Bombay High Court
Phonographic Performance ... vs Reliance Broadcast Network ... on 6 January, 2022
Bench: N. J. Jamadar
sj-28-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUMMONS FOR JUDGMENT NO.28 OF 2021
AND
INTERIM APPLICATION (L) NO.14020 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO.42 OF 2021
VISHAL
SUBHASH Phonographic Performance Limited ...Plaintiff
PAREKAR vs.
Digitally signed by
VISHAL SUBHASH
Reliance Broadcast Network Limited ...Defendant
PAREKAR
Date: 2022.01.06
18:52:05 +0530 Mr. Virendra Tulzapurkar, Senior Advocate a/w. Mr. Sandip Parikh,
Mr. Ayaz Bilawala and Ms. Disha Mehta i/b. Bilawala & Co., for the
Plaintiff.
Mr. Abhishek Malhotra a/w. Ms. Sapna Chaurasia, Mr. Raunak
Samdani i/b. TMT Law Practice, for the Defendant.
CORAM : N. J. JAMADAR, J.
RESERVED ON : 15th NOVEMBER, 2021
PRONOUNCED ON : 6th JANUARY, 2022
(THROUGH VIDEO CONFERENCING)
-------------
ORDER
1. This Commercial Division Summary Suit is instituted for
recovery of a sum of Rs. 1,63,70,640/- along with further interest at
the rate of 12% p.a. on the principal amount of Rs. 1,55,61,382/-
from the date of the institution of the suit till realization.
2. In response to the service of writ of summons, the defendant
entered appearance.
Vishal Parekar, P.A. ...1
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3. Thereupon, the plaintiff has taken out this Summons for
Judgment. The defendant has filed an application seeking leave to
defend the suit. The plaintiff has filed an affidavit in reply to the
application seeking leave to defend the suit.
4. The material averments in the plaint can be summarized as
under:
The plaintiff is a company registered under Companies Act,
1956. It was originally registered as a Copyright Society under the
provisions of Section 33 of the Copyright Act, 1957. The plaintiff
has been granted assignments of Copyright in various sound
recordings by its members for, inter alia, broadcasting through FM
radio channels. The defendant is a radio broadcasting company
operating FM radio stations.
5. The defendant had entered into Voluntary License Agreement
(VLA) for their Phase II FM stations with the plaintiff and has been
using the plaintiff's sound recordings since 2006. On 12 th April,
2018 the plaintiff has executed 1st VLA with the defendant for
broadcast of its repertoire through 44 radio stations run by
defendant in various cities across India. The 1 st VLA was executed
for a term of one year from 1 st April, 2018 to 31st March, 2019,
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under which standard license fee was fixed at Rs. 2,400/- per needle
hour or 20% of net advertising revenue (NAR), whichever was
higher. Another agreement was executed on 12th April, 2018 for 14
other FM radio stations established under Phase III licensing
regime. The license fee payable under 2nd VLA was Rs. 6 lakhs per
month as indicated in schedule III appended thereto.
6. On 11th April, 2019 the parties executed a renewal agreement
seeking to extend the term of 1st VLA for a further period of two
years from 1st April, 2019 to 31st March, 2021 subject to certain
modifications. The renewal agreement provided for a flat rate
towards license fees being Rs. 34 lakhs per month for each radio
station from 1st April, 2019 to 31st March, 2020 and Rs. 35 lakhs
per month exclusive of GST and other levies for each radio station
from 1st April, 2020 to 31st March, 2021. The license fee payable
was in respect of 44 radio station under 1st VLA. Another separate
renewal agreement was executed on 11th April, 2019 in respect of
2nd VLA to extend the arrangement under 2 nd VLA for a period of
two years from 1st April, 2019 to 31st March, 2021. The license fees
was retained at Rs. 6 lakhs per month exclusive of GST and other
levies in respect of radio stations referred to in 2nd VLA.
Vishal Parekar, P.A. ...3
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7. The plaintiff asserts that the defendant abided by the
contractual obligations under the 1st and 2nd VLA and the
corresponding renewal agreements and made the payments against
the invoices raised from April, 2018 to March, 2020. In May, 2020
defendant sought, inter alia, a huge concession of 75% in the license
fee from April, 2020 to September, 2020 on account of the situation
faced by the radio industry due to Covid 19 pandemic. The plaintiff
declined to accede to the request of the defendant. Yet, the
defendant deposited a sum of Rs. 18 lakhs per month as license fee
for the months April, May and June, 2020. The defendant took a
stand that though the contract provided for a lump sum payment,
the understanding between the parties has always been that the
calculation is a close approximation of the 2% rate that has been
decided in 2010 by the Copyright Board and which was likely to be
reviewed. The plaintiff categorically declined to agree with the said
stand of the defendant. There were exchange of correspondence
between the parties. Nonetheless, the defendant continued to
broadcast the plaintiff's repertoire through all 58 radio stations
until the end of September, 2020.
