Reoti Saran Sharma vs Numero Uno Internation And Ors.
1995 Latest Caselaw 378 Del

JUDGMENT

N.G. Nandi, J.

(1) The plaintiff seeks relief of ad interim injunction pending hearing and disposal of the suit under Order 39 Rule 1 & 2 Civil Procedure Code on the averments in the plaint that the plaintiff has been writing plays, dialogues, story lines and is a member of National Juries for Film & Radio Awards; that defendant No.1 is a sole proprietory concern of defendant No.2 who is a well known film actor, producer and director in the film industry; that defendant No.2 earlier produced and directed T.V. Serial "THE Sword Of Tipu SULTAN". Thereafter, defendant No.2 embarked upon the idea of producing another Tv serial with the banner "THE Great MARATHA"; that on this occasion, defendant No.2 invited the plaintiff to his office at Bombay for discussion; that the plaintiff entered into an agreement with defendants 1 & 2 on 1.10.1993, which is reproduced in the plaint; that according to the contract, the plaintiff started rendering his services of writing dialogues on the basis of the story and the script provided by the defendants. up to July, 1994, the plaintiff wrote the dialogues/script up to episode No.38. Thereafter, as desired by defendant No.2, the plaintiff started providing story line scripts on the basis of his research and dramatic sequences. The story lines provided by the plaintiff were used by the defendants up to the episode No.43 approximately; that the dialogues and the words spoken by the characters in the serial were written by the plaintiff. It is upon the literary excellence of the dialogue writer that the characters become alive; that defendants failed to keep their obligation by making the payment for the works done by the plaintiff, even after the episodes were telecast. That defendants, in all, made total payments of Rs.2,30,000.00 to the plaintiff which is equivalent to the fee for 11 and half episodes. The plaintiff accordingly wrote the dialogues up to the `Victory of Mathura by the great Maratha Mahadji Scindia and the story line script up to the Shaha Alam's return to Delhi'; that the defendants fully exploited the plaintiff by giving promises to pay the plaintiff his dues by August, 1994; that copy right, however, continued to remain with the plaintiff since there was no assignment due to the lack of consideration. That the plaintiff was shocked to receive a letter dated 5.9.1994 whereby the services of the plaintiff, in relation to tele serial "THE Great MARATHA" were terminated with immediate effect. Defendants 1 & 2 made baseless and unfounded allegations against the plaintiff of desertion of serial and unprofessional and unethical behavior. That defendants, by the said letter, did not mean to honour their commitments under the contract dated 1.10.1993. That defendants have given credit to the plaintiff as being the dialogue writer in each of the episodes up to the telecast of 27 episodes. The dialogues, script written by the plaintiff, were illegally used episode after episode and the defendants continued to acknowledge the same by giving credit to the plaintiff in the title as the dialogue writer up to the episode telecast till 17.11.1994 being episode No.38 though, by inserting the name of Mohafiz Haider as co-dialogue writer, which was a serious infringement and dilution of his copy right. That because of the breach and termination of the agreement and as the plaintiff had been paid only in respect of 11 and half episodes, defendant did not acquire or become vested with copy right in works created by the plaintiff in his dialogues and story line scripts. That agreement dated 1.10.1993 was merely an agreement to assign the copy right on receiving consideration thereof. The literary work of the plaintiff has not come into existence when the said agreement had been entered into nor the plaintiff had been paid in advance for his entire contracted work. That the assignment of copy right as contemplated in the agreement dated 1.10.1993 was to take effect only when the plaintiff would create the literary work and the defendants would pay remuneration to the plaintiff @ Rs.20,000.00 per episode. That the plaintiff is no longer bound by the agreement dated 1.10.1993 and in view of the breach and the subsequent termination of the contract by the defendants, the defendants were not entitled to, in any way, use or exploit the literary work done by the plaintiff in relation to the serial "THE Great MARATHA", particularly, his dialogues and the story line scripts, since the exclusive rights in the same vested in the plaintiff. In substance, the say of the plaintiff, as far as the relief under Order 39 Rules 1 & 2 Civil Procedure Code is concerned, is that there is no assignment of copy right in favor of the defendants by the plaintiff beyond first eleven and half episodes as he has not been paid for the episodes thereafter and prays for ad-interim injunction, pending the suit in terms of paras (a), (b) and (c) of the application.

