Super Cassettes Industries Ltd vs Punit Goenka & Anr.
2009 Latest Caselaw 2327 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+           FAO(OS) 167/2009 & CM 6299/2009

SUPER CASSETTES INDUSTRIES LTD....Appellant through
                                 Mr.Dushyant Dave, Sr.
                                 Adv. with Mr. Jagdish
                                 Sagar & Mr. K.K.
                                 Khetan, Advs.
             versus

PUNIT GOENKA & ANR.                  ....Respondent through
                                       Mr. Harish Salve, Sr.
                                       Adv., Mr. Rajiv Nayyar,
                                       Sr. Adv. with
                                       Ms. Pratibha M. Singh
                                       &      Mr.      Sudeep
                                       Chatterjee, Advs.

%                      Date of Hearing : May 11th, 2009

                       Date of Decision : May 29th, 2009

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE RAJIV SHAKDHER
      1. Whether reporters of local papers may be
         allowed to see the Judgment?               Yes
      2. To be referred to the Reporter or not?     Yes
      3. Whether the Judgment should be reported
         in the Digest?                             Yes

VIKRAMAJIT SEN, J.

1. This Appeal assails the Order of the learned Single Judge

passed on 30.4.2009. At the very commencement of the Order,

the learned Single Judge has firstly granted the request made

on behalf of the Defendants for filing the Written Statement as

well as the Reply to the Application under Order XXXIX Rules 1

and 2 of the Code of Civil Procedure, 1908 ('CPC' hereinafter)

within two weeks. Secondly, having done so, and briefly

considering the submissions made by learned counsel for the

parties, the learned Single Judge has ordered the Defendant to

deposit the outstanding or unpaid amount of royalty due for the

previous year, together with Rupees Four crores, as a security

amount for the continued usage of the copyrighted work.

Thirdly, the learned Single Judge has ordered for the

maintenance of accounts separating the usage of the works

involved in the proceedings pending before him. It is this Order

which has been assailed before us. A perusal of the

Memorandum of Appeal will show that the gravamen of the

Appellant's case is that the learned Single Judge should have

granted an ex parte ad interim injunction restraining the

Defendants from using the subject copyrighted material. In our

view, this is not the norm prescribed by law.

2. Order XXXIX of the CPC lays down in Rule 1 the

circumstances in which a temporary injunction can be passed; it

does not speak of an ex parte ad interim injunction. This is also

the position as regards Rule 2 of Order XXXIX of the CPC,

which postulates the passing of an injunction to restrain the

repetition or continuance of the breach of a contract. In the

present case, prima facie, no contract has been breached for the

reason that the fulcrum of the Appellant's argument is that

since the parties have failed to reach any agreement on the

lump sum price payable by the Defendants to the Plaintiff, an

injunction must perforce be granted. The position stands

clarified on a reading of Rule 3 of Order XXXIX of the CPC

which ordains that the Court shall in all cases, except where it

appears that the object of granting the injunction would be

defeated by the delay, before granting an injunction, direct

notice of the application to be given to the opposite party.

Obviously, this is to enable and elicit the response of the

Defendants vis-à-vis the fact of the case and the law applicable

thereto. In the present case, no doubt, an adjournment of one

day had been granted to the learned counsel for the Defendants.

On the following day, submissions pertaining to facts, as well as

to law, were indubitably made before the learned Single Judge

which obviously fortified his view that the injunction prayed for

should not be given without scrutinizing the defence of the

Defendants as would be presented in its Written Statement and

Reply to the Application for injunction. This is a matter

essentially of discretion which ordinarily should not be

interfered with, especially in a precipitate or premature appeal.

3. Mr. Dave, learned Senior Counsel for the Appellant, has

argued that from the correspondence available on the record it

is manifestly clear that the intention of the Defendants was to

delay and dilate the deliberations so that the contract period

would elapse without a fresh understanding being in place. It is

in these circumstances that he has argued that an injunction

must be granted by the Court immediately, because the valuable

proprietary rights of the Plaintiff stand endangered and

jeopardized. He has also submitted that it is not essential or

mandatory that a contract for the entire year must be executed.