8. Vide communication dated 8th October, 2020 the defendant
claimed that it had stopped playing the plaintiff's repertoire from
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1st October, 2020. Eventually, the plaintiff addressed a legal notice,
contesting legality and validity of the purported termination and
also called upon the defendant to pay the outstanding license fee to
the tune of Rs. 1,58,87,987/- as of 15 th October, 2020 along with
interest @ 12% p.a. Instead of complying with the demand in the
said notice, the defendant raised false and baseless contentions.
Hence, the plaintiff was constrained to institute this suit for
recovery of the sum of Rs. 1,55,61,382/- being an amount of
outstanding license fee, due and payable under 1 st and 2nd VLA, as
modified by the renewal agreements dated 11 th April, 2019, along
with interest @ 12% p.a.
9. The defendant sought an unconditional leave to defend the
suit by raising multi fold defences. First and foremost the tenability
of the suit under the provisions of Order XXXVII of Code of Civil
Procedure, 1908 (the Code) was sought to be questioned. Secondly,
the claim of the plaintiff that the license fee was agreed to be paid in
the lump sum as stipulated in the 1 st and 2nd VLA and renewal
agreements was stated to be incorrect and in complete derogation
of the long standing understanding between the parties as regards
the formula for determination of the license fee. Thirdly, it was
contended that the defendant suffered a sharp decline in the
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revenue in the year 2020. The situation which arose on account of
Covid 19 pandemic has further impacted the advertising revenue
for the radio industry and the situation was unlikely to improve
soon. The defendant further asserts that while executing the 1st and
2nd VLA and the renewal agreements, it was expressly agreed
between the parties that the method and manner of arriving at the
sum payable by the defendant to the plaintiff for all 58 stations
shall be as under:
"a. the relevant executives of the plaintiff and the
defendant would meet, and the defendant's executives
would provide the plaintiff's executives with an
estimate of projected advertisement revenue for the
forthcoming year.
b. the plaintiff and the defendant would then
calculate 2% of the said amount of projected revenue
across all 58 stations to arrive at a mutually agreeable
amount as license fee/royalty for the forthcoming year.
The aforesaid rate i.e. 2% of NAR had been fixed by the
Copyright Board by way of its order dated 25th August,
2010 as the rate of royalty payable to the plaintiff by
radio broadcasters till 30th September, 2020 in
compulsory license applications filed by several radio
broadcasters (detailed para 6.4(a) below).
c. The amount so arrived at would be divided
amongst all the defendant's stations to arrive at a
monthly sum payable by the defendant."
10. The defendant contended that the aforesaid exercise was
mutually agreed to by and between the plaintiff and the defendant
since it addressed the concern of the defendant that the pay-out
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should not exceed 2% of NAR pro-rated to usage and it also
addressed the plaintiff's concern that 2% NAR calculation is not
mentioned in the agreements executed between the plaintiff and
defendant as the order passed by the Copyright Board on 25 th
August, 2010, was challenged before the Madras High Court by the
plaintiff, in appeal bearing No. 3293 of 2010. Adverting to the
outcome thereof and the further orders passed in Special Leave
Petition No. 5727- 5735 of 2011 by the Supreme Court, the
defendant avers that the issue still awaits adjudication before the
Madras High Court. Therefore, as the plaintiff could not openly
accept 2% NAR methodology as a basis for the determination of
license fee payable by the defendant, it was agreed between the
plaintiff and defendant that the rate of royalty agreed to be paid to
the plaintiff would be such that the monthly license fee does not
exceed 2% of NAR. According to the defendant, the fixed license fee
stipulated in the 1st and 2nd VLA and the renewal agreement
adhered to the norm of license fee not exceeding 2% of NAR.
