M/S Prime Production Pvt Ltd vs Sanjeev Kumar & Anr
2017 Latest Caselaw 5654 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Decided on: 12th October, 2017

+                   CS(COMM) 643/2016

      M/S PRIME PRODUCTION PVT LTD                                  .... Plaintiff
                        Represented by:               Mr. Davinder Singh
                                                      Khatana, Adv. with AR
                                                      of the Plaintiff.
                                 versus

      SANJEEV KUMAR & ANR                                        .....Defendants
                       Represented by:                None.

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. Plaintiff is confining the present suit for grant of the following reliefs:

i. A decree of permanent injunction restraining the Defendant No. 1 and 2, its directors, proprietors or the partners as the case may be, its principal officers, servants, dealers, distributors, agents, representatives, licensees and all others acting for and on behalf of Defendants from mentioning/ listing in their list and exhibiting, broadcasting, re- broadcasting, screening, communicating to the public and telecasting the movies mentioned in the list in question the cable TV rights of which are vested with the plaintiff.

ii. A decree of permanent injunction restraining Defendant No. 1 further circulating the list of movies in question and issuing cable TV rights to the cable operators.

iii. A decree of permanent injunction against Defendant No. 2 not to grant or in any manner transfer the copyrights of the films assigned to the plaintiff or any part thereof to any third person, party or organization as per terms of the agreements dated 17th May, 2008 and 18th October, 2008.

2. Summons in the suit were issued to the defendants vide order dated 2nd December, 2009 and an ex-parte ad interim order was granted in favour of the plaintiff and against the defendant No.1 restraining defendant No.1, his directors, proprietors or the partners as the case may be, his principal officers, servants, dealers, distributors, agents, representatives, licensees and all others acting for and on behalf of defendant No.1 from mentioning/listing in their list and exhibiting, broadcasting, rebroadcasting, screening, communicating to the public and telecasting the movies mentioned in the list in question, violating the cable TV rights vested with the plaintiff.

3. Learned counsel for defendant No. 1 and 2 entered appearance and written statements were filed on behalf of both the defendants. Interim injunction granted in favour of the plaintiff was confirmed vide order dated 20th September, 2011. Since defendant No. 2 stopped appearing he was proceeded ex-parte vide order dated 17th April, 2012.

4. After completion of pleadings, following issues were settled vide order dated 17th April, 2012:

1. Whether the plaintiff has copyright over the films as mentioned in the Schedule annexed with the plaint? (OPP)

2. Whether the suit of the plaintiff is hit by Section 61 of the Copyright Act, 1957 as alleged by defendant no. 1? (OPD)

3. Whether the defendants are copyright holders in perpetuity of 1247 films as alleged in the written statement? (OPD)

4. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? (OPP)

5. Whether the plaintiff is entitled to decree of rendition of accounts? (OPP)

6. Relief.

5. The right of the defendants to cross examine the plaintiff's witness was closed vide order dated 16th August, 2016 and vide order dated 9th February, 2017, defendant No. 1 was also proceeded ex-parte.

6. Plaintiff is a private limited company incorporated under the provisions of Companies Act, 1956 and is engaged in the business of production of Audio and Video Films/titles. The plaintiff also purchases the exclusive Cable TV rights of number of films from the assignors/copyright owners against valid consideration. The plaintiff has purchased the cable TV rights of around 2879 films/titles/video albums/ programs etc. from different producers/copyright owners. Plaintiff has authorized M/s Cine Prime Entertainment Pvt. Ltd. for carrying out the business of issuing cable TV licenses to the cable operators on its behalf.

7. On 1st January, 2009, Mr. Sanjeev Kumar (defendant No. 1) was appointed as the Vice Chairman of M/s Cine Prime Entertainment Pvt. Ltd. During the course of his employment with the plaintiff, defendant No. 1 attained knowledge about the mode of conducting business at the plaintiff company and gathered secret information regarding the sources of cable TV rights, details of cable TV operators in India etc.

