Super Cassettes Industries vs M/S Information Tv. Pvt. Ltd.
2011 Latest Caselaw 1799 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      PRONOUNCED ON: 28th March, 2011

+                     IA Nos. 889-891/2011 in CS (OS) 2254/2008


SUPER CASSETTES INDUSTRIES                                         ....... PLAINTIFF

                      Through : Mr. Jagdish Sagar, Advocate

                                     VS

M/S INFORMATION TV. PVT. LTD.                       DEFENDANT/REVIEW PETITIONER

                      Through : Mr. Rupesh Gupta (with Mr. Inder Singh And
                                Mr. Siddharth Lodha), Advocates


CORAM:

MR. JUSTICE S. RAVINDRA BHAT

1.

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

2.     To be referred to Reporter or not?           YES

3.     Whether the judgment should be               YES
       reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT

%

1. This order will dispose of the defendant's petition seeking review of this Court's final order and decree dated 08.12.2010.

2. The plaintiff sought permanent injunction and a decree for rendition of the defendant's accounts of profit and an order for delivery up to the plaintiff by the defendant of all infringed tapes, copies and negatives bearing the plaintiff's copyright material. The suit claims that the plaintiff had largest and fastest growing repertoire of music and sound recordings comprising of about 20,000 Hindi non film songs and around 50,000 songs in regional languages. The plaintiff alleged that the defendant violated its copyright in such works of broadcasting them in the

IA No. 889-891/2011 in CS(OS) No.2254/2008 Page 1 channel "India News" repeatedly, and unauthorizedly. The instances of such alleged unauthorized broadcast were specified in the suit.

3. The Court had issued summons in the suit, on 24.10.2008 to the defendant. Thereafter the case was listed time and again; the defendant entered appearance sought for leave to file its written statement; this court condoned the delay, and took on record the written statement. On 02.12.2009 the Court recorded that the parties were exploring the possibilities of settlement. On 27.07.2010 the Court directed that defendant's representative/ Director of the defendant familiar with the case and having knowledge of the case, to remain present in Court on the next date. Accordingly on 17.09.2010 Mr. Hari Gopal Sharma, the defendant's producer, was present in Court. It was submitted on that day that since May 2010 no telecast or broadcast had taken place and leave was sought to place an affidavit of the defendant to that effect on the record.

4. An affidavit of the defendant dated 29.11.2010 was filed; it was affirmed by Shri Hari Gopal Sharma. The same reads as follows :

"I, Hari Gopal Sharma, S/o Sh. R. K. Shastri, Aged about 32 years, C/o M/s Information TV Pvt. Ltd., 276, Media House, Capt. Gaur Marg, Sriniwaspuri, New Delhi-110065, do hereby solemnly affirm and declare as under :

1. That the Deponent has been given the charge of telecasting/broadcasting the programs on the News channel of the Defendant being "India News" with effect from May 2010.

2. That the Deponent was informed about the Orders passed by this Hon'ble Court in the captioned matter. The Deponent accordingly diligently monitored the broadcasting programs on its channel and made all bona fide efforts to ensure that the Orders passed by this Hon'ble Court are complied with.

3. That without prejudice to the defence raised by the Defendant in its Written Statement and Reply to interim relief, it is submitted that with effect from May- June 2010, no broadcast has taken place on the channel of the Defendant infringing any copyright material belonging to the Plaintiff.

4. That the contents of the above affidavit are true and correct to the best of my knowledge, concern and information received from the records maintained by the Defendant. "

In view of the above affidavit and after considering the parties' submissions, the Court made the following order ;

" CS (OS) 2254/2008 The defendant has filed an affidavit submitting that the telecast of the plaintiff's repertoire has stopped since May - June, 2010. This statement is taken

IA No. 889-891/2011 in CS(OS) No.2254/2008 Page 2 on record.

In view of the submissions made by the defendant, which the plaintiff does not dispute, this Court is of the opinion that the claim for decree for a permanent injunction has to succeed. The suit so far as the relief in paragraph-24 (a) is concerned is, therefore, allowed.

Learned counsel for the plaintiff suggested that if the defendant deposit the reasonable license fee for the period 2008-2010, the matter could be resolved. The defendant, however, stated that it does not accept such proposal. In the circumstances, the plaintiff would have to prove the entitlement to the other reliefs. The surviving issues are hereby framed with consent of the learned counsel for the parties and after hearing them:

(i) Is the plaintiff entitled to a decree for rendition of accounts, as claimed? OPP

(ii) Is the plaintiff entitled to damages, as claimed? OPP

(iii) Relief.

List before the Joint Registrar on 27th January, 2011 to enable the parties to admit or deny the documents and for further directions towards recording of evidence.