(2) As against this, defendants 1 & 2 filed application under Rule 4 of Order 39 Civil Procedure Code being I.A. No. 3553/95, inter-alia contending, that the plaintiff came to this court with unclean hands and has concealed material facts and has misled the court in granting ex parte ad interim injunction. That the agreement executed between defendant No.1 and the plaintiff on 1.10.1993, would show that the plaintiff had made a full grant of copy right in his works to defendant No.1; that this court has no jurisdiction to try and entertain the suit because no cause of action has arisen in Delhi as the agreement was signed at Bombay and the serial is now being telecast by channel Iv, which is the company registered and constituted in U.K. That it is a simple suit for recovery of money and the plaint, as such, is liable to be rejected under Order 7 Rule 11 Civil Procedure Code on the grounds that the plaintiff in the guise of proceedings for breach of copy right is seeking to extract money allegedly as balance amount due to him from defendant No.1. That there could be no stay granted against telecast of tele serial since the claim is only for the damages. That the suit, as framed, is liable to be dismissed since the telecast of tele serial on metro channel of Doordarshan has already completed. That the balance of convenience is not in favor of the plaintiff and this is a simple dispute relating to settlement of account, which can only be done after necessary evidence is recorded. That there can never be conditional assignment of copy right; that paragraph 2 in the agreement would show that the plaintiff has assigned the copy right in the works in its entirety to defendant No.1. The copy right can either vest or it does not. It is an incontrovertible fact that at the time the plaintiff brought this proceeding, the telecast of the serial "THE Great MARATHA" on Metro Channel of Doordarshan had already been concluded. That the suit is barred by delay, latches and acquiescence in as much as the telecasting of the serial has already been completed in India and no such demand was raised or made by the plaintiff on the defendants while the serial was being telecast. That in the plaint and in the application, it is concealed by the plaintiff that the copy right of the said work had already been assigned in favor of defendant No.1. As a matter of fact, the plaintiff has been paid a sum of Rs.20,000.00 per episode as provided by the aforestated agreement executed between the plaintiff and defendant No.1. On this averments, defendants 1 & 2 pray for vacating/setting aside/discharge of ex parte ad interim injunction granted in favor of the plaintiff.

(3) The question, which requires prima-facie consideration is whether the agreement dated 1.10.1993 created reciprocal promises to be performed as submitted by Mr. Rohtagi or that the said agreement is a complete/unconditional/unequivocal assignment of the copy rights with regard to the work/services by the plaintiff, as submitted by Mr. Shankardass for defendant No. 1 & 2.

(4) Section 18 of the Copy Right Act deals with the assignment of the copy right. What is contemplated by Section 18 is that the owner of the copy right in an existing work or the perspective owner of the copy right in a future work, may assign to any person, the copy right, either whole or partial fofthe and either generally or subject to limitation and either for the whole term of the copy right or any part thereof, provided that in the case of assignment of copy right and in any future work assignment shall take effect only when the work is in existence.

(5) It is suggested from the provisions contained in Section 19 that the assignment could only be in writing and signed by the owner of the copy right i.e. assignor.

(6) The law relating to reciprocal promisesis, to be found in Section 51 of the Indian Contract Act, provides that when a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promise is ready and willing to perform his reciprocal promise.

(7) In the submission of Mr. Rohtagi, as the defendants failed to perform their part of obligation, viz. payment @ Rs.20,000.00 for each episode and the defendants having terminated the agreement by letter dated 5.9.1994, the plaintiff is relieved from his obligation and the defendants cannot use or utilise the work of the plaintiff for the unpaid episodes.

(8) The agreement dated 1.10.1993 is admittedly signed by defendant No.2 for defendant No.1 and also signed by the plaintiff. The relevant portion thereof reads as follows :-    "THIS is to confirm our agreement whereby you have agreed to supply your services to this company as Writer for a consolidated fee of Rs.20,000.00 (Rupees twenty thousand only) per episode.  

