Bharati Bhawan & Anr vs M/S Shree Jee Prakashan & Ors
2017 Latest Caselaw 4409 Del

$~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Reserved on: 18th August, 2017
                                     Pronounced on: 24th August, 2017

+     CS(COMM) 550/2016 and IA No.9250/2017

      BHARATI BHAWAN & ANR                      ..... Plaintiffs
                  Through : Mr.Pravin Anand, and Ms.Asavari
                            Jain, Advocates.

                          versus

      M/S SHREE JEE PRAKASHAN & ORS                       ..... Defendants
                     Through : None

CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

1. IA No.9250/2017 has been filed for summary judgment by the plaintiffs under Order 8 Rule 10 Civil Procedure Code read with Order 13-A Rules 3 & 6 (1)(a) of the Commercial Courts Act, 2015 and Section 151 CPC.

2. The present suit has been filed for permanent injunction restraining the defendants for infringement of the copyright of book "Concepts of Physics", delivery up and damages.

3. During proceedings, the matter was compromised between the plaintiff and defendants No.4 to 6 and IA No.947/2017 and 1745/2017 were allowed by this Court vide order dated 17.05.2017. Pursuant

thereto, compromise decree was also drawn. The present application is qua defendants No.1 to 3 only.

4. At the outset, learned counsel for plaintiffs says that he is pressing prayer Nos.12a and 12b only of the plaint. The said prayers are reproduced hereunder:-

„a. An order of permanent injunction restraining the Defendant Nos.1 and 2, their partners as the case may be, their officers, servants and agents, affiliated entities, and all other acting for and on their behalf from translating in Hindi or in any other language substantially or otherwise the Plaintiffs‟ book „Concepts of Physics‟; publishing, printing, re-printing, offering for sale the Hindi translation of the Plaintiff‟s book titled „Bhautiki Ke Moolbhoot Sidhant‟ in any manner amounting to infringement of copyright;

b. An order for permanent injunction restraining defendant No.3 and defendant Nos.4 to 6, its partners or proprietors, as the case may be, its officers, servants and agents from publishing, distributing, offering for sale, advertising, directly or indirectly dealing in any business whatsoever of selling the infringing book titled „Bhautiki Ke Moolbhoot Sidhant‟."

5. The defendants No.1 to 3 were served with the summons, but failed to appear. The right of defendants No.2 & 3 to file the written statement was closed vide order dated 12.05.2016; whereas the right of defendant No.1 to file the written statement was closed vide order dated 15.07.2016.

6. The contention and submissions advanced by learned counsel for plaintiffs are as under:-

(i) the plaintiff No.1, Bharati Bhawan (Publishers and Distributers) is a partnership firm which publishes school and college textbooks in English, Hindi and Bengali. It publishes books for the National School Boards i.e. Central Board of Secondary Education (CBSE) and the Indian Certificate of Secondary Education (ICSE) as well as for some State Boards such as the Bihar School Examination Board (BSEB), the Jharkhand Academic Council (JAC) etc. as well as books for competitive exams. A few catalogues of plaintiff No.1‟s publication along with the printouts from its website have been filed along with the list of documents filed with the plaint;

(ii) the plaintiff No.2, Dr. H.C. Verma, is a nuclear experimental physicist who completed his Doctorate from the Indian Institute of Technology, Kanpur. He is the author of the book 'Concept of Physics' which is the subject matter of the present proceedings. The book „Concept of Physics' is widely popular and the leading Indian authority for students studying in Physics in Class XI and XII. The said book is published in two volumes and a photocopy of both the volumes has been filed with the list of documents filed with present plaint;

(iii) the book 'Concept of Physics' as detailed in paragraph III of the plaint received immediate acclaim, both from students and teachers alike. Since its first publication in the year 1992 today even after 24 years the book is widely accepted as the most comprehensive book on Physics for students. The book is hugely popular amongst students due to its wide coverage, simple language, clear concepts, good problems and hence

often recommended by most teachers for their students. The book not only helps students in competitive examinations like IIT, Joint Entrance Examinations (JEE) but also makes physics an enjoyable subject. Excerpts from the review of students at online forums and student discussion forums evidencing the popularity of the book have been filed with the list of documents filed with the plaint;

(iv) both plaintiff No. 1 and 2 have entered into an agreement dated 14th September, 1992 by virtue of which plaintiff No.1 has the sole and exclusive right to publish, translate and abridge the book 'Concept of Physics' for the legal term of the copyright. The agreement dated 14 th September, 1992 has been filed along with the list of documents filed with the plaint;

(v) sometime in August, 2014 the plaintiffs learnt that an unauthorized Hindi translation of the book 'Concept of Physics' was being sold titled 'Bhautiki ke Moolbhoot Sidhant'. The said translation was authored by defendant No.2 Mr.S.C. Gupta and published by defendant No.1, Shree Jee Prakashan. It was learnt that defendant No.3 Mr. Jitendra Sethi was the sole and exclusive distributor of the impugned book and was supplying the same to retail shops in Kota, Rajasthan. The defendants No.4 to 6 were shops where the infringing book was being sold. Photocopy of the parts of the infringing book 'Bhautiki ke Moolbhoot Sidhant' showing defendant No.1 as the publisher and defendant No.2 as the author has been filed along with the list of documents filed with the plaint;

