Vitasta Publishing Private Ltd vs Georg Thieme Verlag Kg
2011 Latest Caselaw 334 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 20.01.2011

+           CS(OS) No. 2152/2010


VITASTA PUBLISHING PRIVATE LTD               .....Plaintiff


                           - versus -


GEORG THIEME VERLAG KG                       .....Defendant


Advocates who appeared in this case:
For the Plaintiff: Mr. Rahul Beruar, Mr. Adarsh Ramanujan
                   and Mr. Subhash Bhutoria
For the Defendant: Mr. Pramod B. Agarwala and
                   Mr. Abhishek Baid

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

1. Whether Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported
   in Digest?

V.K. JAIN, J. (ORAL)

IA Nos. 14182/2010 & 16431/2010

1. This is a suit for declaration and permanent

injunction. The plaintiff and the defendant entered into a

Cooperation Agreement dated 19th December 2005, whereby

the plaintiff was granted exclusive rights to market and

promote, throughout the territory specified in the

agreement, the then current publishing programme

(excluding the on-line products) of the defendant to the

extent they were available for sale in the specified territory.

This was followed by a second Cooperation Agreement

effecting from 1st January 2008, for a fixed tenure of three

years.

2. The parties also entered into separate Exclusive

Reprint Agreements in respect of 27 titles mentioned in para

4.8 of the plaint. Under the agreements for reprint rights,

the plaintiff was required to pay an agreed sum, mentioned

in each agreement, to the defendant as licence fee, within

90 days from the date of the invoice. Para 12 of the

agreement provided that in the event of the publisher i.e.

the plaintiff failing to comply with any of the terms and

conditions of the agreement, and such breach or default

remaining unremedied for a period of 30 days after notice

thereof by the defendant/owner to the plaintiff/publisher,

then, at the option of the defendant/owner to be exercised

in writing, the rights granted to the plaintiff/publisher were

to revert back to the owner/defendant without prejudice to

its rights to damages for such breach or breaches.

3. Vide notice dated 22nd September 2010 sent to the

plaintiff through counsel, the defendant, referring to the

agreement for reprint, informed the plaintiff that it had not

paid the licence fee in respect of the agreements referred in

para 1 of the notice, despite more than 90 days having

expired from the invoice and thereby committed breach of

the terms of the agreements. The plaintiff was called upon

to comply with the terms of the agreement to pay the

invoiced amount in respect of each of the agreements

mentioned in para 1 of the notice to the defendant within 30

days of the receipt of the notice, failing which the rights

granted to the plaintiff under the aforesaid agreements were

to stand reverted to the defendant automatically without

further notice and without prejudice to its rights to claim

damages for the breach alleged to have been committed by

it. As many as 21 titles were mentioned in para 1 of the

notice.

4. As far as the Cooperation Agreement is concerned,

its term having expired on 31st December 2010, it does not

subsists anymore and the plaintiff has no legal right to seek

its continuance, thereafter.

5. Coming to Reprint Agreements, vide e-mail dated

25th September 2008 sent by Mr. Malik of the defendant

company to Mr. Sudesh of the plaintiff company, the

defendant informed the plaintiff that it had obtained official

agreement from the Directorate at Thieme to reduce the old

business debt to Euro 12000. Mr. Malik further informed

Mr. Sudesh that he had also obtained the agreement that

they continue the trading relationship between Thieme

Delhi and Vitasta until 31st March 2009 after which they

would stop the business relationship. The defendant was

requested to give suggestion as to how the balance payment

could be made by 31st March 2009 and a written agreement

in this regard was also suggested, so that rest of the debt

granted to Euro 35000 could be written off.

6. The e-mail dated 25th September 2008 was replied

by Mr. Sudesh on the same day. Mr. Sudesh informed Mr.

Malik that he was trying to find out his resources to give

response to him. He also noted that the plaintiff was being

given only six months' time to pay and wind up operations

with Thieme and wanted to know what would be the

arrangement, thereafter.

7. It is thus quite clear that the offer made by the

defendant vide e-mail dated 25th September 2008 to the

plaintiff company was not accepted by the plaintiff

company. Hence, the plaintiff can take no advantage from

the terms contained in this e-mail, including the offer to

restrict the previous debt to Euro 12000. Assuming that

offer made vide e-mail dated 25th September 2008 sent by

Mr. Malik to Mr. Sudesh is still open for acceptance by the

plaintiff, this would require not only payment of Euro 12000

by the plaintiff to the defendant, it would also mean that the

reprint agreement between the parties would have come to

an end on 31st March 2009 and consequently the plaintiff

would have no right to publish any of the titles, which were

subject matters of reprint agreements, w.e.f. 1st April 2009.

8. The contention of the learned counsel for the

plaintiff is that the reprint agreements between the parties

were open ended, without any time limit having been fixed

for publication of the titles subject matters of the

agreements. Assuming this to be correct, the plaintiff can

publish those titles only subject to payment of the licence

fee fixed under each agreement. Admittedly, the plaintiff

has not paid the agreed licence fee within 90 days from the

date of the invoice, as was stipulated in the reprint

agreements. In fact, even today the plaintiff is not ready to

pay the licence fee stipulated in the reprint agreements

executed between the parties. What the plaintiff wants is to

take the advantage of the reprint agreements in order to

continue publishing the titles subject matters of the reprint

agreements forever, while at the same time take advantage

of a part of the offer made by Mr. Malik of the defendant

company to Mr. Sudesh of the plaintiff company by offering

to pay only Euro 12000. This, to my mind is not

permissible in law and available to the plaintiff company.

Firstly, the offer made vide e-mail dated 25th September

2009 was never accepted by the plaintiff company. More

importantly, under that offer, the plaintiff has no right to

publish any title, subject matter of the reprint agreement

after 31st March 2009. In any case, the plaintiff could not

have accepted and offer in part. It had/has to be either

accepted or rejected as a whole.

9. For the reasons given in the preceding paragraphs,

I am of the considered view that the plaintiff has no prima

facie case for continuing to publish the titles, subject

matters of the reprint agreements between the parties

without payment of the licence fee, stipulated in those

agreements. IA 16431/2010 filed by the defendant under

Order 39 Rule 4 of CPC is allowed and IA 14182/2010 filed

by the plaintiff under Order 39 Rules 1 & 2 of CPC is

dismissed. The interim order granted by this Court on

October 25, 2010 is hereby vacated.

CS(OS) No. 2152/2010

List for framing of issues on 10th May 2011.

(V.K. JAIN) JUDGE JANUARY 20, 2011 Ag