South Asia Human Rights ... vs Suhas Chakma & Others
2017 Latest Caselaw 7241 Del

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

                              DECIDED ON : 15th DECEMBER, 2017

+                IA 6425/2015 in CS(OS) 840/2006
        SOUTH ASIA HUMAN RIGHTS DOCUMENTATION
        TRUST & OTHERS                                ..... Plaintiffs
                 Through : Mr.Jawahar Raja and Mr.Chinmay
                             Kanojia, Advocates
                      versus
        SUHAS CHAKMA & OTHERS                      ..... Defendants
                 Through : Mr.Nitesh Kumar Singh and
                 Ms.Neha, Advocates for D1 & D4.
                 Mr. Rajiv Takhi, Advocate for D2 & D3.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (Oral)

1. The instant suit for permanent injunction restraining infringement of copyright, unauthorized downloading, misappropriation and illegal use of database, delivery up, rendition of accounts, damages and for passing off has been filed by the plaintiffs. Case of the plaintiffs is that the defendants have infringed the original literary works of the plaintiffs and dishonestly and unauthorisedly downloaded the database. They continue to use the confidential unpublished researched data to the detriment of the plaintiffs. It was claimed that plaintiff No.1 is a registered Public Charitable Trust founded on 16.10.1993 (hereinafter 'TRUST'). As per the averments in the plaint, plaintiffs No.2 to 4 were the trustees of the 'TRUST'. The suit was filed on 15.05.2006 and ex-parte interim injunction was

granted in favour of the plaintiffs on 18.05.2006. The defendants filed written statement raising several preliminary objections. One of the objections was that the plaintiffs were not owners of the copyright and it belonged to the South Asia Human Rights Documentation Centre Pvt. Ltd. (hereinafter 'the Company') as such the suit was not maintainable. Issues were framed on 21.04.2008; issues No.1, 2, 3 & 4 were treated preliminary issues. During hearing of preliminary issues on 27.11.2008, the plaintiffs offered to implead the 'the company'. Consequently, IA 1654/2009 was allowed by an order dated 08.01.2010 and 'the company' was arrayed as plaintiff No.5. Written statement to the amended plaint was filed. IA 20391/2012 moved under Order I Rule 10 CPC by contesting defendants to delete names of plaintiffs No. 1 to 4 from the array of the parties was dismissed by an order dated 08.11.2012 by the Joint Registrar. OA No.143/2012 against the said order was subsequently withdrawn as not pressed on 15.04.2013.

2. Despite framing of issues on 21.04.2008 in this case and on 15.04.2013 in CS(OS) 2295/2006, no evidence has been recorded so far. By an order dated 24.01.2017, it was observed by this Court that the trustees / functionaries of the 'TRUST' and Asian Centre for Human Rights (ACHR), by contesting large number of proceedings were not discharging their duties properly. The Court also indicated to initiate proceedings under Section 92 of the Code of Civil Procedure, 1908 against both the 'TRUST' and the ACHR by issuing directions to the Administrator-General, Delhi.

3. Efforts to resolve the dispute through mediation did not yield result.

4. The contesting defendants averred in the IA in question for amendment that South Asia Human Rights Documentation Centre (hereinafter 'Society') was established as an unregistered society on 18.04.1991 by defendant No.1 along with others. The defendant No.1 along with others was the founding member of the said 'society'. Defendant No.1 was requested to function as Vice President; he was one of the first subscribers of the Memorandum of Association of the 'Society'. In the second week of June, 1991, it was decided by the Executive Committee of the 'Society' to open a bank account; on 06.07.1991, the 'Society' opened its bank account with Syndicate Bank, Kaushalya Park, Hauz Khas, Delhi. It was opened in the name of the 'Society' being account No.10106 (New No.9049/201/19851). It was stated that the 'Society' was an unregistered association of persons even after registration of the Trust. Sometime around 1992, the Executive Committee hired the plaintiff No.2 as Executive Director. For the purpose of administrative convenience both the plaintiff No.2 and Dr.Arun Mehta, Honorary Director were appointed as authorized signatories of the saving bank account of the 'Society' along with defendant No.1. It is further averred that when the plaintiffs did not file rejoinder in time, they were burdened with costs `1,000/- which were paid by a chque bearing No.976491 dated 20.05.2009 in favour of the defendant No.1 along with a forwarding letter dated 20.05.2009. The said cheque was signed by the plaintiff No.2. On receiving it, the defendant No.1 became suspicious of the

