs. Accordingly, by order dated 25 March 2021, the learned Single Judge disposed of the Interim Application No.2928/2021.

12. Challenging the order dated 25 March 2021, the Appellant has filed the present Appeal on 28 March 2021.

13. The appeal came up for consideration on 4 May 2021. At that hearing, we recorded the Appellant's contention that the Appellant was not given an opportunity to file a reply, and the matter needs to be remanded to the learned Single Judge. Respondents Nos.2 and 3 stated that they would require time and be allowed to counter the assertions. Noting that the order dated 25 March 2021 proceeded on the basis that the arrangement stipulated will inure to

skn 9 COMAPPL-10715.2021.doc

the benefit of both the parties, the Respondents were directed to place on record the progress of commercial exploitation of these songs after 25 March 2021, so we could decide further course of action. The learned Counsel for Respondent Nos.2 and 3 assured that the details would be circulated with a copy to the Appellant.

14. Pursuant to the order dated 4 May 2021, Respondent Nos.2 and 3 circulated a note stating that on 3 August 2020, the Respondent No.2 has executed an agreement with Believe International on 3 August 2020 and since then, Believe International has acted as a distribution partner of Respondent No.2's musical works and music videos. Respondent Nos.2 and 3 stated that on 13 April 2021, "Lutti Heer" was released by Believe International in 270 territories worldwide on multiple digital platforms. It was stated that details of any amount accrued to release "Lutti Heer" will be informed to Respondent No.2 on 13 September 2021, and the necessary revenue statement could be shared by Respondent No.2 at that time.

15. When the appeal came up on board on 6 May 2021, the learned Counsel for the Appellant pressed for the hearing of the appeal. At that time, the learned Counsel for Respondent Nos.2 and 3 stated that the Appellant has pleaded various facts in the interim application filed in the appeal and taken grounds with new facts in the appeal memo and sought time to file a reply.

skn 10 COMAPPL-10715.2021.doc

Accordingly, we granted time to Respondent Nos.2 and 3 to file a reply affidavit. Respondent Nos.2 and 3 filed their reply to the interim application on 8 June 2001. Respondent Nos.2 and 3 placed on record the agreement between Believe International dated 3 August 2020.

16. We have heard Mr. Karl Tamboly for the Appellant and Ms. Megha Chandra for the contesting Respondent Nos. 2 and 3. The Appellant has served all the Respondents and has filed an affidavit of service. The other Respondents/ Defendants were not present when both the orders were passed, and the impugned order is passed on the application of Respondent Nos.2 and 3. Therefore, considering the order that is proposed to be passed, the appeal is taken up for disposal.

17. The Appellant's primary contention, as referred to earlier, is the denial of an opportunity to file a reply affidavit to oppose the Interim Application (L) No.2928/2021 before the learned Single Judge.

18. The order dated 9 October 2020 is modified by the impugned order. Thus, the relevant portions of the order dated 9 October 2020 need to be reproduced. In this order, the learned Single Judge first recorded the statement of the learned Counsel for the Respondent Nos.2 and 3 as under:

skn 11 COMAPPL-10715.2021.doc

"1. Mr. Kohli appearing for defendant no.2 and Mr.Sabharwal appearing for defendant no.3 on instructions state that the reliefs in terms of prayer clauses (a) to (f ) in the interim application be granted.

After reproducing the prayer clauses, the learned Judge observed and directed as under:

2. Mr. Kohli and Mr. Sabharwal further state that defendant no.1, which is a company, in which plaintiff and defendant no.2 hold 50% shares each and are the only two Directors, who can exploit the rights of the songs which are the subject matter of the suit. Mr. Kohli and Mr. Sabharwal state that the plaintiff may decide how to exploit songs and bring its revenue to defendant no.1, and defendant nos.2 and 3, if required, shall extend all co-operation to the plaintiff so that the company gains at the end of the day. Statement accepted as an undertaking to this court. Interim application accordingly stands disposed.

3. Mr. Desai for the plaintiff states that the plaintiff will take all steps to enable defendant no.1 to exploit the songs. Statement accepted as an undertaking to this court.

4. There is also another interim application, which for convenience is numbered as LD/VC/IA No.205B of 2020. This application is taken out by defendant no.7. Mr. Desai appearing for the plaintiff has no objection. Accordingly, this application is allowed in terms of prayer clause (a). Plaintiff to amend the plaint accordingly within two weeks from today. Interim application LD/VC/IA No.205B of 2020 stands disposed.

