Gulf Dth Fz Llc vs Dishtv India Limited & Others
2017 Latest Caselaw 6982 Del

$~2(CS)
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             DECIDED ON : 5th DECEMBER, 2017
+                    CS(COMM) 1236/2016
       GULF DTH FZ LLC                           ..... Plaintiff
                Through : Mr.Rajiv Nayar,Sr.Advocate, with
                          Mr.Rishi Agrawala and Ms.Niyati
                          Kohli, Advocates.
                          versus

       DISHTV INDIA LIMITED & OTHERS           ..... Defendants
                Through : Mr.Sandeep Sethi, Sr.Advocate, with
                          Mr.Rohan Swarup, Advocate, for D-1.
                          Mr.Yatinder Garg, Advocate, for D-3.
                          Mr.Saurabh Agarwal with Ms.Komal
                          Mundhra, Advocate, for D-6.
                          Mr.Dhavish Chitkara, Advcoate, for
                          D-7&8
                          Mr.Sajad Sultan with Mr.Surinder
                          Kant, Advocates, for D-10.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Oral)

IA Nos.8641/17 (u/S 151 CPC) and 8649/17 (u/O 1 R-10 CPC)

1. IA 8641/2017 has been filed on behalf of the plaintiff to issue directions to the Chairman, Central Board of Excise and Customs Department of Revenue; Ministry of Finance Government of India and its underlings to restrict and prohibit the export of "Dish TV", "Dish HD Plus", "Chang Hong" set top boxes (STBs), smart

cards and remote control units having Harmonised System Code / Identification No.85287390 from India to any destination outside India. Simultaneously, IA No.8649/2017 under Order I Rule 10 CPC has been filed to implead the said bodies as defendants in the present suit. Both the IAs are contested by the defendants.

2. I have heard learned Senior Counsel for the parties and have examined the file. Learned Senior Counsel for the plaintiff urged that both these IAs need to be allowed for effective enforcement of the orders dated 30.08.2016 and 24.10.2016 whereby the defendants were restrained; (a) from distributing STBs and smart cards in the OSN Territory; (b) from in, any manner dealing with dealers, distributors, agents or any entity which directly and / or indirectly sells defendant No.1 STBs and smart cards and / or recharges defendant No.1 pay-TV services in the OSN Territory; (c) from in any manner, receiving subscription revenue from overseas except legitimate subscription revenues from Sri Lanka; and, (d) from activating any smart cards for use by customers in the OSN Territory. It is averred that not notwithstanding the orders dated 30.08.2016 and 24.10.2016, large number of STBs, smart cards and remote control units are being exported from India to the United Arab Emirates directly or indirectly. It is the duty of every government body to assist in the enforcement and also implement the orders passed by this Court.

3. Learned Senior Counsel for the defendants would urge that the IAs are not maintainable. Presence of the government bodies in the present suit is not necessary; neither were they served with any notice under Section 80 CPC. The impugned orders did not put any

restraint on any third party having no connection with the defendant No.1 from exporting STBs from India to any country in the world. The relief sought by the plaintiff in the IAs is beyond the final reliefs sought in the suit.

4. The present suit was filed on 16.11.2015. The plaintiff was, however, not granted any interim relief. Only by an order dated 30.08.2016 interim relief as detailed in the preceding para was granted. The said order was challenged in FAO (OS) No. 271/2016, it resulted in dismissal. Paras 25 and 26 of the order are relevant to note:

"25. Before bringing the curtains down, we must recite a mantra. Against the part of the impugned order declining right to file a written statement a separate appeal has been filed and should the appeal succeed and the appellant is able to plead a defence it may require a re-look at the injunction granted and for which we declare that the appellant would have a right to move an application under Order 39 Rule 4 of the Code of Civil Procedure. The cue to the possible defence was that the content holder provides signals of the broadcast to the respondent No.1 with advertisements, breaks etc. for the OSN Territories and the same content holder provides signal of the broadcast to the appellant with advertisements, breaks etc. for the territories in India and Sri Lanka and thus what is down loaded by the consumers of set-up boxes and Smart Cards of the appellant in OSN Territories is not the broadcast which the first respondent receives and hence there is no copy right violation. Whether mere insertion of different advertisement in the content results in two copyrightable contents would then become a matter of debate. In the absence of a

written statement as of now, the appellant cannot even open up the debate.

26. The appeal is accordingly dismissed but without any order as to costs. The mantra above shall remain."

5. No effective proceedings have been carried out subsequent to that. Not a single witness has so far been examined.

6. Regarding impleadment of the government bodies, I find no merit in it. No relief in the suit has been claimed against them. It has not been explained as how and in what manner their presence in the suit is necessary for adjudication of the disputes between the parties. These bodies are specific mandate to perform their duties under law. No specific directions as such are required to remind them to perform their duties. Nothing has come on record to infer if these bodies did not act as and when violation of any law / rule was brought to their notice. At no stage, the plaintiff lodged any complaint with these bodies for violation of the impugned orders. The defendants have categorically denied to have exported any such article to which the restraint orders are applicable. The plaintiff's apprehension is imaginary and uncalled for. The restraint order is only qua the defendants and if there is any deliberate violation under order XXXIX Rule 2A CPC remedy has been provided for. In the absence of any overt-act on the part of the defendants, no blanket directions can be given to the government bodies. The plaintiff has failed to point out any specific infraction of the orders of this Court by the defendants.

7. The IAs are dismissed.

CS(COMM) 1236/2016 List before the Roster Bench on 15th December, 2017 for further directions.

(S.P.GARG) JUDGE DECEMBER 05, 2017 / tr