Delhi High Court
Surbhi Puranik @ Surabhi Puranik vs Mash Audio Visuals Pvt Ltd & Ors on 22 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 22nd September , 2017
+ CS(COMM) 205/2017
SURBHI PURANIK @ SURABHI PURANIK ..... Plaintiff
Represented by: Mr. Amit Gupta, Ms. Mansi
Kukreja, Advs.
versus
MASH AUDIO VISUALS PVT LTD & ORS ..... Defendant
Represented by: Mr. Bharat Gupta, Adv. for
D-1.
Mr. Manish Singhal, Adv. for
D-2.
Mr. Pramod Kumar, Adv. for
D-3.
Ms. Mary Mitzy, Mr. Gopal,
Advs. for D-6.
Mr. Ronak Karanpuria, Mr.
Sumit, Advs. for D-7.
Mr. Atul Tripathi, Ms. Shikha
Bhoria, Advs. for D-8.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
IA 7062/2017
1. By this application under Order VI Rule 17 CPC read with Section
151 CPC plaintiff seeks amendment of the plaint. In the plaint the plaintiff
has sought a decree of permanent injunction restraining infringement and
passing off the trade mark and restraining the defendants No.2 to 10 from
using or publicizing or projecting the profile of the photographs of the
plaintiff taken by the defendant No.1 besides damages. The case of the
plaintiff in the suit is that she has been working as a fashion model and is
now appearing in movies. Before her start of career in 2013 in the movies
she has done photo shoots with the defendant No.1 company in the year
2012-13 for a paltry sum when her signatures were received on payment
receipts. Claim of the plaintiff is that the defendant No.1 represented that
her photographs would be used by defendant No.1 company for a limited
duration of two years and thus the plaintiff agreed to the same. However,
the plaintiff found that the defendant No.1 is permitting the photos of the
plaintiff to be used by the defendant Nos.2 to 10 without her approval and
authorization in respect of various products/ services of defendant Nos.2 to
10 on hoardings, Kiosks, leaflets, print media etc.
2. On summons being issued, defendant No.1 company which took the
photo shoots of the plaintiff filed the written statement and documents to
show that the Model Release Forms with the photographs of the plaintiff
were duly signed by her. Claim of the defendant No.1 is that the defendant
No.1 owns irrevocable, unrestricted, worldwide and perpetual rights in the
photo shoots of the plaintiff.
3. Pursuant to the written statement and Model Release Forms filed by
defendant No.1, plaintiff seeks the present amendment in Paras 11 by
including the averment that it is for the first time from the documents filed
that she has realised that certain agreements were entered into between the
parties and those documents were signed by the plaintiff under the mistaken
belief on the basis of what was conveyed to her orally. It is claimed that the
plaintiff never consented by signing such documents. Consequential
amendments in the prayer clause have also been sought seeking a decree of
declaration declaring the 9 Model Release Forms as null and void.
4. In the reply filed by defendant No.1 the claim of defendant No.1 is
that the amendments sought by the plaintiff are not bona-fide. It is not the
case of the plaintiff that she did not sign the Model Release Form. Thus
facts were deliberately concealed in the plaint so as to avail of an ex-parte
ad-interim order. It is further contended that the proposed amendment
would constitutionally and fundamentally change the nature and character of
the suit and that the amendment sought to be introduced in the plaint are
beyond the period of limitation.
5. Having heard learned counsel for the parties this Court finds that by
the proposed amendments the plaintiff seeks a further decree of declaration
in respect of 9 Model Release Forms dated 22 nd August, 2012, 7th August,
2013, 10th August, 2013, 6th November, 2013, 26th November, 2013, 10th
December, 2013, 8th January, 2014, 16th January, 2014 and 18th February,
2014. The claim of the plaintiff in the suit or even in the amendment is not
that she did not sign the Model Release Forms, however it is stated that the
same were taken during the photo shoots and believing the representation of
defendant No.1 that they were for a year or two she signed the same.
Documents bear the date of signature and in the plaint initially the
averments are that she was made to sign certain documents and during the
photo shoots her signatures were received on the payment receipts.
6. In Revajeetu Builders and Developers Vs. Narayanaswamy and Sons
& Ors. (2009) 10 SCC 84 Supreme Court laid down the factors which are
required to be considered while dealing with an application for amendment
as under:
"67. On critically analyzing both the English and Indian
cases, some basic principles emerge which ought to be taken
into consideration while allowing or rejecting the application
for amendment.
(1) Whether the amendment sought is imperative for
proper and effective adjudication of the case?
(2) Whether the application for amendment is bona
fide or mala fide?
(3) The amendment should not cause such prejudice to
the other side which cannot be compensated adequately
in terms of money;
(4) Refusing amendment would in fact lead to injustice
or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally
and fundamentally changes the nature and character of
the case? and
(6) As a general rule, the court should decline
amendments if a fresh suit on the amended claims would
be barred by limitation on the date of application.
68. These are some of the important factors which may be
kept in mind while dealing with application filed under Order
VI Rule 17. These are only illustrative and not exhaustive.
69. The decision on an application made under Order VI
Rule 17 is a very serious judicial exercise and the said exercise
should never be undertaken in a casual manner."
7. As noted above, the last Model Release Form is dated 18 th February,
2014. Even in the proposed amendments plaintiff does not deny her
signatures on the Model Release Forms, however only claims that she had
no knowledge thereof. There is no averment that the signatures or the other
portions of the handwriting of the plaintiff are forged and fabricated. The
present suit has been instituted by the plaintiff on 27 th February, 2017. The
amendment thus sought primarily seeking decree of a declaration declaring
the 9 Model Release Forms, the last being 18th February, 2014, is beyond the
period of limitation. Therefore without going into the question whether the
proposed amendments are bona-fide or not, since the same are beyond the
period of limitation, the amendments to the plaint cannot be allowed.
8. Application is dismissed.
Crl.M.A. 9274/2017 (u/S. 340 Cr.P.C. by D-1)
1. Learned counsel for the defendant No.1 seeks an adjournment to seek
instructions.
2. At request adjourned to 22nd March, 2018.
CS(COMM) 205/2017 & IA 3423/2017 (u/O XXXIX R 1&2 CPC)
1. List before the learned Joint Registrar for completion of pleadings and
admission denial of documents on 25th October, 2017.
2. List before Court on 22nd March, 2018.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 22, 2017
'ga'
