The Indian Performing Right ... vs Anil Mehra & Anr
2017 Latest Caselaw 2505 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CS(OS) 632/2006

        THE INDIAN PERFORMING RIGHT SOCIETY LTD ..... Plaintiff
                      Through: Mr. Dayan Krishnan, Sr. Adv. with
                               Ms. Anu Bagai, Mr. Himanshu Bagai
                               and Ms. Akaashi Lodha, Advs.

                                 Versus

        ANIL MEHRA & ANR                                      ..... Defendants
                     Through:             Mr. Sandeep Sethi, Sr. Adv. with Mr.
                                          Setu Niket and Ms. Esha Majumdar,
                                          Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                                 ORDER

% 18.05.2017

IA No.4829/2017 (of D-2 for refund of monies paid to plaintiff)

1. The senior counsel for the plaintiff/non-applicant states that the written submissions on the application were filed in the Registry yesterday.

2. The same are not on record.

3. The senior counsel for the plaintiff has handed over a copy of the written submissions along with annexures in the Court and which are taken on record.

4. The application has been heard.

5. The plaintiff instituted this suit inter alia for permanent injunction restraining the defendant No.2 Radio Today Broadcasting Pvt. Ltd., of which the defendant No.1 is a Director, from causing the broadcast or broadcasting / performing or communicating to the public literary and/or musical works of the plaintiff‟s society or those of the foreign sister society of the plaintiff or any other works of the plaintiff without obtaining a licence from the plaintiff.

6. The suit came up before this Court first on 18 th April, 2006 when the counsel for the defendants/applicants also appeared.

7. Summons of the suit and notice of the application for interim relief were issued and though a reading of the order dated 18th April, 2006 shows that the counsel for the plaintiff pressed for ad-interim injunction but on the statement of the counsel for the defendants that the defendants as of then had not obtained licence for broadcasting and will give advance intimation to the plaintiff of at least fifteen days before commencing broadcasting, the consideration of the application for interim order was deferred till the next date of hearing.

8. Though there were several dates of hearing thereafter but the application for interim relief was not heard.

9. When the matter was listed on 10th May, 2007, the following order was passed:

"CS(OS)No.632/2006 and IA.No.5080/2007 and 8739/2006 When this matter was listed on 18.4.2006, learned counsel for the parties had agreed that no interim orders be passed as the defendant was yet to get the licence to broadcast; and parties had agreed that they would inform the Court 15

days in advance.

Due to paucity of time, it is not possible to hear this matter fully. As per the defendant no amount of licence fee is payable to the plaintiff. However, as per the plaintiff they are entitled to licence fee of Rs.1250/- per needle hour.

Learned counsel for the plaintiff relies on the orders of the Calcutta High Court as well as of the Bombay High Court, directing the defendants to pay Rs.660/- per needle hour, as an interim measure. Learned counsel for the defendant submits that even before the Bombay High Court they had refuted the same and that in fact only Rs.250/- per needle hour should be charged. Learned counsel for the defendant relies on an order of the Calcutta High Court wherein it has been mentioned that Radio Mirchi is paying Rs.250/- per needle hour. Learned counsel for the plaintiff on the other hand submits that Radio Mirchi is paying Rs.250/- per needle hour, as per the old agreement and the present rate is Rs.1250/- per needle hour.

Be that as it may, for the interim measure the defendant is directed to pay Rs.500/- per needle hour, till the next date of hearing. In case the defendant succeeds, the plaintiff will refund the money. This order is being made without prejudice to the rights and contentions of the parties.

List the application under Order 39 Rules 1 and 2 CPC filed by the plaintiff and application under Section 10 of the CPC filed by the defendant, for hearing before the Court on 2.8.2007.

Parties are directed to compete the pleadings in the meanwhile.

The date of 22.05.2007, stands cancelled."

10. The aforesaid order continued.

11. The defendants filed an application under Section 10 of the Code of Civil Procedure, 1908 (CPC) and which was allowed vide order dated 14 th December, 2009 and the proceedings in the suit stayed sine die with liberty to the parties to revive the suit after the decision of the Calcutta High Court.

12. The defendants filed IA No.15820/2011 for recall of the order dated 10th May, 2007 and for disposal of the application for interim relief. The said application also remained pending for over five years, when ultimately on 26th July, 2016, the following order was passed:

"1. The counsels state that the proceedings in the present suit have already been stayed vide order dated 14th December, 2009 on an application of the defendants under Section 10 of the CPC.

2. However notwithstanding the same, the matter is being listed owing to certain pending applications.

3. The counsels have been heard.

4. Of the pending applications, IA No.5080/2007 (of defendants for taking on record certain facts) and IA No.15665/2009 (of plaintiff for hearing of IA No.6739/2006) are stated to have become infructuous and are accordingly disposed of.