List before the Court on 5th August, 2011, after the evidence is duly recorded.

It is open to the parties to file additional documents within four weeks."

4. The review petitioner/defendant contends that a fair reading of the affidavit dated 29.11.2010 would disclose that no admission of the kind which would have persuaded the Court to draw a decree for permanent injunction was in fact contained in it. It was submitted that the defendant had merely stated that no broadcast had taken place in the specified time. Shri Hari Gopal Sharma had only recently joined the company. It was argued that the defendant had contested the submissions/allegations by the plaintiff's about broadcast of songs or works in which the plaintiff allegedly owned copyright. The affidavit relied on by the Court to decree the claim for permanent injunction, therefore, had ex facie ignored this aspect which warranted a review of the order dated 08.12.2010.

5. The plaintiff's counsel who contested the review petition argued that a plain reading of the order dated 08.12.2010 would indicate that the defendant had indeed consented to the terms recorded by the Court and had conceded to the grant of permanent injunction. It was submitted that there was no material on the record suggesting that the works which were broadcasted at the

IA No. 889-891/2011 in CS(OS) No.2254/2008 Page 3 relevant time mentioned in the suit were owned by someone else other than the plaintiff. Besides submitted learned counsel, a consent order based purely on facts cannot be reviewed and in any event, the defendant would not be prejudiced because it is still open for it to resist such part of the suit in which the claim for accounts, delivery and other reliefs have been sought.

6. This Court has considered the submissions and pleadings in this case. No doubt at one stage it was recorded in the proceedings that the parties were negotiating for a compromise. However, that possibility did not crystallize. In the meanwhile, defendant's written statement had been taken on record as is evident from the Court's order of 17th March, 2009. In that written statement the defendant had urged inter alia as follows :

"C. That the Plaintiff does not have the copyright in the works as alleged by it. It is submitted that the plaintiff has not filed any proof to substantiate the fact that the executors of the assignment deeds actually had the rights that have been allegedly assigned by them to the Plaintiff, and which is the foundation of the entire Suit. It is submitted that it is a settled principle of law that no one can have a better title than he himself has, therefore, if the executors of the assignment deeds actually did not have the rights, the same could not have been acquired by the plaintiff.

D. That the plaint filed by the plaintiff is based purely on conjectures and surmises and lacks material particulars and is thus bad in law. The plaintiff has failed to explain as to what all copyright vest in the assignors of the assignment deeds, and various other material particulars which ought to have been specified in the Plaint.

E. That the plaintiff has failed and avoided to provide any concrete evidence with regard to the alleged violation of its copy right. The copy of the CD allegedly recorded by Mr. Kamle of the plaintiff, has not been supplied to the defendants. Hence the allegations leveled by the plaintiff in the suit cannot be replied specifically in the absence of the CD with regard to the alleged violation. The defendant reserves its right to add, amend and modify the Written Statement, as and when the abovesaid CD is provided by the plaintiff to the defendants."

7. If one compares the above averments with the contents of the affidavit dated 29.11.2010 of Shri Hari Gopal Sharma it is apparent that the Court was merely apprised of compliance of its injunction order: "bona fide efforts to ensure that the Orders passed by this Hon'ble Court are complied with". The defendant also clearly stated that the affidavit was being placed on record without prejudice to its defense in the written statement. In these circumstances, the Court is un- persuaded by the plaintiff's submission that review petitioner/defendant had consented to the order of 08.12.2010 and conceded to the claim for permanent injunction.

IA No. 889-891/2011 in CS(OS) No.2254/2008 Page 4

8. It is no doubt correct that a consent order cannot be reviewed by the Court. However, the order of 08.12.2010 proceeds on the assumption that the defendant had conceded to the claim for permanent injunction - which is plainly erroneous on the face of the record. It is correct that review jurisdiction is sparingly resorted to and the Court does not alter its final orders except for compelling reasons. However, once the error in the Court's approach - (which includes an unsupportable assumption of fact) is disclosed, it is not only the right but also the duty of the Court to reverse its error, which appears to be the only credible course to be adopted in this case.

9. For the above reasons, the review petition has to succeed; the direction decreeing the suit in so far as the plaintiff's claim for permanent injunction is concerned, is hereby recalled. The plaintiff will now have to also prove its entitlement to such claim. IA Nos. 889-891/2011 are therefore allowed in the above terms.

CS(OS) No. 2254/2008

List before the Regular Bench on 18th April, 2011, as per Roster allocation, for further proceedings.

28th March, 2011                                                       (S.RAVINDRA BHAT)
                                                                            JUDGE




IA No. 889-891/2011 in CS(OS) No.2254/2008                                                   Page 5