Super Cassettes Industries Ltd. vs Maury Diginet Pvt Ltd
2015 Latest Caselaw 5025 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Order delivered on: 15th July, 2015

+                     CS (OS) No.2449/2012

       SUPER CASSETTES INDUSTRIES LTD           ..... Plaintiff
                        Through Ms. Prachi Agarwal, Advocate.


                          versus

        MAURY DIGINET PVT LTD                            ....Defendants
                         Through             Defendants already ex parte

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed a suit for permanent injunction, restraining infringement of copyright, damages and rendition of accounts etc. against the defendant. Along with the suit, plaintiff also filed an application being I.A.No. 14676/2012 under Order 39 Rule 1 and 2 CPC.

2. The suit along with said interim application was listed before Court on 14th August, 2012. After hearing, detailed ex-parte order was passed restraining the defendant, its officers, servants, agents, representatives etc. from either engaging themselves or authorizing the recording, distributing, broadcasting, public performance/communication to the public or in any other way exploiting the cinematograph films, sound recordings and/or literary

works and musical works or other work or part thereof owned by the plaintiff, without obtaining a prior license from it.

Case of the plaintiff

3. The plaintiff is one of the largest and most reputed music companies in the country. The plaintiff has since its inception been engaged in the business of manufacturing and marketing audio cassettes which has been expanded to include video cassettes; compact discs, television sets, CD players, fans, mineral water etc. all sold under the brand T-SERIES.

4. The plaintiff is thus the owner of a large repertoire of copyright works comprising inter-alia of cinematographic films, sound recordings and underlying musical and literary works.

5. The plaintiff has a number of exclusive recording arrangements with some of the well-known artists/singers and has also initiated Music Bank, the first in the country, which is a storehouse of old and new titles. The plaintiff also has state of the art facilities for the purpose of recording music and is one of the largest promoters of new talent in India. The plaintiff has also established a Film Production Division widening the scope of its offerings to the public.

6. Thus, the plaintiff has made a significant contribution to cultural life and has added to the cultural wealth of India by giving opportunities to new artistes and performers and by widening the range of quality music and audiovisual entertainment available to the general public at affordable prices.

7. The plaintiff's business activities also includes giving licenses to various organizations for the use of its repertoire of copyrighted works comprising of cinematograph films, sound recordings and underlying musical and/or literary works. The plaintiff also grants licenses to Multi-System Operators (MSO) and Cable Television Operators who operate their own cable network channels.

8. The plaintiff has been protecting its intellectual property rights by filing various suits in different courts against Multi System Operators/ Ground Cable Network Operators, the details of which has been mentioned in para 17 of the plaint.

Case against the defendant as alleged by the plaintiff.

9. The defendant is a Multi System Operator carrying on the business of providing cable television services to various subscribers in the State of Bihar. The defendant also runs and operates its own cable network channel, namely, Maury Music and a 24-hours news channel running current news as well as entertainment programs called Maury News. The defendant on its cable television channel Maury Music also provides services such as cable advertising and non-stop entertainment wherein they make extensive use of Hindi songs from commercial films and private albums and film extracts.

10. The defendant by its own admission on its website http://maurydiginet.com has gained massive popularity within Bihar and has become one of the largest cable distribution company in Bihar.

11. It is the case of the plaintiff that in the month of January, 2012 the plaintiff first came to know of the infringement of its copyright, in the course of random monitoring of the defendant's cable network channel Maury Music on a sample basis. Even on a sample basis the plaintiff was able to detect various instances of infringement by the defendant on programmes broadcasted on its cable network channel Maury Music wherein sound recordings, audio, visual works (cinematograph films) and underlying literary and musical works belonging to the plaintiff's repertoire were communicated to the public throughout the day without the plaintiff's permission or license.

12. Thereafter, the plaintiff issued an introductory letter to defendant informing about the plaintiff's Public Performance Licensing Scheme and the necessity of obtaining a license for making such broadcasts legal. Despite numerous efforts, the defendant did not obtain the requisite license and continued to infringe the plaintiff's copyrights. Thus, the plaintiff on receiving no response from the defendant issued a cease and desist legal notice dated 30th April, 2012 upon the defendant.

13. It is alleged by the plaintiff that the defendant is using the plaintiff's works for the purposes of generating revenue from its cable television subscribers. It is further alleged that the defendant's infringing acts are causing massive, irreparable and unquantifiable loss to the plaintiff.