(9) The commencement and provisions of your services shall, further, be on the basis :    (1)XXXXxxxx (2)All rights and property in your services and related products shall remain the absolute property and copyright of this company. (3)You will not order any goods or services without prior written authority of the Producer or the Production Manager. (4)xxxx xxxx (5)xxxx xxxx (6)xxxx xxxx (8)xxxx xxxx (9)This agreement is exclusive to this serial and shall stand terminated upon release of the serial."  

(10) The first part of the agreement, as reproduced above, suggests the payment of Rs.20,000.00 per episode for the supply of services by the plaintiff to defendant No.1. As seen above, it is also provided in the agreement that commencement and provisions of plaintiff's services would be on the basis whereby all rights and property in plaintiff's services and related products shall remain the absolute property and copy right of defendant No.1 company.   

(11) In the say of the plaintiff, the first part, viz. payment of Rs.20,000.00 per episode controls the vesting of the absolute property right and copy right in favor of defendant No.1 company.   

(12) The first part of the agreement as reproduced above, merely suggests that the payment would be @ Rs.20,000.00 per episode, so the plaintiff would be entitled to Rs.20,000.00 per episode for the supply of his services to defendant No.1. By providing a separate clause in the agreement, viz. clause (2), as reproduced above, it is stated that all rights and property in plaintiff's services and related products shall remain the absolute property and copy right of defendant No.1. It is pertinent to note that vesting of the rights and property in plaintiff's services, is not made dependent or conditional on payment of Rs.20,000.00 per episode meaning thereby that Rs.20,000.00 per episode is not made payable as and when the episode is delivered to defendant No.1 by the plaintiff. Had that been so, then the copy rights and property in services of the plaintiff would vest in defendant No.1 episode wise on payment at the delivery of each of episode. All that could be said is that under the agreement for every episode, defendant No.1 would be liable to pay Rs.20,000.00 not necessarily payable at the time of delivery of every episode but for the entire services or all the episodes given by the plaintiff @ Rs.20,000.00 defendant No.1 would be liable to pay to the plaintiff. In other words, the vesting of rights and property in the plaintiffs services is not made dependant or subject to the payment episode wise. The agreement does not provide that all the rights and property in plaintiff's services and related products shall vest in defendant No.1 company on payment of Rs.20,000.00 episode wise. Had that been so, it can be said that there is substance in the submission of the plaintiff in this behalf.

(13) As pointed out above, it can not be said prima-facie, looking to the language employed in the agreement that it is a case of reciprocal promises in the sense that defendants would be required to perform his promise or obligation under the agreement and then the plaintiff would be required to perform his promise or the obligation under the agreement. All that could be prima-facie said, is that under the agreement, defendant No.1 would be required to pay Rs.20,000.00 per episode for the supply of services by the plaintiff for whatever number of episodes, for which the service is rendered by the plaintiff and all rights and property in plaintiff's services fsamne and related product shall remain the absolute property and copy right of defendant No.1 for the reason that according to the plaintiff, he has been paid Rs.2,30,000.00 which would cover the payment @ Rs.20,000.00 per episode for 11 and half to 12 episodes. Even thereafter, the plaintiff has supplied dialogues and story line scripts up to 35 episodes according to defendant No.1, which fact is disputed and the number of episodes, for which the plaintiff rendered his services, is a matter of evidence. That apart, the fact remains that even after 11 and half or 12 episodes the plaintiff has rendered services and defendants have utilised the work and services of plaintiff without payment for number of episodes whatever be the number. Thus, it prima-facie appears that the payment @ Rs.20,000.00 per episode under the agreement is one thing and all rights and property in plaintiff's services and related products remaining the absolute property and copy right of defendant No.1 is another matter, though the same flow from the same agreement, but independent of each other. Looking to the language employed in agreement and the conduct of plaintiff, as well as defendants 1 & 2, even up to 11 and half to 12 episodes, and the episodes subsequent thereto, namely, up to 35.