5. Defendant nos.2 and 3 waive service of writ of summons. Time to file written statement starts from today and in view of pandemic, I would grant 60 days time to file the written statement."

skn 12 COMAPPL-10715.2021.doc

The application was accordingly disposed of. There is no dispute before us that the order dated 9 October 2020 is a consent order. It is not the case of Respondent Nos. 2 and 3 in the interim application for modification that any party committed fraud or misrepresentation, or anyone forced them to give consent.

Respondent Nos.2 and 3 filed the application because good ground existed to vary the consent order and that, according to them, the consent order has become unworkable. The first prayer in the application was to review or vacate the order dated 9 October 2020; as an alternate prayer, modification of the said order was sought.

19. The Appellant has placed on record the judgment of the learned Single Judge (Wadia J.) of this Court rendered in the year 1931 in the case of Yusuf Ismailbhai Abdullabhai Lalji v. Abdullabhai Lalji on the position of law as regards the consent order1. In this case, the defendant took out a notice of motion in the pending suit for an order that the sale under consent order dated 9 October 1930 by the Commissioner of the Court be stayed or deferred. An objection was taken that the order dated 9 October 1930 was a consent order and, therefore, such a notice of motion was not maintainable. Wadia J considered the question as to what is the status of an interim consent order in a suit. Wadia J. distinguished the concept of modifying a consent decree and modifying an interlocutory consent order. Wadia, J. observed that the interlocutory consent order could be set aside by an application in the same suit, 1 1931 ILR (Vol.LVI) 231

skn 13 COMAPPL-10715.2021.doc

but for that, proper grounds must exist.

20. Thus, the parties should be generally made bound to the consent freely given even in an interlocutory consent order. Such interlocutory consent order should not be readily set aside or recalled unless the Court is satisfied there are valid grounds. Having agreed to a particular course of action, when the party alleges that the consent order has become unworkable or needs to be varied, the Court must be satisfied that proper grounds as pleaded exist. The party against whom such an application is moved is entitled to contend that there are no such valid grounds, and the other party should be made bound by the consents given by them and recorded by the Court. Unless the matter is of urgency, for effective adjudication as to the existence of proper grounds, generally, an adequate opportunity needs to be given to the parties to contest the modification.

21. Both, the Appellant in his response to Interim Application (L) No.2928/ 2021 and the Respondent Nos.2 and 3 in reply to the Appellant's arguments, before us, are advancing arguments on merits for the first time in the Appeal. We have heard the rival contentions to find out whether there was nothing at all to the Appellant to argue as observed by the learned Single Judge and whether there was an area for debate open. The arguments advanced before us that we now advert to show that the matter may not be as simplistic and straightforward.

skn 14 COMAPPL-10715.2021.doc

22. First, the Appellant's case. The Appellant contends as follows. Whether any grounds existed to vary the consent order dated 9 October 2020 would entail a factual enquiry, and the presumption since the Appellant failed to exploit the songs was unable to exploit the songs is rebuttable. By filing the suit, the Appellant is seeking to prevent Respondent No.2 from exploiting the suit songs. Even the order dated 9 October 2020 does not permit Respondent Nos.2 and 3 to exploit suit songs, and for the first time, under the modification of the consent order, this right has been given to Respondent Nos.2 and 3. Such an order which grants relief to Respondent Nos.2 and 3 cannot be granted in the suit filed by the Appellant. Respondent Nos.2 and 3 are creating a situation whereby the Appellant is unable to exploit the suit songs commercially since already exclusive rights are created in favour of Believe International in terms of the agreement dated 3 August 2020. Respondent No.2's only interest is to garner publicity for herself, as she figures as a singer of the songs, with no intention of any commercial exploitation. The Appellant has invested a substantial amount on which there is no return, and Respondent Nos.2 garners publicity for herself at the Appellant's expense. After filing an undertaking that Respondent Nos.2 and 3 have taken down the material on the websites and social media, the material continues to be present on the platforms. Printouts of pages from social media show that the material put up by Respondent Nos.2 and 3

skn 15 COMAPPL-10715.2021.doc

indicates that the songs have been released by Respondent Nos.2 and 3. It is not practicable to exploit the songs simultaneously by two parties as a platform or agency that would buy the rights would require exclusive rights to deal with the same. Therefore, the direction that both parties can exploit the songs is unworkable. The Appellant contends that had an opportunity been granted by the learned Single Judge, the Appellant could have placed these facts on record, and the finding that no purpose would be served by giving time to file a reply is incorrect.