11. The defendant contended that with the substantial reduction
in revenue, the defendant was justified in offering to pay the license
fee @ Rs. 18 lakhs per month. Since the revenue decline faced by the
defendant in the first quarter of 2020-21 was almost 90%, the claim
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of the plaintiff for the fixed license fee, which was far in excess of
the norm of 2% of NAR, was legally unsustainable. Therefore, the
defendant was not liable to pay the amount of license fee, claimed
under the invoices (S1 to S2) annexed to the plaint. Hence, the
defendant be granted unconditional leave to defend the suit.
12. In the affidavit in reply filed on behalf of the plaintiff, the
contentions raised on behalf of the defendant were sought to be
controverted. The plaintiff avers that the parties were fully
cognizant of the orders passed by the Copyright Board on 25 th
August, 2010 under section 31 of the Copyright Act, 1957 and, yet,
consciously agreed to fixed license fee regime. Therefore, the
defendant cannot draw any mileage from the order passed by the
Copyright Board and the proceedings which arose therefrom.
13. In the backdrop of the aforesaid pleadings, I have heard Mr.
Virendra Tulzapurkar, learned Senior Advocate, and Mr. Abhishek
Malhotra, learned counsel for the defendant at some length. The
learned counsel for the parties have taken me through the
pleadings and the 1st and 2nd VLA and the renewal agreements and
the correspondence exchanged between the parties.
14. Mr. Tulzapurkar, learned senior counsel for the plaintiff,
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submitted that the defence sought to be raised by the defendant can
neither be said to be fair nor bonafide. The claim of the defendant
that there was an implied understanding between the parties that
the license fee would be so worked out as not to exceed the norm of
2% of NAR fixed by the Copyright Board, in its order dated 25 th
August, 2010, is not at all borne out by the express terms of the
contract between the parties. On the contrary, it was specifically
recorded in the 1st and 2nd VLA that in the event any order is passed
in the statutory appeals pending before the Madras High Court, the
parties would mutually renegotiate the license fee for the remaining
term of the license period of the said agreements. Mr. Tulzapurkar
would thus urge that the aforesaid stipulation worked out
retribution of the contention of the defendant that there was an
implied understanding between the parties that the license fee
would not be in excess of 2% of NAR.
15. Taking the Court through schedule II, appended to 1 st VLA,
wherein the license fee was fixed at Rs. 32 lakhs per month
exclusive of GST and other levies, and schedule III, appended to the
2nd VLA, wherein license fee was fixed at Rs. 6 lakhs per month
exclusive of GST and other levies, Mr. Tulzapurkar, submitted that
the defence of implied understanding between the parties is
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frivolous and moonshine. The said fact is reinforced by the
execution of first renewal agreement on 11th April, 2019 under
which the license fee in respect of 1 st VLA was revised to Rs. 34
lakhs from 1st April, 2019 to 31st March, 2020 and Rs. 35 lakhs
from 1st April, 2020 to 31st March, 2021, in addition to GST and
other levies.
16. In any event, according to Mr. Tulzapurkar, since the
defendant has agreed and in fact paid the license fee at the rate of
Rs. 18 lakhs per month, the said amount of fee constitutes an
admitted liability and, therefore, a decree be passed in respect of
the license fee at the admitted rate of Rs. 18 lakhs per month up to
the period of September, 2020 and the defendant be granted
conditional leave to defend the suit subject to deposit of the balance
amount.
17. In opposition to this, Mr. Malhotra, learned counsel for the
defendant, would submit that in the backdrop of controversy over
the entitlement of the plaintiff to collect amount in excess of 2% of
NAR, towards the license fee, in the face of the order of Copyright
Board, appeal against which is still subjudice, the defence raised by
the defendant cannot be said to be either frivolous or moonshine.
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18. In essence, the legality of the claim in excess of maximum
percentage of royalty fixed by the Copyright Board, warrants
determination. Thus, according to Mr. Malhotra, the question of
entitlement cannot be decided only on the basis of agreements
executed between the parties. The understanding between the
parties and the attendant circumstances must enter into the
judicial verdict. Mr. Malhotra would further urge that it is a
common knowledge that Covid 19 pandemic had a devastating
consequences across sectors and industries. In the circumstances,
the offer made by the defendant to pay the sum of Rs. 18 lakhs per
month by ways of license fee in the exigency of the said situation
can only be said to be bonafide and reasonable. However, the
defendant cannot be bound down by the said payment, as if the
defendant thereby admitted the liability.