activities of the plaintiff No.2. The plaintiff No.2 had already denied the existence of the 'Society' in the present case. It was pleaded by the plaintiff No.2 that the 'TRUST' was neither established nor did it ever exist. To clear suspicion, an application under RTI Act was filed and Memorandum of Association of the 'Trust', copy of account opening form and other related documents were collected from the bank. On that, the defendant No.1 realized that after his resignation from the 'Trust' and the 'Company' on 11.03.2003, the plaintiff No.2 entered into a conspiracy with other plaintiffs on 14.03.2003 to misappropriate the funds exclusively meant for the 'Society'. Defendant No.1 who continued to be the Vice-President of the 'Society' filed a Civil Suit No.1370/2009 which was, however, withdrawn. Again, CS(OS) 213/2011 for declaration was filed. Criminal complaint has already been filed against plaintiffs No. 2 to 4 for siphoning of the funds of the society and summoning order has already issued on 29.11.2012. Matter was also investigated by CBI; closure report (annexure 'D9') was filed after investigation. Apparently, the plaintiffs have no locus standi to file the present suit. The entire case of ownership of the copyright over the purported infringed publications / materials as claimed by the plaintiffs is in fact owned by the 'Society' which is an altogether a distinct and separate legal entity. Since defendant No.1 was not in possession of all these material documents earlier, the proposed amendment could not be sought. It is further stated that the relevant documents have already been placed on record while filing the written statement on 28.09.2011. It was, however, not taken on record in the absence of

specific leave for seeking amendment in the written statement. It is urged by the learned counsel for the contesting defendants that the proposed amendments are necessary for adjudication of all the legal and factual questions involved in the present suit. The amendment sought is bonafide and would cause no prejudice to the plaintiffs as the matter is still at its preliminary stage. Reliance was placed on 'L.T.Foods Ltd. vs. Sachdeva & Sons Rice Mills Ltd. & Ors.', 215 (2014) DLT 39 (DB); 'Sushil Kumar Jain vs. Manoj Kumar & Anr.', 2009 (14) SCC 38; 'Sampath Kumar vs. Ayyakannu & Anr.', 2002 (7) SCC 559; 'Dibya Prasad Pradhan & Anr. Vs. State of Sikkim', AIR 2011 SIKKIM 1; 'J.Samuel & Ors. vs. Gattu Mahesh & Ors.', 2012 (2) SCC 300 and 'Surender Kumar Sharma vs. Makhan Singh', 2009 (10) SCC 626.

5. Learned counsel for the plaintiffs urged that the proposed amendment cannot be allowed as it is highly belated and would change the nature and character of the suit. The proposed amendment is malafide, worthless and dishonest. Till 2009, the contesting defendants did not claim if there was an entity by the name of 'Society' which was entirely distinct from plaintiff No.1 or the 'Company' set up by plaintiff No.1 i.e. plaintiff No.5. Moreover, the defendants did not choose to amend the written statement for around six years. Rather frivolous applications one after the other were filed to delay the proceedings. By moving the application in question, the defendants seek to withdraw 'admissions' in the written statement. The proposed amendment shall fundamentally change the nature and character of the suit and is not imperative for proper and effective

adjudication of the dispute. A fresh suit on the amended claims would be barred by limitation on the date of application. Reliance was placed on 'Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors.', 2009 (15) (Addl.) SCR 103; 'Voltas Limited vs. Rolta India Limited', 2014 (4) SCC 516 and 'Modi Spinning & Weaving Mills Co. Ltd. & Anr. Vs. Ladha Ram & Co.', 1977 SCR (1) 728.