(14) It has been the say of the plaintiff that by letter dated 5.9.1994, defendants 1 & 2 have unilaterally terminated the contract faddressedand committed breach of contract for the reasons different than the reasons assigned in the pleadings, viz. inferior quality of services rendered by the plaintiff. It is suggested from the letter dated 5.9.1994, addressed by defendants 1 & 2 to plaintiff, informing that his services as a writer for defendant's serial "THE Great MARATHA" have been terminated with immediate effect for desertion from the serial and for unprofessional and unethical behavior. It has been the say of the plaintiff that even after the letter dated 5.9.94, the defendants have utilized/exploited the work of plaintiff and how could defendants do that after terminating the contract? It may be appreciated that prior to letter dated 5.9.94, plaintiff has delivered the dialogues up to 35 episodes and thereafter up to 43 episodes, the story line script. It is not the say of the plaintiff that after the letter dated 5.9.94, he has rendered services by writing dialogues and providing story line scripts but whatever services or work rendered by the plaintiff, that was all before 5.9.94. It has been stated in para 12 of plaint that by the time termination letter was issued, defendants 1 & 2 telecast 27 episodes of tele serial "THE Great MARATHA" and the defendants had given credit to the plaintiff as being the dialogue writer in each of these episodes. It is pertinent to note that telecast of serial "THE Great MARATHA" on Doordarshan was over prior to filing of the suit on 23.3.1995. Even after 27th episode by which time the plaintiff'sservices were terminated by letter dated 5.9.1994, till the serial was completed and telecast on Doordarshan was over, the plaintiff does not tell defednants 1 & 2 that they have no right to utilise the plaintiff's work, viz. dialogues and story line scripts as there is no assignment for the works rendered for unpaid episodes. Rather, the plaintiff allowed defendants 1 & 2 to utilise his work of dialogues and story line scripts even after the non payment of services for episode i.e. beyond episode No.12 and termination of his services by letter dated 5.9.1994. It is difficult to reconcile with this conduct of the plaintiff and the arguments advanced on this score by Mr. Rohtagi appear inconsistent with the conduct of the plaintiff. This would, prima-facie, suggest that the payment @ Rs.20,000.00 per episode had nothing to do with the vesting of copy right in the defendants which would, in other words, suggest that it is not a case of reciprocal promises as suggested by Mr. Rohtagi but the rights and obligations under the agreement are independent of each other and it, prima-facie does not appear that the copy right of plaintiff has been infringed by defendants 1 & 2 for the reasons aforestated for the works/services rendered by the plaintiff not against the delivery of episodes since the right of plaintiff under the agreement, prima-facie, appears to be the amount @ Rs.20,000.00 per episode for the number of episodes he has rendered his services.

(15) A mere agreement to assign does not operate to pas the property right but gives equitable rights i.e. it operates as an equitable assignment of copy right as and when the work comes into existence. In the instant case, by clause (2) of the agreement dated 1.10.1993, all rights have been assigned by plaintiff to the defendants. The episodes were written and story line scripts provided from time to time.

(16) One of the arguments advanced by the defendants, is that this court has no jurisdiction to try and entertain the suit as the contract has been executed and entered into at Bombay. It may be seen that Section 62 of the Act deals with the jurisdiction of the court over matters arising under the Act. Sub- section (2) thereof provides that for the purpose of sub-Sec(1) a "District Court having jurisdiction", shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding,the person instituting the suit or other proceedings or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.

(17) In the instant case it is not disputed that the plaintiff is actually and voluntarily residing in Delhi or that he has been personally working for gain at Delhi. This provision is a sort of departure from the provisions of Section 20 Civil Procedure Code for the purpose of jurisdiction. Anyway, it prima-facie appears that as the plaintiff has been actually and voluntarily residing and has been personally working for gain at Delhi, this court, prima-facie, will have jurisdiction to try and entertain the suit.

