Delhi High Court
The Indian Performing Right ... vs Aditya Pandey And Anr on 5 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th April, 2018
+ CS(OS) No.1185/2006 & IA No.11203/2016 (of the plaintiff
under Order VII Rule 10 of the CPC).
THE INDIAN PERFORMING RIGHT
SOCIETY LTD. ..... Plaintiff
Through: Mr. Dayan Krishnan, Sr. Adv.
with Mr. Himanshu Bagai, Adv.
versus
ADITYA PANDEY AND ANR. ..... Defendants
Through: Mr. Abhishek Malhotra and Mr.
Angad S. Dugal, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
The plaintiff Indian Performing Right Society Ltd. instituted this
suit, as per amended plaint dated 3rd April, 2009, for permanent
injunction restraining the defendants Synergy Media Entertainment Ltd.
and its Senior Manager (Finance) Aditya Pandey, both located at Bhopal
and Jaipur, from broadcasting / performing or communicating to the
public literary and / or musical works of the plaintiff Society or those of
the foreign sister societies of the plaintiff Society and for recovery of
damages.
2. The suit came up first before this Court on 29th May, 2006 and was
re-notified from time to time; finally on 12th June, 2006, summons of the
suit were ordered to be issued though no ex parte ad interim relief
sought, granted. Vide order dated 12th March, 2009, amendment of the
plaint to add the plea that the defendants, since the institution of the suit
had commenced the activities of broadcasting from seventeen stations,
was allowed and amended plaint aforesaid taken on record.
3. Vide judgment dated 28th July, 2011, the applications of the
plaintiff for temporary injunction were disposed of by holding that the
defendants do not have to secure a licence from the plaintiff.
4. Vide order dated 9th January, 2012, M/s. D.B. Corporation Ltd.
which was stated to have taken over the business including the assets and
liabilities of Synergy Media Entertainment Ltd. pursuant to sanction of a
scheme of arrangement by the High Court of Madhya Pradesh at
Jabalpur, was substituted in place of Synergy Media Entertainment Ltd.
5. The plaintiff preferred FAO(OS) No.423-24/2011 against the
judgment dated 28th July, 2011 supra and which appeal was dismissed
vide judgment dated 8th May, 2012.
6. The matter was carried to the Supreme Court by Civil Appeals
No.9412-9413/2014 titled International Confederation of Societies of
Authors and Composers Vs. Aditya Pandey & Ors. which has vide
judgment dated 20th September, 2016 dismissed the same. Justice Gogoi
in his concurring opinion has however taken notice of no progress having
been made in this suit inspite of ten years having elapsed and of the order
dated 24th August, 2016 in the suit, of the plaintiff having not filed
affidavits by way of examination-in-chief also and of closure of evidence
of the plaintiff.
7. The plaintiff has filed IA No.11203/2016, which came up before
this Court on 29th September, 2016, when the following order was
passed:-
"IA No.11203/2016 (of the plaintiff under Order VII
Rule 10 of the CPC).
1. The plaintiff seeks return of the plaint for institution
in the Court of appropriate jurisdiction.
2. The counsel for the plaintiff has argued that as per
the judgment of the Supreme Court in Indian Performing
Rights Society Ltd. Vs. Sanjay Dalia (2015) 10 SCC 161
the plaintiff has realised that this Court does not have
territorial jurisdiction and hence this application.
3. The counsel for the defendants opposes the
application.
4. I find that in the issues framed in this suit on 28 th
July, 2009, issue no.1 pertains to the territorial
jurisdiction of this Court.
5. I have enquired from the counsel for the defendants
that the defendants having objected to the territorial
jurisdiction of this Court and having got issue framed
thereon, cannot oppose the application inasmuch as even
if this suit were to be decided on merits, in the event of
the plaintiff losing on the issue of territorial jurisdiction
the consequence would be of dismissal of the suit and the
plaintiff would have liberty to institute the suit in the
Court of appropriate territorial jurisdiction.
6. The counsel for the defendants then contends that
the suit claim even otherwise is not maintainable.
7. I have however enquired from the counsel for the
defendants whether the defendants are willing to give up
the issue as to the territorial jurisdiction.
8. The counsel for the defendants states that he will
give up the issue on territorial jurisdiction and since the
plaintiff has failed to lead any evidence and the evidence
of the plaintiff has been closed, the suit be dismissed as
the plaintiff has failed to prove the issues.
9. The counsel for the plaintiff contends that as per
Sanjay Dalia supra this Court does not have territorial
jurisdiction and notwithstanding the defendants giving up
the issue as to territorial jurisdiction this Court cannot
dismiss the suit on merits.
10. As per my understanding, unless there is an inherent
lack of territorial jurisdiction in this Court, in the
absence of any objection as to the territorial jurisdiction,
this Court would not lack power to dismiss the suit on
merits. Reference in this regard can be made to Section
21 of the Code of Civil Procedure, 1908 (CPC). It cannot
also be lost sight of that the plaintiff has pursued this suit
in this Court for the last over ten years notwithstanding
the said objection of the defendants.
11. The counsel for the plaintiff then states that he is not
prepared to argue on the said aspect.
12. List on 30th September, 2016.
13. No further adjournment shall be granted."
8. The counsels were heard on 30th September, 2016 and order
reserved.
