Phi Learning Private Limited vs Dr. (Mrs.) P. Meenakshi
2011 Latest Caselaw 3863 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 10.08.2011

+ CS(OS) 1537/2009


PHI LEARNING PRIVATE LIMITED         ..... Plaintiff
              Through:Mr. M.S.Ramamurty, Adv.

                     versus


DR. (MRS.) P. MEENAKSHI                      ..... Defendant
                Through:None.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                       No.

2. To be referred to the Reporter or not?                No.

3. Whether the judgment should be reported               No.
   in Digest?

V.K. JAIN, J. (ORAL)

1. This is a suit for permanent injunction. The

plaintiff company which was earlier known as Prentice Hall

of India Private Limited, is engaged in the business of

printing and publishing of books and is stated to be an

internationally reputed publishing house, catering to the

needs of thousands of students.

2. The defendant entered into an agreement with the

plaintiff on 01.12.2004, whereby the plaintiff was granted

exclusive rights to print, publish and sell the work

„ELEMENTS OF ENVIRONMENTAL SCIENCE AND

ENGINEERING‟ under the plaintiff‟s own name. The rights

granted to the plaintiff included rights to publish and re-

prints during the full term of the copyright in the aforesaid

work. As per clause 3 of the agreement, the plaintiff was

required to pay 15% of the net receipts in India on all the

copies sold by it, as royalty to the defendant. The plaintiff

has, in terms of the aforesaid agreement, been publishing

the above title with the first print in the year 2005-2006 and

claims to have sold 5500 copies so far. It is also alleged

that the plaintiff has paid royalty to the defendant for all the

years and nothing was due to the defendant on 31.03.2009.

3. It is further alleged that an e-mail dated

11.05.2009 sent by the defendant alleging that the plaintiff

had been printing making multiple printing and had not

paid the royalty on her. This was controverted by the

plaintiff and all details of royalty payment were sent to the

defendant. It is further alleged that the defendant, in order

to wriggle out her contractual obligation of the plaintiff,

wants to determine the agreement between the parties and

give the publication rights of the title to a third party. It is

further alleged that vide e-mail dated 01.07.2009, the

defendant informed the plaintiff that it had allegedly given

the assignment to the other publisher. The plaintiff has

accordingly sought an injunction restraining the defendant

from entering any agreement whether under the

nomenclature of assignment or licence or any other

nomenclature in the nature of permitting the publishing or

granting distribution rights in respect of the literary work

presently titled "Elements of Environmental Science and

Engineering". It has also sought an injunction restraining

the defendant from any copyright in the aforesaid book.

4. The defendant was proceeded ex-parte vide order

dated 18.05.2011. Earlier, vide an interim order dated

01.09.2009, this Court had restrained the defendant from

entering into any agreement whether under the

nomenclature of assignment or licence or any other

nomenclature in the nature of permitting the publishing or

granting distribution rights in respect of the literary work

presently titled "Elements of Environmental Science and

Engineering" to any third party.

5. The plaintiff has filed the affidavit of its General

Manager Mr. N.V.Rao by way of ex-parte evidence. In his

deposition, Mr. N.V.Rao has stated that the defendant had

entered into an exclusive agreement with the plaintiff on

01.12.2004, thereby granting exclusive rights to the plaintiff

to print, publish and sell the work „ELEMENTS OF

ENVIRONMENTAL SCIENCE AND ENGINEERING‟ under the

plaintiff‟s own name, including various re-prints, during full

term of the copyright for the aforesaid title. He has further

stated that after acquiring copyright in the aforesaid books,

the plaintiff spent a lot of money and used considerable

manpower for promoting the aforesaid book amongst

various institutions in India, for the benefit of engineering

students. He has further stated that the plaintiff has so far

published only 5500 copies of the aforesaid book and it has

been paying royalty to the defendant in July every year,

along with the annual report of the sale of the work for the

period ending 31.03.2011. This statement, according to

him, is given after completion of internal audit of the

plaintiff company. He has claimed that nothing is due to be

paid to the plaintiff upto 31.03.2009.

PW-1 has further stated that the defendants sent

an e-mail dated 11.05.2009 alleging that the plaintiff had

been printing multiple editions and had not paid the royalty

on them. This was controverted by the plaintiff and all

details along with details of royalty payment were sent to

her. The defendant despite clarification given by the

plaintiff, is determined to do away with the agreement and

by e-mail dated 01.07.2009, she informed that she had

given the assignment to other publisher.

6. Ex.PW-1/3 is the agreement between the parties.

Clause (1), (4), (13) and (16) of the agreement are relevant

for the purpose of this suit and read as under:-

                (1) The Author/Editor will prepare                for
                publication  a    work    on   Elements            of
                Environmental Science And Engineering

The Author/Editor grants this work to the Publisher with the exclusive right to print, publish and sell the work, under the Publisher‟s own name and under various imprints and trade names, during the full term of copyright and all renewals thereof, and to copyright said work in the Publisher‟s name in India and in the Publisher‟s name or any other name in other countries; also the exclusive rights to said work set forth in paragraph 14 below; and any other rights now existing or that may hereafter come into existence; with exclusive authority to dispose of said rights and to authorize the use of the Author‟s /Editor‟s name and likeness or photograph in connection therewith, in all

countries and in all languages; and the Author/Editor will, upon the Publisher‟s request, do all acts necessary to effectuate this agreement.