The Defendant could also pay in accordance with Rate Card,

that is, on the basis of exactly the number of times the

copyrighted material is used by the Defendant. Mr. Dave has

also taken us through the provisions of the Copyright Act, 1957

which we do not think it proper to analyse in detail at this stage

since it would be improper to influence the thinking of the

learned Single Judge even before he decides the pending

application for temporary injunction. On behalf of the

Defendants it has been contended by Mr. Harish Salve, learned

Senior Counsel for the Respondent, that the dispute stands

concluded in favour of the Defendants in Entertainment

Network(India) Ltd. -vs- Super Cassette Industries Ltd.,

2008(37) PTC 35(SC) : JT 2008(7) SC 11 : 2008(9) Scale 69. For

the same reasons we also think it expedient not to analyse this

precedent threadbare, because of the view we are taking herein.

4. During the hearing of the Appeal, it has transpired that

the Appellants have deposited a sum of Rupees 4,69,00,000/-

with the Registrar-General of this Court in compliance with the

impugned Order dated 30.4.2009. A copy of the Compulsory

Licence Application dated 15.5.2009 filed by Defendant No.2

before the Copyright Appellate Board has also been filed. The

Plaintiff/Appellant has also placed on record a copy of the

Objections filed in response thereto.

5. The sum of Rupees 4,00,00,000/- seems to have been

arrived at, keeping in perspective the contractual payments for

the previous year agreed upon by the two parties. The

impugned Order does not state whether it is for the entire year

or for one month or for one quarter etc. Rupees 69,00,000/-

(approximately) is the amount alleged to be due to the Plaintiff

and payable by the Defendant for the previous contractual year.

6. Viewed in any way, the learned Single Judge has not

jeopardized the interests of the Plaintiff while declining to pass

an interim order. The impugned Order does not dispose of the

application under Order XXXIX of the CPC. That Application, it

is clear, would be decided by the learned Single Judge after the

Defendant files the Written Statement and Reply to the

Application within the period allowed for the purpose, and the

Plaintiff files the Replication and Rejoinder. This procedure

followed by the learned Single Judge is not contrary to the law

and, in fact, is in consonance with the spirit of the law

articulated in Rule 3 of Order XXXIX of the CPC. The present

Appeal has been argued as if it is an Appeal against an Order

deciding an Application under Order XXXIX of the CPC, which,

in our view, is impermissible and improper. It has not been

argued that the learned Single Judge had no alternative but to

grant an ex parte ad interim injunction pending disposal of the

Application. Assuming that such an argument had been raised,

we would be unable to hold in favour of the Appellant since, in

our view, the learned Single Judge has balanced the equities

between the parties as he has expressed in so many words.

7. Mr. Dave has vociferously contended that the learned

Single Judge had erred in directing the amount of Rupees

4,69,00,000/- to be deposited with the Registrar-General of this

Court. It is his submission that it ought to have been released to

the Plaintiff. Since the Application under Order XXXIX is still

pending, these submissions should properly be made before the

learned Single Judge. We are in no manner of doubt that if it is

so done, the learned Single Judge will respond with alacrity and

expedition.

8. It is trite that where the copyrighted material has been

put into the public domain, on the failure to arrive at a price for

the exploitation thereof, the remedy is provided in the shape of

a motion before the Copyright Board. As noted above, this

action has been taken. It has not been disputed before us that

the interim Orders of the nature, prayed for before the learned

Single Judge, cannot be passed by the Copyright Board. We

make no observations on this issue. We are certain that all these

factors will be kept in mind by the learned Single Judge when he

decides the Interim Application No.5670/2009 filed under Order

XXXIX of the Code of Civil Procedure, 1908.

9. Some discussion has been generated on the change of the

date from 29.5.2009 to 2.7.2009, that is, immediately on the

reopening after the Summer Recess. It goes to show that the

learned Single Judge had not lost sight of the imperatives of a

speedy disposal to the injunction application.

10. Our attention has been drawn by learned Senior Counsel,

to the decision in Micolube India Ltd. -vs- Maggon Auto Centre,

2008(36) PTC 231(Del) : 150(2008) DLT 458. In that case the

Court was perturbed with an unhealthy trend on the part of the

Plaintiff to array the main Defendant as Defendant No.2. It had

been held in such instances that the Plaintiff stands disentitled

to the grant or confirmation of the injunction. We entirely agree

with this exposition of the law, for the reason that a party

seeking a particular relief must approach the Court with clean

hands. Since the learned Single Judge is yet to decide the

injunction application, these arguments should be raised before

that Court.

11. For these manifold reasons we find no merit in the Appeal

which we consider premature. It is dismissed with no order as

to costs. Pending application also stands dismissed.

                                         ( VIKRAMAJIT SEN )
                                               JUDGE



May 29th, 2009                           ( RAJIV SHAKDHER )
tp                                             JUDGE