23. The Respondent Nos.2 and 3 contends as follows. The Appellant was given an adequate opportunity as the Appellant was served with the copy of the application on 17 March 2021, and the impugned order came to be passed on 25 March 2021. The agreement in the order dated 9 October 2020 was based on reciprocal undertakings given by the Appellant and Respondent Nos.2 and 3. Since the Appellant has admittedly failed to comply with his undertaking in the order dated 9 October 2020, he cannot seek an injunction against Respondent Nos.2 and 3. After the order dated 9 October 2020 was passed, on 18 November 2020, in the Board meeting of Respondent No.1, the Appellant declared that he would release the suit songs. The contention of the Appellant that Respondent Nos.2 and 3 were preventing him from releasing the suit songs is entirely incorrect. Respondent Nos.2 and 3 have already stated in their affidavit of disclosure that they have removed all the songs. The Appellant has produced nothing to show that a third

skn 16 COMAPPL-10715.2021.doc

party could not release the songs. The only evidence which is sought to be brought on record is the promotional material. This material only shows links to the websites, but the links are no longer active. The Appellant has changed his case as he had stated in the meeting of 18 November 2020 that he is not ready to exploit the songs. Admittedly, from 9 October 2020 to 25 March 2021, the Appellant has taken no steps to exploit the songs. Therefore, no prejudice is caused to the Appellant by the impugned order. The objection to the exploitation by Respondent No.2 regarding publicity is irrelevant as, ultimately, it is only the singer who gets the publicity when a song is released.

24. We have adverted to these rival contentions to determine whether there was an area for debate for modification of the order dated 9 October 2020. It is clear from the above that there was an area of debate. The circumstances from 9 October 2020 till 25 March 2021 in which the Appellant could not commercially exploit the suit songs is a disputed question. Though the Appellant has not been able to exploit the songs, there is a possibility of defence based on the role of Respondent Nos.2 and 3 in the resultant situation and the consequence of the modification. It is the case of the Appellant, as argued before us, that it was due to certain actions of Respondent Nos.2 and 3 that the Appellant could not exploit the songs. Whether the Respondent Nos.2 and 3 themselves did not fully comply with the undertaking is an area of dispute. There is also a dispute whether both parties, as a business

skn 17 COMAPPL-10715.2021.doc

reality, can commercially exploit the songs simultaneously. According to the Appellant, those who would buy the rights would require exclusive rights to deal with the same. It also needs to be considered as contended by the Appellant, whether the permission to Respondent Nos.2 and 3 to exploit the songs amounts to order in favour of the defendants in a plaintiff's suit. Therefore, it could not have been said that there was nothing for the Appellant to argue to oppose the Interim Application.

25. We agree with the Appellant that due to the current situation, when served with a copy of the application on 17 March 2021 and when there was no such urgency shown by Respondent Nos.2 and 3, the request for grant of time made on 25 March 2021 was a reasonable request and ought to have been granted. We cannot decide the grounds on the merits of modification for the first time in the appeal. The impugned order will have to be quashed and set aside, and the application will have to be restored before the learned Single Judge.

26. Respondent Nos.2 and 3 contend that if the matter is to be remanded to the learned Single Judge, till the learned Single Judge hears the matter afresh, we should continue the position under the impugned order dated 25 March 2021, where both parties are permitted to exploit the songs commercially. Respondent Nos.2 and 3 contend that third-party rights have already been created in the agreement with Believe International. It is contended that the

skn 18 COMAPPL-10715.2021.doc

balance of convenience is also not in favour of the Appellant. Respondent Nos.2 and 3 submit that if the order dated 25 March 2021 is set aside, the order dated 9 October 2020 would be restored, which is inoperable. The Appellant submits that the impugned order be set aside, and the learned Single Judge will decide the interim application and no further order from the appeal court is necessary.

27. Once the order dated 25 March 2021 is set aside and the interim application is restored, it would follow that the position before 25 March 2021 would stand restored. However, since it is the contention of Respondent Nos.2 and 3 that third-party rights have been created and equity demands that the position under the impugned order should continue till the fresh hearing of the application, we consider these contentions of Respondent Nos.2 and 3.

28. By order dated 4 May 2021, we had directed Respondent Nos.2 and 3 to place on record the progress for commercial exploitation of suit songs based on order dated 25 March 2021. A Note was placed on record by Respondent Nos.2 and 3 stating that an agreement has been executed with Believe International on 3 August 2020. Since then, Believe International has acted as distribution partner of Respondent Nos.2 and 3. After the impugned order, under the agreement with Believe International, the suit song Lutti Heer has been released. Respondent Nos.2 and 3

skn 19 COMAPPL-10715.2021.doc

had made a specific statement that, as per the contractual arrangement, Respondent No.2 will receive all incomes after the end of each calendar quarter and regarding commercial exploitation of "Lutti Heer", the Respondent No.2 can make a statement only on 13 September 2021. In the affidavit-in-reply also Respondent Nos.2 and 3 reiterated the same stand.