19. Evidently, there is no controversy over the execution of the 1 st
and 2nd VLA. Nor the execution of the renewal agreements is in
dispute. The controversy essentially revolves around the rate at
which the license fee was to be paid by the defendant to the plaintiff
for the use of the sound recordings, in which the plaintiff claims
copyright. It is not the case that there was no stipulation in the
contract executed by and between the parties regarding the amount
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and periodicity of the payment of license fee. The defendant,
however, contends that the amounts so fixed under 1 st and 2nd VLA
as well as the renewal agreements was with a clear understanding
that the outer limit would be 2% of the NAR.
20. In order to properly appreciate the controversy, in the light of
the aforesaid submission canvassed across the bar, it may be
apposite to note as to what the parties provided for in the contract
executed by and between them. In the 1st VLA, (in respect of 44 FM
station), Clause 4 dealing with license fee provided as under:
4. LICENSE FEE:
4.1 Standard License fee:
The standard license fee of the Licensor is as follows
irrespective of the class of cities:
Rs. 2,400/- per needle hour or 20% of net
advertising revenue whichever is higher.
4.2 Applicable License Fee:
Licensee has represented to Licensor that (I) the
radio industry advertisement revenue is under pressure
and going through difficult and challenging times; (2) in
life with listener expectations and advertisers'
expectations, the Licensee is intending to increase the
air-time for new songs as compared to "retro" songs. (3)
Licensor has represented to the Liensee that Eros
Multimedia music label has ceased to be a member of
Licensor w.e.f.1.4.2016.
4.3 After discussions and concurrence, Licensee agrees
to pay for the term of this Agreement, to the Licensor fee
as specified in Schedule II hereto.
4.4 License fee shall be payable in Indian currency and
be paid by way of demand draft/ Account Payee Cheque/
NEFT/RTGS/Post Dated Cheques.
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4.5 The License Fee exclusive of any GST, Lease Tax
and/or other such taxes as may be levied on the license
Fee payable, by any government authority and
regulations. All taxes, duties, or other similar payments
and the increase in taxes shall be borne by the Licensee
and is neither deductible nor reimbursable by the
Licensor who shall be responsible solely for his income
related taxes, the payment made by the Licensee to the
Licensor shall be net of any applicable withholding taxes
and the Licensee shall supply to the Licensor the
withholding tax receipts evidencing payments of
withholding tax, within 3 months from the date of
deductions.
4.6 Both the parties have mutually agreed to enter into
this Voluntary License Agreement. Hence, in the event
any order is passed in the Statutory Appeals pending
before the Madras High Court the parties agree to
mutually re-negotiate the Licensee Fee for the remaining
term of the License period of this agreement. Parties
agree that the re-negotiation of the License Fee shall
totally depend on Party's discretion.
4.7 Late Payment Charges:
If any payment to the Licensor hereunder is not
received on the due date, interest at the rate of 12% per
annum shall be payable by the Licensee on the sum due
compounded with quarterly rests calculated from the
due date until the date of actual payment, Licensee shall
pay the amount within 10 days of receipt of intimation/
debit note from the Licensor. This is without prejudice to
the right of the Licensor to terminate the License as per
clause 5.
Notwithstanding the foregoing, upon consecutive 3
delays in making full payment on a timely basis,
Licensor is at liberty, after giving a prior notice of 48
hours (emails permitted), to terminate the Agreement,
upon which the Licensee shall forthwith cease broadcast
of the licensed repertoire, and if the Licensee fails to
cease broadcast of the licensed repertoire within 48
hours of such termination, it shall be copyright
infringement.
21. It would be contextually relevant to note that Schedule II
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appended to 1st VLA fixed the amount of license fee at Rs. 32 lakhs,
exclusive of GST and other levies, and further provided as under:
Schedule II
License fees in respect of all stations under this License
Agreements are agreed at Rs. 32 lakhs per month. GST
and other levies, if any, extra, PPL shall raise invoices
on every calendar month end and the same shall be paid
on or before the last day of the following month,
irrespective of the date of PPL's invoice; for example,
payment for the broadcast in April, 2018 shall be paid,
under any and all circumstances, by 31.5.2018. Any re-
scheduling of the launch of stations or any other event
shall not constitute a ground for reduction or re-
negotiation of this amount. This fee is a one-off rate and
does not set any precedent for future.
22. The second VLA (in respect of 14 FM stations) contained
identical provisions with the change that the standard license fee
and the applicable license fee were provided in schedule II and III
appended thereto. They read as under:
Schedule II
Phonographic Performance Ltd., Mumbai
TARIFF FOR PRIVATE F.M. RADIO PHASE 3
BROADCASTING in respect of PPL sound recordings:
(1) Tariff : For metro cities: Rs. 750/- per needle hour.