(vi) the infringing book „Bhautiki ke Moolbhoot Sidhant‟ is a verbatim translation in Hindi of the plaintiffs' book "Concepts of Physics" and

illustration showing the identical features of both the books have been detailed in paragraph VI of the plaint. An affidavit by plaintiff No. 2 stating that the defendants' books is a verbatim translation of his book and a sample comparison of both the books has been filed along with the list of documents filed with the plaint. A table comparing the similarities in Volume II of 'Concepts of Physics' with Part II 'Bhautiki ke Moolbhoot Sidhant' is filed along with this plaint as Annexure A;

(vii) each page including the examples, diagrams, equations, exercises, objective type questions etc. have been copied and translated in Hindi by defendants No.1 to 3. Apart from copying the text in its entirety, all unique examples that the plaintiff No.2 uses to explain physics to Indian students in a simple yet interesting manner are copied. The plaintiff No.2 had taken 8 years to research for the book 'Concepts of Physics' which has been illegally copied and translated by the defendants. The plaintiffs are the exclusive owners of the copyright in the book 'Concept of Physics' and they have not either assigned nor licensed the right of translation or publication to defendants No.1 to 3. The defendants No.1 to 3 are thus liable for copyright infringement under Section 51 of the Copyright Act, 1957;

(viii) this Court passed an ex parte order on 3 rd November, 2014 restraining the defendants no.1 and 2 from translating in Hindi or any other language the plaintiffs' book 'Concept of Physics'-, publishing, printing, re-printing, offering for sale the Hindi translation tilted 'Bhautiki ke Moolbhoot Sidhant' amounting to infringement of copyright. Further, defendant No.3 was also restrained from publishing, distributing, offering for sale, advertising or directly or indirectly dealing in any business

whatsoever of selling the infringing book tilted 'Bhautiki ke Moolbhoot Sidhant';

(ix) during the pendency of the suit, the plaintiffs and defendants No.4 to 6 had arrived on settlement terms and accordingly the suit was decreed qua them vide order dated 17th May, 2017;

(x) the defendants No.1 to 3 have not entered appearance till date and accordingly vide order dated 17th May, 2017 were proceeded ex-parte. It is submitted that the right of defendants No.1 to 3 to file their written statement have since been closed. The defendants No.1 to 3 failure to file its written statement till date thus result in a forfeiture to do so and demonstrates their lack of justification or defence of their infringing activities involving the plaintiffs' copyright;

(xi) in the absence of a written statement, the averments in the plaint are deemed to be true and correct. Moreover, the plaint is duly supported by an executed affidavit and therefore may be read into evidence.

(xii) The Plaintiffs are therefore seeking a decree in terms of the prayer in the plaint under Order 8 Rule 10, CPC which provides that where any party from whom a written statement is required fails to present the same within the time permitted, the Court shall pronounce judgment against him or make such order relating to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. The defendant's failure to file a written statement in the suit entitles the plaintiffs to a decree of permanent injunction as prayed for.

7. A Coordinate Bench of this Court in Satya Infrastructure Ltd. and

Ors. vs. Satya Infra & Estates Pvt. Ltd. 2013 III AD (Delhi) 176 has held as under:-

"4. I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-in chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record........."

8. Thus, the plaintiffs are the copyright owners having all the rights in the book under Section 14A of the Copyright Act, 1957 which includes the right to translate as an exclusive right under Section 14A (v) of the Act. The plaintiff No.1 has the exclusive right to translate the book in question in both volumes, per clause 8 of the agreement between the plaintiffs and since the plaintiff No.1 has neither assigned nor licensed or in any manner transferred the said right to translate to the defendants No.1 to 3 and since the defendant No.1 is named as publisher on the book "Bhautiki Ke Moolbhoot Sidhant" and defendant No.2 is named as an author thereof so by virtue of Section 55 they are presumed to be the author and publisher of the book. The plaintiff No.2 is an IIT professor and a huge source of his livelihood is the royalty payments by plaintiff No.1 to him for the book in question. The unauthorized translation is depriving him from the royalty that should rightfully accrue to him from

any sale of his book including any translations of the book. Hence, there is no justification for the defendants to publish the book as stated above. In any event, the defendants have not placed any written defence on record.

9. Hence, this Court is of the view that the plaintiff is entitle to a decree under Order XIII-A of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 as the said provision empowers this Court to pass a summary judgment, without recording evidence, if it appears that the defendant has no real prospect of defending the claim.

10. Accordingly, the present application is allowed and the suit is decreed against the defendants in accordance with prayer Nos.12a and 12b of the plaint along with actual costs of the suit.

11. Registry is directed to prepare a decree sheet accordingly.

12. The date already fixed i.e. 26.10.2017 before the Joint Registrar stands cancelled.

YOGESH KHANNA, J AUGUST 24, 2017 M