5. Vide order dated 10th May, 2007 on IA No.4210/2006 (of plaintiff u/O 39 R-1&2 CPC), the defendants, instead of being restrained as was sought, were as an interim arrangement directed to make payment at certain rates to the plaintiff.

6. The counsel for the plaintiff states that the defendants have been making the said payment till now.

7. The defendants filed IA No.15820/2011 for recall of the order dated 10th May, 2007.

8. It is stated that the Division Bench of this Court in another matter held that the plaintiff is not entitled to collect royalty charges for its members or to act as a copyright society. It is further stated that the plaintiff has preferred an appeal to the Supreme Court against the said order of the Division Bench of this Court and which appeal is being heard but there is no stay of the judgment of the Division Bench. The counsel for the defendants thus seeks recall of the order dated 10 th May, 2007 directing the defendants to make payment to the plaintiff.

9. The fact of the matter however remains that the defendants are not entitled to broadcast or perform or communicate to the public literary or musical works in which

the plaintiff earlier functioning as a copyright society had a right and which right of the plaintiff is now under consideration before the Supreme Court. However the doubt cast on the right of the plaintiff will still not vest a right in the defendants to violate the copyright. The copyright in the said works, if not in the plaintiff, will vest in the authors of the said literary and / or musical works.

10. The counsel for the defendants is also not able to dispute the aforesaid position.

11. In this state of affairs, IA No.4210/2016 and IA No.15820/2011 are disposed of with the following directions:

(I) The defendants will no longer be bound to make payment to the plaintiff in terms of the order dated 10 th May, 2007;

(II) However, the defendants are restrained from broadcasting or performing or communicating to the public any literary and / or musical work in which the plaintiff earlier claimed a copyright, without taking licence / permission therefor from the person who may be now holding the copyright in the said works.

12. The suit is adjourned sine die with liberty to the parties to apply for revival thereof as and when the occasion arises."

13. The defendants have now filed this application for refund to the defendant No.2 of the monies paid by the defendants to the plaintiff pursuant to the order dated 10th May, 2007.

14. This application came up before this Court first on 21st April, 2017 when the following order was passed:

"IA No.4829/2017 (of the defendant no.2 for refund of the monies paid to the plaintiff).

1. Though on perusal of the application it appears that the application has to be allowed as the prayer sought therein is nothing but in terms of earlier order dated 10th May, 2007 and the counsel for the plaintiff also appears on advance notice but requests for the

matter to be taken up on 18th May, 2017 as already scheduled.

2. List on 18th May, 2017 as already scheduled."

15. The senior counsel for the plaintiff has argued (i) that the claim of the plaintiff in the suit is not only on the premise of the plaintiff being a Copyright Society within the meaning of Section 33 of the Copyright Act, 1957 but also as the owner of the copyright; (ii) that owing to the judgment of the Supreme Court in International Confederation of Societies of Authors and Composers (CISAC) Vs. Aditya Pandey 2016 SCC OnLine SC 967 only the rights of the plaintiff as a Copyright Society are under a cloud;

(iii) that the proceedings in this suit were stayed owing to the suit under Section 60 of the Copyright Act filed by the defendants against the plaintiff in Calcutta High Court; (iv) that this Court in the order dated 26 th July 2016, though vacating the order dated 10th May, 2007, restrained the defendants from broadcasting or performing or communicating to the public any literary and/or musical work in which the plaintiff without taking licence/permission therefor from the persons who may be now holding the copyright in the said works; (v) the defendants even after the order dated 26th July, 2016 have made one payment to the plaintiff on 9th September, 2016; (vi) that the order dated 10th May, 2007 made the plaintiff liable to refund the monies received only in the event of the plaintiff ultimately failing in the suit and which stage had not arisen; (vi) that this Court has in CS(OS) No.666/2006 already heard substantial arguments on the rights of the plaintiff; (vii) that thus the question of the plaintiff at this stage being directed to refund the monies does not arise.

16. Needless to state that the senior counsel for the defendants has controverted.

17. I have considered the rival submissions.

18. I am unable to accept the contention that the words "in case the defendant succeeds, the plaintiff will refund the money" in the order dated 10th May, 2007 refer to the defendants succeeding in the main suit. The said words have to be read and understood in the context in which they were used. I have already hereinabove recorded that on 18 th April, 2006 the consideration of the application of the plaintiff for interim orders was deferred owing to the statement made by the counsel for the defendants of the defendants till then having not obtained broadcasting licence. It appears that the defendants received broadcasting licence soon thereafter but for one reason or the other, the court could not hear the application of the plaintiff for interim relief. Similarly, on 10th May, 2007 also, the Court "due to paucity of time" was not in a position to hear the application of the plaintiff for interim relief. It was in these circumstances that as an "ad interim measure" i.e. till the decision of the application of the plaintiff for interim relief, the direction made on 10th May, 2007 for payment by the defendants to the plaintiff was made with the clarification that if the defendants ultimately succeed in the application, the plaintiff would be liable for refund of the monies.