8. On 13th July, 2009, plaintiff came to know from cable operators that an entity by the name of M/s. Unique Entertainment of which defendant No. 1 is the sole proprietor started issuing letters to various cable TV operators claiming to have the cable TV rights of about 1000 films and further circulated a list of about 1000 films in the market, the said list of 1000 films included the names of films of which the exclusive cable rights were vested with the plaintiff. Subsequently, the plaintiff contacted the original assignors of the films that were mentioned in the list circulated by defendant No. 1, M/s R. Films and M/s Rajshree Pravin Enterprises who verbally conveyed to the plaintiff that they had not assigned rights pertaining to any film to defendant No. 1.

9. Defendant No. 2 is one of the original assignors of cable TV rights of a number of films which were included in the list circulated by defendant No. 1 to the plaintiff.

10. On 28th July, 2009, plaintiff sent a legal notice to defendant No.1 with respect to the list of films circulated by defendant No.1, however, defendant No.1 did not reply to the aforesaid notice. On 28th July, 2009, the plaintiff sent a legal notice to defendant No. 2 as well informing him about the actions of defendant No.1. Defendant No. 2 replied to the aforesaid legal notice vide reply dated 2nd August, 2009 denying all the claims. Vide letter dated 17th August, 2009, defendant No. 2 admitted to plaintiff that defendant No. 1 had coerced defendant No. 2 to sign documents assigning the copyright of the films in the list in question to defendant No. 1 on the pretext that defendant No. 1 was functioning on behalf of plaintiff.

11. Plaintiff had also lodged a complaint with the Commissioner of Police, New Delhi on 12th August, 2009 against defendant No. 1 elaborating

the sequence of events that had culminated in defendant No. 1 violating the intellectual property rights of the plaintiff

12. Evidence by way of affidavit of Mr. Satish Kapoor was tendered vide Ex. PW-1/X. Memorandum of Association and Article of Association of plaintiff were proved as Ex. PW-1/A. Agreements/ assignments in favour of the plaintiff executed by different assignors were proved as Ex. PW-1/B (colly). Board resolution in favour of Mr. Satish Kapoor was proved as Ex. PW-1/C. Letter dated 1st February, 2009 whereby plaintiff had authorized M/s Cine Prime Entertainment Pvt. Ltd. for carrying out the business of issuing cable TV licenses to the cable operators on its behalf was proved as Ex. PW-1/D. Resolution dated 1st January, 2009 appointing defendant No. 1 as the Vice President of M/s. Cine Prime Entertainment Pvt. Ltd. and salary vouchers of defendant no.1 were proved as Ex. PW-1/E colly (to be read as Ex. P-1 to Ex. P-8). Letter dated 17th August, 2009 being the reply by defendant No. 2 was proved as Ex. PW-1/N. Copy of undertaking dated 5th October, 2009 was proved as Ex. PW-1/O. Complaint dated 12th August, 2009, given by plaintiff to the police against defendant No. 1 was proved as Ex. PW-1/P.

13. From the documents as placed on record though the plaintiff has proved the authorization and that it is the assignor of (315 + 51 + 150) total 516 films vide agreement exhibited as Ex.PW-1/B collectively with exclusive right to operate on the cable network, however no material whatsoever has been placed on record by the plaintiff to show that the defendants are infringing his rights except the complaint dated 12 th August, 2009 given by the plaintiff to the Police against defendant No.1 which does not prove infringement.

14. Considering the evidence on record and the documents filed by the plaintiff, this Court is of the opinion that plaintiff has failed to prove that the defendants have violated cable TV rights vested in the plaintiff. Plaintiff has also not proved the consequential damages. Consequently, the reliefs as prayed for in the suit cannot be granted to the plaintiff.

15. Suit is dismissed.

(MUKTA GUPTA) JUDGE OCTOBER 12, 2017 'ga/Anu'