6. In the plaint, it was specifically averred by the plaintiffs that the plaintiff No.1 the 'TRUST' was a registered Public Charitable Trust founded on 16.10.1993. In the written statement, the defendants did not raise any objection to it. It was, however, pleaded that the 'TRUST' was in existence from the year 1990 itself; it worked as an unregistered organisation till 1993. The defendant No.1 joined the 'TRUST's in 1991 and was appointed as 'the trustee'. In March, 2003, he was forced to resign from the trusteeship of 'The TRUST' as he refused to become a signatory of foreign bank accounts of the 'TRUST' and its sister organisations at the instance of plaintiff No.2 Ravi Nair. After resigning from 'the TRUST' in March, 2003, the defendant No.1 along with other social activists got registered the Trust ACHR on 27.03.2003. Apparently, in the written statement, the defendants did not deny the existence of the 'TRUST' in question. Subsequently, on the basis of the pleadings of the parties and the documents on record issues were framed on 21.04.2008. Issues No.1 to 4 were taken as preliminary issues. However, by an order dated 27.11.2008 on the plaintiffs' assurance to implead South Asia Human Rights Documentation Centre Private Limited as co-plaintiff with a Board resolution passed by the said company, the plaintiffs were

permitted to implead the 'Company' as plaintiff No.5 by a detailed order dated 08.01.2010.

7. By moving the application to seek amendment in the written statement, the defendants intend to urge that plaintiff No.1 'TRUST' was established as an unregistered society on 18.04.1991 by the defendant No.1 along with others and he was one of its founding members. The plaintiff No.2 who was appointed as Executive Director of the said 'Society' and was one of the authorized signatories in the bank account has, with a malafide intention of usurping and misappropriating the funds, claimed that the ownership of the copyrights over the purported infringement publications or materials belonged to him (plaintiff No.2). The plaintiffs have no locus standi to file the present suit as in fact these are owned by the 'Society' which is altogether a distinct and separate legal entity. This stand was never taken by the defendants in the various proceedings in the suit. A complaint case under Section 200 Cr.P.C. was filed by the defendant No.1 against plaintiffs No.1 & 2 for commission of offences under Sections 63 and 64 Copyright Act and Sections 379/406 IPC on 30.08.2006. In para 14 it was mentioned that the accused No.1 was serving as Executive Director of accused No.2 i.e. SAHRDC since the time of its inception; he was in charge of and responsible to SAHRDC for the conduct of its daily activities. Its principal office was at B6/6, Safdarjung Enclave Extension, New Delhi. It was further mentioned in para No.16 that the complainant was associated with accused No.2 from 1991 to 2003. It was not at all revealed in the complaint if there were two entities, one established in 1990 (the 'Society') and the other

in 1993 (the 'TRUST'). The defendants also filed complaint under Section 190 Cr.P.C. against the plaintiffs No.1 to 4 for commission of various offences on 25.09.2010. In para 8 of the complaint, it was mentioned that Ravi Nair was an Indian national and presently serving as the Director of the company, (SAHRDC) since the time of its inception. In para No. 11, it was mentioned that the complainant and plaintiff No.2 were known to each other since 1990 being active in the field of human rights and they formed a trust namely South Asia Human Rights Documentation Trust (SAHRDT), a Public Charitable Trust in the year 1993 in order to further their common cause. It was further mentioned in para 12 that on 28.09.1998 the complainant and the accused No.2 (plaintiff No.2) got incorporated a private limited company i.e. plaintiff No.5 under the provisions of the Act. A civil suit CS(OS) 1370/2009 was filed by the defendants No.1 on 12.10.2009 for declaration. It was averred in para 2 that in / around October, 1990 the plaintiff (defendant No.1 here) along with defendants No.2 to 7 ("plaintiffs No.1 & 2 besides other") founded defendant No.1 namely South Asia Human Rights Documentation Centre, an unregistered organisation. The plaintiff along with defendants No.2 to 7 were / are the founding members as well as members of the governing body of the defendant No.1. At the time of formation of the defendant No.1, defendant No.2 was appointed as its President and defendant No.3 (plaintiff No.2 here) was the Secretary. It was further averred that the plaintiff along with defendants No.2 to 7 were the first subscribers of / to the Memorandum of Association of the defendant No.1. The Memorandum of Association was signed by

