Delhi High Court
Indian Heritage Society & Anr vs Meher Malhotra & Anr on 13 September, 2013
Author: Jayant Nath
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th September, 2013
+ CS(OS) 2717/2011 and IA Nos. 17445/2011, 17787/2011 &
15091/2012
INDIAN HERITAGE SOCIETY & ANR ..... Plaintiffs
Through Mr. Pravin Anand and Ms.Tanvi
Misra, Advocate
versus
MEHER MALHOTRA & ANR ..... Defendants
Through Mr. Vikram Dogra, Mr.Samrat Nigam
and Ms. Ankita Mahajan, Advocate
for D-1.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. Learned counsel for the plaintiffs and defendant No. 1 submit that the
parties, namely, plaintiffs and defendant No. 1 have settled the matter. It is
agreed that the injunction granted by this Court on 04.11.2011 will continue
against defendant No. 1. Accordingly, defendant No. 1 shall abide by the
said direction. Suit qua defendant No. 1 is disposed of in these terms. The
plaintiff does not press any other relief against defendant No. 1.
2. Regarding defendant No. 2, the plaintiffs have filed an affidavit of
service stating that she has been served by e-mail. In any case, in view of the
correspondence between the Embassy of Ecuador and Ministry of External
Affairs, it is obvious that defendant No. 2 has been served. As none is
present on behalf of defendant No. 2, she is proceeded ex parte.
3. At this stage, I may mention about a communication which is placed
on record which is received from the Ministry of External Affairs dated
09.01.2012 pertaining to the present suit. It is stated that the Ambassador of
Ecuador in India had approached the Ministry stating that defendant No. 2 is
seeking diplomatic immunity regarding this case. The Ministry of External
Affairs has stated in the said letter dated 9.1.2012 that (i) diplomats and their
family members enjoy immunity from the jurisdiction of the local courts in
the host country, as a general rule, (ii) however, as the present case relates to
a professional activity, immunity cannot be claimed in view of the exception
mentioned in Article 31.1.c of the Vienna Convention on Diplomatic
Relations, 1961 and (ii)that before filing the suit, it is a mandatory
requirement of Section 86 of the Civil Procedure Code that consent of
Ministry of External Affairs be taken.
4. In view of the above communication, it is clear that defendant No. 2
has no diplomatic immunity.
5. Regarding objections of the Ministry of External Affairs relating to
Section 86 of the CPC, reference may be had to Section 86 CPC, relevant
portion of which reads as follows:-
"86. Suits against foreign Rulers, Ambassadors and Envoys. (1)
No. foreign State may be sued in any Court otherwise
competent to try the suit except with the consent of the Central
Government certified in writing by a Secretary to that
Government:
.....
(4) The proceeding provisions of this section shall apply in
relation to-
[(a) any Ruler of a foreign State;]
[(aa)] any ambassador or Envoy of a foreign State ;
(b) any High Commissioner of a Commonwealth country; and
(c) any such member of the staff [of the foreign State or the
staff or retinue of the Ambassador] or Envoy of a foreign State
or of the High Commissioner of a Commonwealth country as
the Central Government may, by general or special order,
specify in this behalf."
6. Accordingly, it is only the members of the staff or staff or retinue of
the Ambassador to whom this Section applies. Learned counsel for the
plaintiffs submits that the daughter of the Ambassador would not fall in any
of the categories mentioned in Section 86 of the CPC.
7. In my opinion, there is merit in the submission of the learned counsel
for the plaintiffs. The person who is covered under Section 86 are
the members of the staff of the foreign state or the staff or retinue of the
Ambassador. The Oxford English Dictionary explains „retinue‟ as follows:-
"Retinue-a group of advisers or assistants accompanying an
important person.
Hence, Section 86 of CPC will not apply to this case.
8. In this case, no written statement has been filed by defendant No. 2.
In view of the judgments of this Court in The Indian Performing Right
Society Ltd. Vs. Gauhati Town Club and Anr. 2013 III AD(Delhi) 333 and
in CS(OS) 1544/2012 titled as United Coffee House vs. Raghav Kalra &
Anr. the plaintiff need not file evidence by way of affidavit keeping in mind
that the averments made in the Plaint have been supported by Affidavit. The
Suit can hence be disposed off.
9. The issue here pertains to an Annual Day Event organised by the
plaintiffs on 18.02.2011. It is stated that defendant No. 2 was assisting
plaintiff No. 2 towards publication of the book comprising of the subject
matter of the present suit. The book was to consist of photographs depicting
different Asanas of Iyenger Yoga and their improvisations with the use of
props etc. meant to tackle different health issues. Defendant No. 2 is stated
to have learnt about the photo shoots of the Annual Day Event and she
profusely recommended her friend, defendant No. 1 herein. Defendant No.
1, thereafter, took photographs during practice session leading up to the
Annual Day as well as the actual performance on the Annual Day under the
complete guidance, supervision and instructions of plaintiff No. 2. It is
stated that as per the terms of the engagement of defendant No. 1, it was
clearly agreed that she will not deliver any of the said photographs taken at
the instance of plaintiff No. 2 to anyone else. Plaintiff No. 2 came to know
around April/March 2011 that defendant No. 2 has received photographs
from defendant No. 1. This act of defendant No. 2 is stated to be in complete
disregard and in breach of the agreement of defendant No. 2‟s engagement
terms. It is stated that it is apprehended that defendant No. 2 would misuse
the photographs. Defendant No. 2, it is stated, has failed and neglected to
handover the necessary photographs to plaintiff No. 2 and has wrongly been
and illegally demanding that in view of handing over of these compilations,
she be allowed to join the teacher‟s training program and stay at the Yoga
Centre with a remuneration of atleast Rs. 1,00,000/- for her to obtain a work
permit.
9. Learned counsel for the plaintiffs relies on the provisions of Section
17(b) of the Copy Right Act which reads as follows:-
"17. ..... Subject to the provisions of this Act, the author of a
work shall be the first owner of the copyright therein:
.....
(b) subject to the provisions of clause (a), in the case of a
photograph taken, or a painting or portrait drawn, or an
engraving or a cinematograph film made, for valuable
consideration at the instance of any person, such person shall,
in the absence of any agreement to the contrary, be the first
owner of the copyright therein;"
10. Hence, it is stated that copyrights of the plaintiffs are being threatened
to be violated by defendant No. 2. The averments in the plaint are supported
by an affidavit of Ms. Nivedita Joshi, constituted attorney of the plaintiffs.
Learned counsel for the plaintiffs submits that he does not press for any
other relief other than that the injunction order dated 04.11.2011 be made
absolute.
11. A clear case of threat to the rights of the plaintiff under the Copy
Right Act are made out.
12. Hence, a decree of permanent injunction is passed in favour of the
plaintiffs and against defendant No. 2 making the injunction order dated
04.11.2011 absolute. No orders as to costs.
13. All pending applications also stand disposed of.
JAYANT NATH, J
SEPTEMBER 13, 2013
rb