(18) One of the argument advanced on behalf of the defendants is that the suit would not be maintainable as the remedy for the plaintiff would be by way of damages and not the injunction, as the telecast of the serial "THE Great MARATHA" has concluded on Doordarshan. The say of Mr. Rohtagi in this regard is that after the future work, viz. the telecast on Channel Iv, by defendant No.3, suit for injunction would lie as the defendants have infringed the plaintiff's copy right by not discharging his obligation under the contract whereas the suit would lie for damages only with regard to the Act already done i.e. the telecast in India of the serial on Doordarshan. Relying on Section 55 of the Act, it is contended that suit for damages and injunction would be maintainable.

(19) It may be appreciated that plaintiff has rendered his services by giving dialogues and story line scripts. The dispute is about the number of episodes, for which the plaintiff rendered his services. It is the admitted position that the defendants have paid Rs.2,30,000.00 to the plaintiff, which would cover the payment for 11 and half to 12 episodes @ Rs.20,000.00 per episode as per the agreement dated 1.10.1993. As far as utilising the plaintiff's work and services is concerned, the entire serial has been shot and telecast on Doordarshan in India with the services of plaintiff as dialogues writer and story line scripts up to a particular number of episodes. It appears that in the later part, the services of one Muhafiz Haider were requisitioned by defendants and the serial was got completed with services/works supplied by him. That even according to the plaintiff, the work/services rendered by the plaintiff for whatever number of episodes, have been fully utilized and used by shooting the entire serial and telecasting the same on Doordarshan and now nothing remains to be done as far as the telecast of serial in India is concerned. It is now, according to the plaintiff, to be shown in some other country through defendant No.3 on Channel Iv by assigning or selling rights over this Tv Serial by defendants 1 & 2. It may be appreciated that whatever was required to be done by defendants 1 & 2 as far as work and services rendered by plaintiff is concerned, has been completely done and the same was telecast on Tv and the telecast concluded somewhere in December, 1994. Now, that very work or services rendered by the plaintiff would be shown in foreign countries through defendant No.3 by selling the rights over the Tv serial by defendants 1 & 2. Thus, what remains is the telecast of serial in foreign countries after the same having been fully telecast in Indian territory. It is not that the services/work of plaintiff remains to be utilised firstly by shooting the serial incorporating the dialogues in serial by dubbing the same through various characters in serial. In my, prima-facie, view the work/services rendered by the plaintiff, have been fully utilised and used by defendants and it is now a matter of showing the same video cassette in some foreign countries through defendant No.3. I put a question to myself that if Tv serial "THE Great MARATHA" is not to be shown in foreign countries through defendant No.3 in Channel Iv by selling the rights of this serial by defendants 1 & 2 and if the defendants had remained contented with telecasting of serial in India through Dd Metro Channel, then can it be said that for something to be done in future, the defendants be restrained by injunction? The answer would be obviously in the negative. Thus all that could be said is that as far as the utilising of the plaintiff's work/services is concerned, nothing remains to be done by defendants 1 & 2 and the works/services have been fully utilised for the purpose of making the serial and thereafter telecasting the same on Dd Metro channel.

(20) As observed above, there is no infringement, prima-facie, of copy right of the plaintiff for the reasons assigned earlier and so there can be no question of issuing any injunction against the defendants since the remedy for the plaintiff, under the circumstances, would be by way of damages as the things have been fully accomplished and the plaintiff having quantified the damages by seeking monetary relief in the plaint.

(21) In my opinion, apart from want of prima-facie case on behalf of the plaintiff for grant of injunction, it can not be said that refusal to grant of injunction to the plaintiff would result into irreparable injury to the plaintiff, which can not be adequately compensated by damages.

(22) The above discussion would reveal that the plaintiff has not made out prima-facie case for grant of equitable relief of ad interim injunction and the plaintiff would, therefore, be not entitled to the injunction under Order 39 Rules 1 & 2 Civil Procedure Code and the I.A. would be liable to be dismissed and the ex parte injunction granted vide order dated 24.3.1995 liable to be vacated.

(23) I.A. No. 2645/95 stands dismissed whereas I.A. No. 3553/95 stands allowed and the ex parte injunction dated 24.3.1995 is vacated. Ordered accoprdingly. Cost to be in the cause.