For non-metro towns. Rs. 650/- per needle hour.
(2) Refundable, non- interest bearing security deposit of
Rs. 1 (one) lacs per station.
Note : Above rates are valid upto 31.3.2019 and are
subject to revision thereafter. Above rates already
incorporate "early-bird" concession for newly set up
Phase 3 FM radio stations.
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Schedule III
License fees in respect of all stations in respect of this
licence are agreed at Rs. 6 lakhs only per month. GST
and other levies, if any, extra, PPL shall raise invoices
on every calender month end and the same shall be paid
on or before the last day of the following month,
irrespective of the date of PPL's invoice; for example,
payment for the broadcast in April, 2018 shall be paid,
under any and all circumstances, by 31.5.2018. Any re-
scheduling of the launch of stations or any other event
shall not constitute a ground for reduction or re-
negotiation of this amount. This fee is a one-off rate and
does not set any precedent for future.
23. The 1st VLA was renewed by the renewal agreement dated
11th April, 2019 and the license fee was revised in terms of
annexure II thereto, which read as under:
Annexure II
License fees for the term of this Agreement in respect of
all stations are agreed as follows:
(i) For the period beginning from the 1 st April, 2019 to
31st March, 2020 the license fee is payable at the rate of
Rs. 34 lakhs per month.
(ii) For the period beginning from the 1st April, 2020 to
31st March, 2021 the license fee is payable at the rate of
Rs. 35 lakhs per month.
GST and other levies, if any, extra, PPL shall raise
invoices after every calender month end and the same
shall be paid on or before the last day of the following
month, irrespective of the date of PPL's invoice; for
example, payment for the broadcast in April, 2019 shall
be paid, under any and all circumstances, by 31.5.2019.
Any re-scheduling of the launch of stations or any other
event shall not constitute a ground for reduction or re-
negotiation of this amount. This fee is a one-off rate and
does not set any precedent for future.
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24. The 2nd VLA was renewed by another renewal agreement
dated 11th April, 2019 and license fee was retained at Rs. 6 lakhs
per month with the following provision in Annexure II.
Annexure II
License fees for the term of this Agreement in respect of all
stations are agreed at Rs. 6 lakhs per month. GST and other
levies, if any, extra, PPL shall raise invoices after every
calender month end and the same shall be paid on or before
the last day of the following month, irrespective of the date of
PPL's invoice; for example, payment for the broadcast in April,
2019 shall be paid, under any and all circumstances, by
31.5.2019. Any re-scheduling of the launch of stations or any
other event shall not constitute a ground for reduction or re-
negotiation of this amount. This fee is a one-off rate and does
not set any precedent for future.
25. Evidently, the parties had agreed for the two types of license
fee. In the 1st VLA clause 4.1 (extracted above) provided, that the
standard license fee of the licensor shall be Rs. 2,400/- per needle
hour or 20% of net advertising revenue whichever is higher. In
addition, the parties agreed that the applicable license fee would
however be as specified in Schedule II (extracted above), under
which the license was to pay Rs. 32 lakhs per month, exclusive of
GST and other levies. This amount of license fee stood revised to Rs.
34 lakhs from 1st April, 2019 to 31st March, 2020, and Rs. 35 lakhs
from 1st April, 2020 to 31st March, 2021, under the renewal
agreement. Under 2nd VLA agreed standard license fee was Rs.
750/- and Rs. 650/- per needle hour for metro cities and non-metro
towns, respectively, along with interest free security deposit of Rs.
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1 lakh per station, which was refundable. The applicable license fee
under the second VLA was capped at Rs. 6 lakhs per month
excluding GST and other levies. Under the renewal agreement, the
said amount of license fee remained unchanged.
26. In the backdrop of the aforesaid express stipulations in the 1 st
and 2nd VLA and renewal agreements, the submission on behalf of
the plaintiff that the parties had expressly agreed for payment of
lump sum license fee appears factually impeccable. As observed
above, the agreements envisaged two regimes; one, the standard
license fee, and two, the applicable license fee. It is trite that in the
matter of construction of commercial contracts, the Court has to
construe the terms of the contract as borne out by the stipulations
therein and the intention of the parties to be gathered therefrom.
