Delhi High Court
Moserbaer India Ltd. vs Modern Cinema on 19 September, 2016
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th September, 2016
+ CS(OS) No.324/2008
MOSERBAER INDIA LTD. ..... Plaintiff
Through: Mr. D.K. Singh, Mr. Saurabh
Agrawal & Ms. Komal Mundhra,
Advs.
Versus
MODERN CINEMA .... Defendant
Through: Mr. D.K. Thakur, Adv.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
The plaintiff has instituted this suit to restrain the defendant situated at
Chennai from manufacturing, selling, circulating, distributing or giving on
hire etc. any video cassettes, VCDs, DVDs, LCDs in respect of 70 Telugu
films detailed in the plaint and for declaration that the defendant does not
have right of any nature whatsoever in the said films and for ancillary
reliefs.
2. The suit was entertained and vide ex parte ad-interim order dated 19th
February, 2008, the defendant restrained from manufacturing, selling,
circulating in any manner the video cassettes, VCDs, DVDs and LCDs in
respect of the said 70 Telugu films. Vide the same order a Commissioner
was also appointed to visit the premises of the defendant and to seize and
take into custody the said cinematographic films, Masters, Inlay Cards and
Music Cassettes of the said films.
3. The Commissioner so appointed reported seizure of VCDs, DVDs and
box packs of the said films and delivery thereof on superdari to the
representative of the defendant.
4. The defendant appeared and applied under Order XXXIX Rule 4 CPC
and filed a written statement.
5. Vide judgment dated 18th February, 2010 the application of the
defendant under Order XXXIX Rule 4 allowed, the application of the
plaintiff for interim relief was dismissed and the ex parte ad-interim order
dated 19th February, 2008 vacated inter alia observing i) that though the
plaintiff had filed the entire chain of agreements with respect to almost each
of the 70 films, elucidating how the rights in each film came to be vested in
the plaintiff but there were certain films (nine in number) with regard to
which the plaintiff‟s claim was suspect due to certain agreements in the
chain of agreements having not been filed and certain documents being
unclear and illegible; ii) that the defendant had filed two suits pending in the
District Court at Madurai and in the High Court of Madras respectively and
some of the films subject matter of the present suit were subject matter of
those suits also; iii) that the suit at District Court Madurai had as its subject
matter 46 movies and the suit in the High Court of Madras had as its subject
matter 80 movies; iv) that of the 70 movies subject matter of the present suit,
18 were the subject matter of the two suits at Madurai and Madras; v) that
the suits at Madurai and Madras were between West Top Investment (I) Pvt.
Ltd., from whom the plaintiff claims assignment of the copyright in the 70
films, on the one hand and one of the partners of the defendant on the other
hand; vi) that the claim of the defendant was that it held prior and better
assignment in several of the 70 movies and the documents filed by the
defendant indeed showed the defendant to be having licences / agreements
as regards all the 70 film titles subject matter of the present suit; vii) that the
plaintiff had failed to disclose ongoing business relationships with the
defendant and had instituted the suit as if the defendant was merely a
stranger; viii) that the plaintiff had also suppressed the history of the prior
litigation pending in the courts at Madurai and Madras between West Top
Investment (I) Pvt. Ltd. from which the plaintiff claims title to the 70 films
and the defendant; ix) that prima facie it appears that the defendant had
obtained exclusive copyright for the VCDs / DVDs of many of the films
directly from the purchaser much prior to the plaintiff and in some cases the
defendant had acquired exclusive right to the films from the distributors who
had acquired video rights from the original purchasers; x) that the balance of
convenience was in favour of the defendant; and, xi) that the plaintiff had
failed to comply with Order XXXIX Rule 3 of the CPC. The said order has
attained finality.
6. Thereafter none appeared for the defendant and the defendant was
vide order dated 2nd June, 2010 proceeded against ex parte and the plaintiff
permitted to lead ex parte evidence. Though the defendant thereafter
appeared on 19th February, 2011 and stated that the defendant will be
making an application for setting aside of the order proceeding ex parte
against it but did not do so. The plaintiff also however failed to lead ex
parte evidence despite several opportunities and on 21st September, 2012
and on 21st November, 2012 sought adjournment on the ground that it was
negotiating a compromise / settlement with the defendant. The counsel for
the defendant has been appearing since 21st November, 2012 but did not
make any application for setting aside the order proceeding ex parte against
it.
7. The defendant ultimately filed IA No.9807/2014 and IA
No.9808/2014 for recalling of the ex parte orders against it and for
condonation of the delay in applying thereof. The said applications were
dismissed vide order dated 19th December, 2014.
8. The plaintiff has filed affidavit by way of examination-in-chief of its
Product Manager and the matter was posted for final arguments. I may
notice that though the counsel for the defendant whose written statement is
on record could have sought an opportunity to cross examine the said
witness, even without the order proceeding ex parte against the defendant
having been set aside, as no substantive proceeding had taken place since the
defendant was proceeded against ex parte and the defendant was / is at
liberty to join proceeding at any stage, but did not do so. Resultantly, the ex
parte evidence led by the plaintiff remains unrebutted.
9. It appears that the counsel for the plaintiff addressed ex parte
arguments on 18th January, 2016. Vide order of the said date attention of the
counsel for the plaintiff was drawn to Indian Performing Rights Society
Ltd. Vs. Sanjay Dalia (2015) 10 SCC 161 and it was enquired from the
counsel for the plaintiff whether the plaintiff had any office at Chennai
where the defendant is situated and the plaintiff granted an opportunity to
file an affidavit in this regard.
