Phonographic Performance Ltd vs Ht Media Ltd
2017 Latest Caselaw 876 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 2749/2011
       PHONOGRAPHIC PERFORMANCE LTD                         ..... Plaintiff
                           Through:     Mr N. B. Joshi and Ms Neena K.
                                        Gupta, Advocates.
                           versus
       HT MEDIA LTD                                      ..... Defendant
                           Through:     Mr Rahul Malhotra, Advocate.
       CORAM:
       HON'BLE MR. JUSTICE VIBHU BAKHRU
                    ORDER

       %            15.02.2017
VIBHU BAKHRU, J
I.A. 11095/2015

1. This is an application filed on behalf of the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 seeking amendment of the plaint. The plaintiff claims that it has stepped into the shoes of the owners of various sound recordings and is an assignee/ exclusive licensee of the sound recordings in question. It is further averred that the plaintiff company has been granted the exclusive right to enforce the copyright in the said sound recordings, including but not limited to granting licenses for the broadcast and public performance of such sound recordings, collecting royalties and initiating proceedings relating to infringement of the copyright. The plaintiff also seeks to implead Sony Music Entertainment India Pvt. Ltd. (hereafter 'Sony') as defendant no.2 as it claims to be exclusive licensee of Sony to administer the copyrights vested with Sony.

2. The applicant (plaintiff) had filed the aforementioned suit as a

Copyright Society registered under Section 33(3) of the Copyright Act, 1957 (hereafter 'the Act'). The plaintiff had claimed that by virtue of its registration under Section 33 of the Act, it was entitled to obtain exclusive authorisation to administer copyright in sound recordings owned by its members; to issue licenses of sound recordings for exploitation by the third parties; and also to collect licence fee from the third party users.

3. The plaintiff claims that it is necessary to amend the plaint on account of subsequent events, which are indicated hereunder.

4. The Act was amended by virtue of the Copyright (Amendment) Act, 2012 and by virtue of Section 33(3A) of the Act, which came into effect on 20.06.2012, read with the Copyright Rules, 2013 that came into effect on 14.03.2013, the existing Copyright Societies - such as the plaintiff - were required to obtain registrations under the amended provisions within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2012. The plaintiff further claims that it had made an application for such registration on 09.05.2013. However, no orders were passed by the Central Government in respect of its application and, consequently, the plaintiff's registration as a Copyright Society lapsed. It is claimed that the plaintiff informed this to the Central Government and withdrew its application for registration.

5. The plaintiff (applicant) states that since it is no longer a registered Copyright Society, it is necessary for the plaintiff to amend the present plaint.

6. Mr Rahul Malhotra, the learned counsel for the defendant (non- applicant) does not dispute that the amendments sought to be made in the

plaint are directed towards the plaintiff asserting rights in its capacity other than as a registered Copyright Society.

7. Mr Malhotra earnestly contended that the claims made by the plaintiff are unsustainable and are barred by law. He submitted that as an assignee, the plaintiff would have no right to grant licenses as claimed. He also opposed the present application on the ground that the amendments now sought be made, effectively change the very nature of the suit.

8. I have heard the learned counsel for the parties.

9. The contentions advanced on the merits of the claims made by the plaintiff in this application are not required to be considered at this stage. It is trite law that while considering an application for amendment of the plaint, the Court is not required to consider the merits of the amendment sought to be made. (See: Lakha Ram Sharma v. Balar Marketing Pvt. Ltd.: (2008) 17 SCC 671).

10. The only question that remains to be addressed is whether amendments as sought would, if allowed, change the nature of the suit. In my view, the said question must be answered in the negative. The plaintiff had filed the present suit praying for a permanent injunction restraining the defendant from performing and communicating to the public the sound recordings in question, by way of a mechanical device and other means from a FM Radio Station located in the four cities, namely, New Delhi, Kolkata, Mumbai and Bangalore, except in accordance with law. The plaintiff had also sought damages. The prayers made in the plaint are not sought to be amended. The plaintiff is pursuing with its claim that broadcast of sound recordings by the defendant without licence is unlawful. Undoubtedly, the

plaintiff seeks to introduce pleadings to support the relief sought; however, that cannot lead to the conclusion that the nature of the suit is sought to be altered.

11. It is settled law that the principal question to be examined while considering an application for amendment is whether the amendments sought are necessary to bring out the real controversy between the parties. In Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors: (2006) 4 SCC 385, the Supreme Court had stated the above principle in the following words:

"As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused"

12. Indisputably, the amendments sought by way of the present application are necessary to bring out the real controversy between the parties and, therefore, the application ought to be allowed.

13. The Bombay High Court considered a similar application in Phonographic Performance Ltd. v. India Ratio Ventures Pvt. Ltd. & Sony Music Entertainment India Pvt. Ltd.: Chamber Summons No.597/2015 in Suit No. 1539/2012, decided on 13.10.2015. And, while allowing the application for amendment of the plaint, observed as under:-

"9. I also do not think this application necessarily alters the nature of the suit. The Plaintiff having withdrawn its application before the Copyright Board for re-registration as a Copyright Society, it is now irreversibly committed to its present status as an assignee or a licensee of the copyrights in question. There can be no going back on that. To drive the

Plaintiff to filing a fresh suit would I think be needlessly expensive and would considerably delay an adjudication of a materially unchanged claim. Prior to the proposed amendment, the Plaintiff claimed to be able to administer the copyrights in question as a Society. It now claims to have either an assignment or a license for those very works it earlier claimed to be able to administer. I do not think this constitutes an alternation of the nature of the suit at all. None of the rights of the Defendants are prejudiced in any manner if the amendment is allowed. As against that, the Plaintiff would be considerably prejudiced in terms of time, money and other expenses if the amendment is refused."

14. Mr Malhotra does not dispute that the controversy involved in the said case is identical to the one in the present application and has made no attempt to distinguish the said decision.

15. In view of the aforesaid, the application is allowed and the amended plaint is taken on record. Sony is impleaded as defendant no.2.

16. The application stands disposed of.

CS(OS) 2749/2011

17. Summons in the suit shall be served on defendant no.2. The summons shall go by the speed post as well as one of the approved couriers for the date fixed. Dasti in addition.

18. The defendants may file written statement(s) to the amended plaint within a period of four weeks from today. Replication, if any, be filed within a period of two weeks thereafter.

19. List before the Joint Registrar on 01.03.2017 for completion of pleadings.

VIBHU BAKHRU, J FEBRUARY 15, 2017 RK