What assumes significance, in the facts of the instant case, is an
indisputable position that the obligation as regards the payment of
license fee, was adhered to by defendant from April, 2018 to March,
2020. It can not be urged that defendant understood the contract to
be otherwise and the parties had not acted upon the contract.
27. Evidently, the trigger for the dispute seems to be the decline
in the revenue generated by the radio industry, in general, and the
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defendant, in particular. Consequent thereto, the defendant sought
reduction in the license fee. Mr. Tulzapurkar was justified in
advancing the submission that in Schedule-II appended to 1 st VLA
and the Schedule III appended to 2 nd VLA as well as the renewal
agreements, it was expressly agreed that "any re-scheduling of
launch of stations or any other event shall not constitute a ground
for reduction or re-negotiation of the amount of license fee". It is
trite that in any commercial contract, on account of certain
developments, foreseen or otherwise, decline in the revenue
generated by a party is essentially a matter of risk in the business.
Thus, decline in revenue per se cannot be a ground to relieve a
party of its contractual obligations.
28. Nonetheless, the submission on behalf of the defendant
linking the quantum of license fee with the percentage of the net
adverting revenue (NAR) cannot, be said to be wholly irrelevant or
unfounded. Indisputably, the Copyright Board had passed an order
on 25th August, 2010 on the application under section 31(1)(b) of
the Copyright Act, 1957, inter alia, directing the Registrar of
Copyright to grant the complainants separate licences for
communicating the work recorded in sound recordings in the
repertoire, present and future, of the respondent therein (plaintiff
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herein) to the public by broadcast on revenue sharing basis subject
to certain terms and conditions. Clause (a) thereof, which is
material, reads as under:
(a) 2% of net advertisement earnings of each FM radio
station accruing from the radio business only for that
radio station shall be set apart by each complainant for
pro rata distribution of compensation to all music
providers including the respondent herein in proportion
to the music provided by the respective music providers
and broadcast by the complainant. Complainant shall be
deemed to be a music provider for the music provided by
it or received by it free of cost and broadcast. For
arriving at "net advertisement earnings", all
Government and municipal taxes paid, if any, and
commission paid towards the procurement of such
advertisements to the extent of 15% of such
advertisement earnings shall be excluded.
29. Indubitably, the Madras High Court refused to stay the
execution and operation of the aforesaid order and the statutory
appeals are still subjudice.
30. The fact that in the 1st and 2nd VLA, the parties had expressly
adverted to those statutory appeals pending before the Madras
High Court and further agreed to mutually renegotiate license fee in
the event any order was passed in those statutory appeals, cannot
also be lost sight of. Whether the order passed on application under
section 31, which apparently deals with compulsory license,
governs the case of voluntary licensing agreement is one of the
questions which may crops up for consideration.
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31. However, in the face of express stipulation as to payment of
license fee, in the contract executed by and between the parties, the
defence sought to be raised on behalf of the defendant of existence
of an implied understanding to determine the amount of license fee,
does not merit categorization of a 'substantial or strong' defence.
Moreover, there is no qualm over the fact that the defendant
discharged the contractual obligation upto March, 2020, and
continued to enjoy the repertoire of the plaintiff till 30 th September,
2020.
32. In this view of the matter, though the defendant can be said to
have raised an issue as regards the legality of the levy of license fee
in excess of the percentage of NAR stipulated by the Copyright
Board in the matter of compulsory licensing, yet the defendant does
not deserve an unconditional leave to defend the suit.
33. In the circumstances, it would be expedient in the interest of
justice to grant leave to defend the suit subject to condition of
deposit of principal amount of license fee claimed under invoice (S1
to S12) as particularized in the particulars of the claim (T). In my
view, it may be appropriate to leave the matter of entitlement to
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interest on the said amount for trial.
Hence, the following order:
ORDER
1] Leave to defend the suit is granted to the Defendant subject to
deposit of the sum of Rs. 1,55,61,382/- in this Court within a period
of six weeks from today.
2] If the aforesaid deposit is made within the stipulated period,
this suit shall be transferred to the list of Commercial Causes and
the Defendant shall file written statement within a period of six
weeks from the date of deposit;
3] If this conditional order of deposit is not complied with, within
the aforesaid stipulated period, the Plaintiff shall be entitled to
apply for an ex-parte decree against the Defendants after obtaining
a non-deposit certificate from the Prothonotary and Senior Master
of this Court.
4] Summons for Judgment stands disposed of in the aforesaid
terms.
(N. J. JAMADAR, J.)
Vishal Parekar, P.A. ...21