all including the plaintiff No.2 Ravi Nair, Secretary. The defendant No.1 opened its bank account with Syndicate Bank after completing the required formalities. On 16.10.1993 the plaintiff jointly with defendants No.3 and 6 was appointed as one of the first trustees of the South Asia Human Rights Documentation Trust (the 'TRUST'). Thereafter, the plaintiff along with defendant No.3 incorporated South Asia Human Rights Documentation Private Limited (the Company) (plaintiff No.5). Due to various differences between the plaintiff and defendant No.3 (plaintiff No.2 here), the plaintiff resigned from the directorship of the company as well as the trustees of the trust on 11.03.2003. Again in this suit, there was no averment of existence of three entities. The defendant No.1 emphasized that there were only two legal entities i.e. plaintiffs No.1 and 5 herein.

8. On 19.07.2010, the defendant No.1 herein opted to withdraw the suit without seeking opportunity to file a fresh suit on the same cause of action. Again, the defendant No.1 filed another suit CS(OS) 213/2011. The plaintiff No.2 was a party in the said suit for declaration, permanent injunction and mandatory injunction etc. it was reiterated in the said suit in para No.2 that in / around October, 1990, the plaintiff along with certain other persons came together in the name and style of "South Asia Human Rights Documentation Centre". The first centre remained unregistered. Thereafter in the year 1991, the plaintiff set up another unregistered body under the name and style of "South Asia Human Rights Documentation Centre". In April, 1991, the plaintiff and defendants No.1 to 4 opened a joint bank account No. 10106 with Syndicate Bank, it was to be operated by the plaintiff and

defendants No.1 & 2. In 1992, the Executive Committee of the second centre which was formed only for convenience purposes, employed the defendant No.5 (plaintiff No.1 here) as Executive Director for administrative convenience. The plaintiff jointly with defendant No.5 (Ravi Nair) and Arun Mehta was appointed as one of the trustees of the South Asia Human Rights Documentation Trust, registered Public Charitable Trust vide Trust Deed dated 16.10.1993. However due to various differences, the plaintiff resigned from the position of the trustee of the trust on 11.03.2003. It was urged that South Asia Human Rights Documentation Centre (SAHRDC) (the 'Centre'), South Asia Human Rights Documentation Trust (SAHRDT) (The 'TRUST') and South Asia Human Rights Documentation Private Limited (SAHRD Pvt. Ltd.) (Company), with a distinctive executive boards, were different entities. This fact was deliberately and dishonestly concealed by the plaintiff No.1.

9. On perusal of the record, it reveals that inconsistent and conflicting stands have been taken by contesting defendants at different stages of the trial in different proceedings. The defendant No.1 who claims to be the founding member of the 'Society' registered in 1990 is not expected to be unaware of its constitution and not to challenge the legality and validity of the TRUST registered in 1993. By this amendment, the contesting defendants cannot be permitted to blow hot and cold and to withdraw the specific admissions made in the pleadings.

10. Specific issue regarding the locus standi of the plaintiffs has already been settled. It is for the plaintiffs to establish their case

during trial and to prove if the copyrights in question are owned by the plaintiff No.1 established in 1993. The proposed amendment that there exited an unregistered trust in 1990 and the copyrights of the infringed articles in question belonged to it, if proved, would disentitle the plaintiffs to seek the relief claimed in the suit. No plausible justification has been given by the contesting defendants as to why the amendment was not sought at the earliest. Though the issues were framed in 2008, not a single witness has so far been examined due to filing of various miscellaneous applications and FAOs. Only motive of the defendants to file the IA in question seems to delay the proceedings.

11. In the light of the above discussion, I find no merit in the application and it is dismissed.

12. Observations in the order shall have no impact on merits of the case.

CS(OS) 840/2006 & I.A. Nos. 10889/2006 (u/O 39 R 2 CPC), 13353/2013 (u/O 14 R 5 CPC), 6285/2014 (u/O 13 R 10 CPC), 891/2017 (u/O 7 R 11 CPC), 8791/2017 (u/S 151 CPC) and Crl. M.A.1389/2017 (u/S 340 Cr.P.C.)

List the matter before Roster Bench on 20th December, 2017.

(S.P.GARG) JUDGE DECEMBER 15, 2017 / tr