14. Despite service of summons on 9th May, 2013, neither the defendant has entered the appearance nor has the written statement

been filed and hence, the defendant was proceeded ex-parte vide order dated 28th November, 2013. By the same order the interim order dated 14th August, 2012 was made absolute and the interim application being I.A.No.14676/2012 was disposed of.

15. In ex-parte evidence, the plaintiff filed affidavit of Mr. S.K.Dutta, Deputy General Manager of the plaintiff as Ex. PW1/A and Mr. B.N.Tiwari, Consultant of the plaintiff as PW-2/A and also exhibited certain documents exhibited as Ex.PW1/1 to Ex. PW1/8G and Ex.PW-2/1 and Ex.PW-2/2 respectively, in support of its case. The documents exhibited are as follows:

 Copy of the Board Resolution of the plaintiff has been exhibited as Ex. PW-1/1;

 A printout of the extract from the website of the Ministry of Corporate Affairs showing the details such as registered office of the Defendant has been exhibited as Ex. PW-1/2;

 Printouts from the defendant's websites http://maurydiginet.com exhibited as Ex PW-1/3;

 Copy of the introductory letter dated 29th February, 2012 with the original registered AD has been exhibited as Ex PW-1/4;

 Office copy of the another letter dated 30th March, 2012 has been exhibited as Ex PW-1/5;

 Office copy of the legal notice dated 3rd April, 2012 along with the Registered A.D and courier slip has been exhibited as Ex PW-1/6;

 Copy of the affidavit of Mr. B.N. Tiwari along with the CD recording for 31st January 2012 and cue sheets has been exhibited as Ex PW-1/7;

 Extract from Register of copyrights in favour of Super Cassettes Industries Limited in the movie Bewafa Sanam along with Inlay Card has been exhibited as Ex PW 1/8A;

 Assignment Deed for the movie Tezaab between Super Cassettes Industries Limited and M/s Chandra Productions dated 26th February 1988 along with Inlay card has been exhibited as Ex PW 1/8B;

 Assignment deed dated 9th August, 2010 executed by M/s Reel Life Productions Pvt. Ltd. In favour of Super Cassettes Industries Limited for copyrights in the movie Body Guard along with Inlay card has been exhibited as Ex PW 1/8C;

 Assignment deed for the movie Hum Dil De Chuke Sanam along with Inlay card has been exhibited as Ex PW 1/8D;

 Memorandum of Understanding dated 12th June 2008 for the movie DILLI-6 between Rakeysh Om Prakash Mehra Pictures Private Limited and Super Cassettes Industries Limited along with Inlay card has been exhibited as Ex PW 1/8E;

 License Agreement dated 29th October 2007 for the movie Jaane Tu Ya Jaane Na between Aamir Khan Productions Private Ltd and Super Cassettes Industries Limited has been exhibited as Ex.PW1/8F;

 Assignment deed dated 18th June 2010 between Super Cassettes Industries Limited and Sri Ashtavinayak Cinevision Ltd for the movie Golmaal-3 along with Inlay card has been exhibited as Ex.PW1/8G.;

 CD recording for the period 31st January, 2012 and cue sheets containing the details such as time of recording, film/album belonging to the plaintiff's repertoire, programme, duration of infringement and reading has been exhibited as Ex.PW2/1 and Ex.PW2/2.

16. The ex-parte evidence was closed vide order dated 20th March, 2015.

17. It is established by the plaintiff that the defendant on notice, the infringing activities continued unabated and thus the plaintiff was left with no alternative but to file the present suit. It is stated that the record bears out that the said infringing broadcasts have been confirmed by Mr. B.N.Tiwari, who under instructions of Mr. S.K.Dutta, has been able to record such infringing broadcasts on the defendant's channel on a sample basis for the period 31st January 2012. It is stated that even on a sample basis the plaintiff was able to detect various instances of infringement by the defendant on programmes broadcasted on its cable, network channel Maury Music wherein sound recordings, cinematograph films and underlying literary and musical works belonging to the Plaintiffs repertoire from the movies like "Bewafa Sanam", "Nagina", "Rang", "Karan Arjun", "Body Guard" "Dilli-6" etc. were communicated to the public, without

the plaintiffs permission or license. A copy of the affidavit of Mr. B.N Tiwari along with CD recording for 31st January 2012 and cue sheets has been exhibited as Ex PW 1/7.