19. Thereafter the proceedings in the suit got stayed. Though the senior counsel for the plaintiff states that the defendants (plaintiffs in the Calcutta suit) after having obtained stay of proceedings in this suit are dragging their

feet in the Calcutta High Court as well but this Bench cannot be unmindful of the factum of the proceedings having been stayed. Though at one time it appeared that the said order dated 14th December, 2009 staying further proceedings in the suit has attained finality but the senior counsel for the plaintiff on instructions states that an appeal has been preferred thereagainst and which is pending consideration.

20. Thus, the application for interim relief remained to be heard.

21. The defendants though applied within two years of the order dated 14th December, 2009 for recall of the order dated 10th May, 2007 and for disposal of the application for interim relief but the said application which remained pending and whereafter the aforesaid order dated 26th July, 2016 was made.

22. The order dated 26th July, 2016 also has been allowed to attain finality. The result is that the application for interim relief of the plaintiff being IA.No.4210/2006 (in para 11 of the order dated 26th July, 2016 incorrectly mentioned as IA.No.4210/2016) stands dismissed with the directions issued on 26th July, 2016.

23. With the dismissal of IA.No.4210/2006 on 26th July, 2016, in my view, in terms of the order dated 10th May, 2007, the defendants became entitled to refund of the monies paid.

24. As far as the contention of the senior counsel for the plaintiff, of the plaintiff being entitled to monies as owner also in terms of direction (II) in para 11 of the order dated 26th July, 2016 is concerned, the Court on 26th July, 2016 has not gone into the said aspect and has directed the defendants

to pay licence fee to the person who may be holding the copyright in the said works. The said direction is prospective i.e., after 26th July, 2016. Under the said direction, the plaintiff cannot claim to hold the monies which were paid under the interim order.

25. The Supreme Court as far back as in Abhimanyoo Ram Vs. State of Uttar Pradesh (2008) 17 SCC 73 followed in Ruchika Cables Pvt. Ltd. Vs. The Secretary (Labour) 2010 (117) DRJ 73 and which has thereafter also been consistently followed has held that it is the bounden duty of the Court which has issued interim order to subsequently ensure that the equities flowing from such interim order are balanced. Here, this Court having directed the defendants to pay certain monies to the plaintiff with the assurance of refund pending the hearing on the application for interim relief, it is the duty of this Court to, after the application of the plaintiff for interim relief has been dismissed in favour of the defendants, ensure that in terms of the order dated 10th May, 2007, the monies are refunded to the defendants.

26. The senior counsel for the plaintiff has also contended that this application is premised purely on CS(OS) No.1185/2006 titled India Performing Right Society Vs. Aditya Pandey and which has nothing to do with the matter which is being argued in CS(OS) No.666/2006.

27. The aforesaid aspect has no bearing to the reasoning given hereinabove for holding the defendants to be entitled to refund of the monies.

28. I may at the end record that there was some controversy about the plaintiff having not had a chance to file reply to this application. It was urged that the reply could not be filed owing to this Court having not issued

notice of this application.

29. In my view, once the Court on 21st April, 2017 deferred allowing the application on the request of the counsel for the plaintiff, it is not open to the plaintiff to take such a plea. Moreover, if reply was sought to be filed and qua which it was suggested that the Registry did not accept the same without notice having been issued, an application in that regard could have been moved. Furthermore, even on asking, no reply which may have been returned by the Registry, has been shown.

30. I have enquired whether there is any controversy about the amount claimed in the application to be due.

31. The senior counsel for the defendants states that the computations of the amount are contained in para 6 of the application.

32. The senior counsel for the plaintiff on instructions states that the same have not been verified.

33. Unless the plaintiff within one week makes an application disputing the amounts as set out in this application, the plaintiff to, within two months, refund to the defendants an amount of Rs.3,84,15,601/- claimed to have been paid by the defendants to the plaintiff under the interim order dated 10 th May, 2007. The refund to be made in the name of the defendants No.2 TV Today Network Limited.

34. The senior counsel for the defendants also presses for interest.

35. This aspect shall be considered as and when the proceedings are revived.

36. The application is disposed of.

IA.No.4706/2017 (of D-2 u/S 151 CPC)

37. The senior counsel for the plaintiff under instructions has no objection.

38. Allowed and disposed of.

CS(OS) No.632/2006

39. For the reasons stated in IA.No.4829/2017 above, the defendant No.2 Radio Today Broadcasting Pvt. Ltd. is substituted with TV Today Network Limited.

40. Amended Memorandum of Parties be filed within one week.

RAJIV SAHAI ENDLAW, J.

MAY 18, 2017 „bs‟