29. During the hearing, the learned Counsel for the Appellant pointed out that as per the agreement with Believe International and is standard practice, Believe International will give the Respondent No.2 a login-id, and the Appellant and Respondent No.2 can easily ascertain the revenue generated from the dashboard provided to user access area of the website and from this, the Respondent No.2 can easily state what the revenue generated post- release of the songs on 15 April 2021 is. When confronted with this position, Respondent No.2, through her Counsel, accepted that this position is correct and the revenue as of today is possible to be stated. It is not necessary to wait till 13 September 2021.

30. The learned Counsel for Respondent Nos.2 and 3 submitted, for the first time, during the hearing in June 2021 and after filing a reply and the Note that the revenue generated by Respondent No.2 in respect of songs in question is - Nil. There is no revenue generated post 15 April 2021. It is then contended that the amount will be crystallized only after deduction by Believe International. However, when the revenue is Zero, there is no

skn 20 COMAPPL-10715.2021.doc

question of any deduction.

31. Counsel for Respondent Nos.2 and 3 submitted that they misunderstood the Court's direction and, therefore, revenue generated was not stated in the reply filed. The order of the court was clear, and there was no scope for misunderstanding.

32. To a specific query as to why the agreement with Believe International, though it was of 3 August 2020, was not pointed out to the Court throughout the hearing of the Suit, it was contended by Respondent Nos.2 and 3 that the agreement with Believe International dated 3 August 2020 is an umbrella agreement relating to the various musical works of the Respondent Nos.2 and 3. It comes into play qua a song only when Respondent No.2 uploads the song on the platform of Believe International. Therefore, it was not necessary to inform the Court regarding the existence of the agreement with Believe International. Respondent No.2 stated that the song was uploaded after the impugned order. Also, to a specific query whether the agreement dated 3 August 2020 mandates that Respondent No.2 should upload all the songs on the platform of Believe International, the learned Counsel for Respondent Nos.2 and 3 submitted that there is no compulsion, and the Respondent No.2 can upload the song or can take it down from the platform of Believe International as per her choice. Therefore, Respondent No.2 can take down the suit song from the platform of Believe International, and the song, so far, have generated no revenue.

skn 21 COMAPPL-10715.2021.doc

33. Respondent Nos.2 and 3 contend that Respondent No.2 will remove the song from the platform of Believe International if the Appellant brings a credible alternative. However, as per the agreement of Respondent No.2 with Believe International dated 3 August 2020, Believe International gets all the exclusive rights of exploitation and promotion of songs uploaded by Respondent No.2. So, as of today, unless Respondent No.2 removes the song from the platform of Believe International, the Appellant cannot commercially exploit the song. Prima facie, we find merit in the Appellant's contention that there will be no offers if the song remains on the platform of Believe International as the steps for removing the song from the platform have to be taken by Respondent No.2 and not by the Appellant.

34. Therefore, we find no such crystallization of third party rights after 25 March 2021 as contended by Respondent Nos.2 and

3. Respondent No.2 has simply included the songs in the ambit of pre-existing agreement, which on Respondent No.2's own showing can be uploaded or removed at the choice of Respondent No.2. That being the position and that zero revenue is generated from the exploitation of the songs, no irreversible position has taken place, nor the equity has arisen post 25 March 2021 to direct that the position under the impugned order to continue till the matter is heard by the learned Single Judge afresh. We also note the Appellant's argument that even though the suit songs are not bringing any tangible returns,

skn 22 COMAPPL-10715.2021.doc

Respondent No.2 is getting publicity for showcasing the suit songs on a worldwide platform.

35. Having once come to the above conclusion and no irreversible situation has taken place post 25 March 2021, no direction is necessary as to the interim arrangement until the learned Single Judge decides the application afresh.

36. We reiterate that our observations are in the context of the need to remand the matter. We have referred to the rival contentions only to highlight an area of factual dispute and enquiry. We have not commented on the outcome of the dispute. The observation regarding position post 25 March 2021 is only to deal with the prayer of Respondent Nos.2 and 3 that the same position should continue. It is for the learned Single Judge to decide the fate of the restored interim application.

37. The appeal is allowed. The impugned order dated 25 March 2021 passed by the learned Single Judge in Interim Application (L) No.2928/2001 in Commercial IP Suit (L) No.7101/2020 is quashed and set aside. The Interim Application (L) No.2928/2001 stands restored to the file. The Appellant will file a reply to the application as per the schedule set by the learned single Judge.

      (C.V. BHADANG, J.)                     (NITIN JAMDAR, J.)