18. It is also proved that the plaintiff company is the owner of copyright of the works broadcasted by the defendants on their channel on 31st January 2012 as detected by Mr. B.N Tiwari. The copies of sample Assignment Deeds which illustrate that the plaintiff company is the exclusive copyright owner of the said works being exploited by the defendant on its channel during the aforementioned periods has been placed on record.

19. Hence, the defendant is causing the plaintiff company substantial loss and damage on account of continuous infringement of its copyright and the same is disrupting plaintiff company's business, which depends partly on license income from the use of its copyrighted work. It is established on record that the plaintiff invests massive amounts to acquire copyrights from the authors and owner thereof and the same runs into many crores of Rupees. It is stated that other media and entertainment channels which regularly obtain licence, the fee runs into several lakhs of rupees. The usage of the plaintiff Company's repertoire by the defendant was detected. Therefore, the damages are claimed in the suit. It is submitted that the damages claimed by the plaintiff Company are nominal as compared to the license fees actually paid by other broadcasting organizations.

20. Thus, a decree for permanent injunction is passed in terms of para 36(i) of the plaint in favour of the plaintiff and against the defendant restraining the defendant, their officers, servants, agents and representatives and all other persons acting for and on their behalf from either engaging in themselves or from authorizing, the recording, distributing, broadcasting, public performance/ communication to the public or in any other way exploiting the cinematograph films, sound recordings and/or literary works (lyrics) and Musical works (musical composition) or other work or part thereof, that is owned by the plaintiff including all works whereon the plaintiff has shown its copyright or from doing any act infringing the plaintiff's copyright.

21. The plaintiff has placed the copies of orders in other matter in similar nature in suit being CS (OS) No. 2185/2012 and CS (OS) No. 1891/2012 decided on 7th May, 2013 and 26th July, 2013 and the suit was decreed where the damages to the tune of Rs. 21 Lac have been granted.

22. Actual damages have not been proved by the plaintiff in the present case, however, in the view of the nature of the present case I am of the view that the plaintiff is entitled for punitive damages as well as cost of the suit.

Punitive damages

23. With regard to the relief of damages as claimed by the plaintiff in para 36(iv) of the plaint, this Court has previously granted both exemplary and punitive damages against the defendants in ex-parte

matters of similar nature. In Time Incorporated Vs. Lokesh Srivastava & Anr., 2005 (30) PTC 3 (Del.) while awarding punitive damages of Rs. 5 lakhs in addition to compensatory damages also of Rs. 5 lac, Justice R.C. Chopra observed that "time has come when the Courts dealing in actions for infringement of trademarks, copyrights, patents etc., should not only grant compensatory damages but also award punitive damages with a view to discourage and dishearten law breakers who indulge in violation with impunity out of lust for money, so that they realise that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also, which may spell financial disaster for them."

24. Further, this Court in Microsoft Corporation Vs. Rajendra Pawar & Anr., 2008 (36) PTC 697 (Del.) decided on 27th July, 2007 has held "Perhaps it has now become a trend of sorts, especially in matters pertaining to passing off, for the defending party to evade court proceedings in a systematic attempt to jettison the relief sought by the plaintiff. Such flagrancy of the defendant's conduct is strictly deprecatory, and those who recklessly indulge in such shenanigans must do so at their peril, for it is now an inherited wisdom that evasion of court proceedings does not de facto tantamount to escape from liability. Judicial process has its own way of bringing to tasks such erring parties whilst at the same time ensuring that the aggrieved party who has knocked the doors of the court in anticipation of justice is afforded with adequate relief, both in law and

in equity. It is here that the concept of awarding punitive damages comes into perspective."

25. In view of the facts of the present case, this Court is of the opinion that in the present case Rs.5 lac as punitive damages be granted in favour of the plaintiff and against the defendant in terms of para 36(iv) of the plaint. Ordered accordingly.

26. Decree for cost of the proceedings is also passed against the defendant as claimed in prayer clause 36(v) of the plaint. The other reliefs are not pressed by the plaintiff.

27. Decree be drawn accordingly.

(MANMOHAN SINGH) JUDGE JULY 15, 2015