(4) The Publisher will pay the Author/Editor a Royalty based on 15% of net receipts in India on all copies sold. Where the said work is authored/edited by more than one person, royalty shall be divided as follows:

...................% to .............. ...................% to .............. ...................% to .............. ...................% to ..............

(13). The provisions of this agreement shall apply to each reprint, revision, and new edition of the work. The Author/Editor agrees to revise the work on request of the Publisher if the Publisher considers it necessary in the best interests of the work. The manuscript of the revised work shall be delivered in final form by the Author/Editor to the Publisher within a reasonable time after requires for revision. Should the Author/Editor not provide a revision acceptable to the Publisher within a reasonable time, or should the Author/Editor be deceased, the Publisher may have the revision done and charge the cost of such revision against royalties due or that may become due to the Author/Editor, and may display in the revised work, and in advertising, the name of the person, or persons, who revise said work.

(16) The Author/Editor undertakes that he shall offer his next two works for publication to the Publisher on the same terms and conditions as contained herein and the Publisher shall have a lien on all such works."

7. It would thus be seen that subject to payment of

royalty in terms of clause (4) of the agreement, it is the

plaintiff company which has been given an exclusive right to

print, publish and sell the aforesaid book under its own

name or under various imprints and trade name during the

full time of its copyrights and all its renewals. The rights

given to the plaintiff company under this agreement include

the right to reprint or revise the book or print out any new

edition. Of course, the plaintiff has to pay royalty to the

defendant even on the reprints/revised editions, if any. The

defendant has no right, during the subsistence of the

agreement, to assign copyrights in the aforesaid title to any

person and no one else can publish the aforesaid book and

thereby infringe the copyright which has been given to the

plaintiff in the aforesaid book under the agreement dated

01.12.2004.

8. Ex.PW-1/4 is the e-mail dated 11.05.2009 sent by

the defendant to Mr. N.V.Rao of the plaintiff company. Vide

this e-mail, she informed Mr. Rao that she had come to

know that the plaintiff had been printing multiple reprints

and was liable for royalty along with interest on it. As noted

earlier, the case of the plaintiff is that it has been paying the

royalty which was due to the defendant in terms of clause 4

of the Agreement dated 01.12.2004. The defendant has not

come forward to contest the suit and to establish that any

royalty payable to her in terms of the agreement remains

unpaid. In the absence of any material to the contrary, I see

no reason to disbelieve the evidence produced by the

plaintiff to the effect that no amount was due to the

defendant as royalty as on 31.03.2009 and whatever royalty

was payable to her in terms of the agreement was being paid

to her in July every year.

9. Ex.PW-1/6 is an e-mail dated 01.07.2009 written

by the defendant to Pushpita Ghosh of the plaintiff

company. Vide this e-mail, she informed Pushpita Ghosh

that she had given the assignment to other publisher and

that the right given to the plaintiff as publisher holds no

value. It is not known whether the defendant has actually

assigned the copyrights/publication rights in the aforesaid

book to any other publisher or not. The defendant has not

come forward to claim before the Court that she has

assigned the publication and/or distribution rights in the

aforesaid title to the third party. Of course, she is not

entitled in law to assign these rights to any person other

than the plaintiff, so long as royalty in terms of clause 4 of

the Agreement dated 01.12.2004 is paid to her and such

assignment, if any by her, would be of no avail to the

assignee and would not come in the way of the plaintiff

exercising the right under its agreement with the defendant.

Vide e-mail dated 13.07.2009, Ex.PW-1/7, the defendant

claimed that the plaintiff had misused its faith and given

false details of annual report every year. Again, there is no

material before the Court to indicate that the sale figures

provided by the plaintiff to the defendant were accurate.

The case of the plaintiff is that it had published only 5500

copies so far. No material has been brought before the

Court to show that the plaintiff had published more than

5500 copies of the aforesaid book.

10. In these circumstances, I have no hesitation in

holding that since the copyrights in the book „ELEMENTS

OF ENVIRONMENTAL SCIENCE AND ENGINEERING‟

including the right to publish, distribute and sell the

aforesaid book, have been assigned to the plaintiff under the

agreement dated 01.12.2004, defendant has no right to

assign these rights to another person during subsistence of

the agreement, provided she is paid whole of the royalty in

terms of clause 4 of the agreement.

11. The learned counsel appearing for the plaintiff

states that in fact even after filing of this suit, the defendant

continue to receive royalty from the plaintiff in respect of the

aforesaid book and the plaintiff has no evidence with it to

indicate that she has assigned the publication and/or

distribution rights in the aforesaid book to some other

publisher.

12. For the reasons given in the preceding paragraphs,

a decree for permanent injunction is passed with cost

restraining the defendant from assigning the copyright

including the right to re-print, publish, sell and distribute

the book „ELEMENTS OF ENVIRONMENTAL SCIENCE AND

ENGINEERING‟ to any person during subsistence of the

agreement dated 01.12.2004, provided the plaintiff

continues to pay royalty to her in terms of clause 4 of the

agreement.

Decree sheet be drawn accordingly.

(V.K. JAIN) JUDGE AUGUST 10, 2011 'sn'