10. The plaintiff in response thereto has filed affidavit of its legal officer
deposing "that the plaintiff has a defunct office located at Chennai, Tamil
Nadu, which is essentially a sales office, wherein no other work such as
accounts, logistics, etc. are carried out there, and the said office has only 6
employees. The said office is merely a communication address for Chennai.
There is not much activity that is carried out at the branch office at Chennai,
inasmuch as the business of the plaintiff has almost come to a grinding halt,
because of the advancement and change in technology and the CD/DVD
business has also become obsolete."
11. Thereafter on 25th April, 2016, the following order was passed:
"1. Though it is stated that the plaintiff has filed the affidavit that the
plaintiff has an office in Chennai, it is noted as per paragraph 25
of the plaint that this Court has territorial jurisdiction because the
plaintiff claims that infringing material is being sold / circulated
by the defendant within the territorial jurisdiction of this Court.
Therefore this averment shows existence of the territorial
jurisdiction of the courts at Delhi in view of Section 20 CPC
because part of the cause of action will have occurred in Delhi.
2. Counsel for the plaintiff is stated to be not well.
3. At request, list on 09th August, 2016."
12. Thereafter on 9th August, 2016, the counsel for the plaintiff was
unable to satisfy as to how the plaintiff in its ex parte evidence had proved
its case and filed IA No.10446/2016 and IA No.1447/2016 seeking
permission to file fresh affidavit of ex parte evidence. Vide order dated 30th
August, 2016 the plaintiff was granted permission to file a fresh affidavit of
evidence. Though the said affidavit was filed but remains under objections.
The counsel today, has not urged anything in this respect.
13. The counsel for the plaintiff and the counsel for the defendant though
ex parte have been heard.
14. The counsel for the plaintiff states that the suit is entitled to be
decreed as the ex parte evidence led by the plaintiff remains un-rebutted.
Reliance is placed on my order dated 6th September, 2016 in CS(OS)
No.1625/2007 titled Moserbaer India Ltd. Vs. Movie Land decreeing that
suit (ex parte). Per contra, the counsel for the defendant again relying on
Indian Performing Rights Society Ltd. supra contends that this Court does
not have territorial jurisdiction.
15. The counsel for the plaintiff contends that the order dated 25 th April,
2016 reproduced hereinabove having attained finality, it is not open to the
counsel for the defendant to today urge that this Court does not have
territorial jurisdiction.
16. The order dated 25th April, 2016 being in reference to the plea in para
25 of the plaint, I have enquired from the counsel for the plaintiff whether
the witness of the plaintiff has proved that the infringing material is being
sold / circulated by the defendant within the territorial jurisdiction of this
Court.
17. The counsel for the plaintiff has replied in the negative.
18. As far as the objection of the counsel for the defendant to territorial
jurisdiction is concerned, a Division Bench of this Court in Ultra Home
Construction Pvt. Ltd. Vs. Purushottam Kumar Chaubey 227 (2016) DLT
320 and in RSPL Ltd. Vs. Mukesh Sharma MANU/DE/1862/2016 has on
an analysis of Indian Performing Rights Society Ltd. supra held that taking
advantage of the provisions of Section 134(2) of the Trade Marks Act, 1999
and Section 62(2) of the Copyright Act, 1957 a plaintiff i) which is a
corporation and which has a sole office can institute a suit at the place of the
sole office even if the cause of action has arisen at a different place; ii)
which has a principal office at one place and a subordinate or branch office
at another place and the cause of action has arisen at the place of principal
office may sue at the place of the principal office but cannot sue at the place
of the subordinate office; iii) which has a principal office at one place and
cause of action has arisen at a place where its subordinate office is located,
would be deemed to carry on business at the place of subordinate office and
not at the place of principal office; and, iv) where the cause of action neither
arises at the place of principal office nor at the place of subordinate office
but at some other place, would be deemed to carry on business at the place
of its principal office and at the place of the subordinate office.
19. Applying the aforesaid, it has been enquired from the counsel for the
plaintiff that since the cause of action has arisen at Chennai and plaintiff has
admitted having office at Chennai, how can the plaintiff invoke the
jurisdiction under Section 62(2) supra of this Court even if the principal
office of the plaintiff is within jurisdiction of this Court.
20. The counsel for the plaintiff contends that the office at Chennai is
merely a sales office.
21. No such distinction has been carved out in Indian Performing Rights
Society Ltd. supra.
22. The counsel for the plaintiff then contends that the plaintiff in the
plaint in para no.25 has also pleaded cause of action within the territorial
jurisdiction of this Court.
23. However that has not been proved by the plaintiff.
24. The counsel for the plaintiff then states that the finding in the order
dated 25th April, 2016 supra of this Court having cause of action would
operate res judicata.
25. I am afraid not.
26. The plaintiff, as aforesaid, thereafter took opportunity to lead
evidence but did not lead evidence and averment in the pleadings without
being proved cannot be relied upon.
27. I have even otherwise perused the affidavit by way of ex parte
evidence of the plaintiff. The plaintiff therein has proved having acquired
copyright to the 70 films. The defendant having chosen not to contradict the
plaintiff, the said evidence is to be believed.
28. However the plaintiff has to be non-suited on the ground of territorial
jurisdiction.
Dismissed.
No costs.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 19, 2016
„gsr‟