9. The plaintiff has invoked the territorial jurisdiction of this Court
by pleading as under:-
"JURISDICTION:
27. This Hon'ble Court has territorial jurisdiction to
entertain and try the present suit under Section 62(2) of
the Copyright Act, 1957 as the Plaintiff carries on
business within the jurisdiction of this Hon'ble Court
through its branch office situated at B-317, Som Dutt
Chamber-I, Bhikaji Cama Place, New Delhi."
10. The defendants in their written statement, in response to the
aforesaid paragraph have pleaded as under:-
"31. With reference to the contents of paragraph
27 of the plaint, it is stated that in light of the decision of
the Hon'ble Supreme Court of India in Dodha House Vs.
S.K. Maingi 2006 (32) PTC 1, the Plaintiff has to
demonstrate that is carried on business within the
territorial jurisdiction of this Hon'ble Court. It is not
enough to state that the Plaintiff has a branch office in
Delhi. It is accordingly denied that this Hon'ble Court
has the territorial jurisdiction to entertain the present
matter."
11. The plaintiff, in replication thereto pleaded as under:-
"29. The contents of paragraph 31 of the written
statement are denied and the contents of paragraph 27 of
the plaint are reiterated. It is stated that this Hon'ble
court has the territorial jurisdiction to entertain and try
the present suit as the Plaintiff carries on business within
the territorial limits of this Hon'ble Court as it maintains
a fully functioning branch office within Delhi."
12. The following issues were framed in the suit on 28th July, 2009:-
"1. Does this Court has jurisdiction to entertain and try the
present suit? OPP.
2. Is the suit bad for non-joinder of parties? OPD.
3. Does the plaintiff prove its entitlement to any of the reliefs
claimed? OPP.
4. Does the plaintiff prove the defendants are infringing any
copyright which it is authorized to administer or enforce
under Section 34 of the Copyrights Act, as claimed? OPP.
5. Is the plaintiff entitled to damages; if so, for what amount?
6. Relief."
13. It is the case of the plaintiff in IA No.11203/2016 aforesaid that in
the light of dicta in Sanjay Dalia supra, which is of a date subsequent to
the date of institution of the suit, this Court lacks the territorial
jurisdiction to try and adjudicate the suit as the suit was filed on the basis
of the plaintiff having a branch office at Delhi and it has been held in
Sanjay Dalia supra that having a branch office alone is not sufficient for
creating jurisdiction under Section 62(2) of the Copyright Act. It is
further pleaded that the plaintiff has its principal office in Mumbai,
Maharashtra and the plaint be returned to be presented before the High
Court of Bombay, Maharashtra.
14. The Division Bench of this Court in Ultra Home Construction
Pvt. Ltd. Vs. Purushottam Kumar Chaubey 227 (2016) DLT 320 (DB)
has illustrated four contingencies which may arise through the following
table:-
S. Place of Plaintiff's Place of Plaintiff's Place where Place where
No. Principal Office (Sole Subordinate/Branch cause of action Plaintiff can
office in S.No.1) Office arose additionally sue
under Section
134(2) and
Section 62(2)
1. A --- C A
2. A B A A
3. A B B B
4. A B C A
15. This suit was instituted merely on the plea of the plaintiff carrying
on business within the jurisdiction of this Court through its branch office.
The defendants in their written statement denied that the plaintiff was
carrying on any business at Delhi. The plaintiff in replication merely
reiterated that it carried on business at Delhi as it maintains a branch
office therein. Else it is not in dispute that the registered office of the
plaintiff is at Mumbai. The further plea in the plaint was of the
defendants having acquired radio broadcasting licences in the cities of
Jaipur, Ahmedabad, Nagpur, Surat, Gwalior, Raipur, Bhopal, Indore,
Jabalpur, Bilaspur, Jallandhar, Jodhpur, Kota, Udaipur, Amritsar, Ajmer
and Chandigarh. No mention was made of any broadcasting licence
having been granted to the defendants at Delhi. It is thus clear that it was
not the case of the plaintiff that any cause of action had accrued to the
plaintiff against the defendants at Delhi. It was the contention of the
senior counsel for the plaintiff that the facts of the present case thus fall
in the fourth situation envisaged in Ultra Home Construction Pvt. Ltd.
supra and the plaintiff, invoking Section 62(2) of the Copyright Act,
1957, can institute the suit only at the place of its registered office and
not at the place of its branch office. It was thus contended that the issue
framed on the plea of the plaintiff carrying on business at Delhi is
immaterial.
16. Per contra, the counsel for the defendants contended that it has
already been held in the judgment dated 20th September, 2016 of the
Supreme Court that the plaintiff has no right for enforcement of which
this suit has been filed.
17. Supreme Court, in Harshad Chiman Lal Modi Vs. DLF
Universal Ltd. (2005) 7 SCC 791, held a) that the jurisdiction of a court
may be classified into several categories, with the important categories
being (i) territorial jurisdiction; (ii) pecuniary jurisdiction; and (iii)
jurisdiction over the subject matter; b) so far as territorial and pecuniary
jurisdictions are concerned, objection to such jurisdiction has to be taken
at the earliest possible opportunity and in any case at or before settlement
of issues; c) the law is well settled that if such objection is not taken at
the earliest, it cannot be allowed to be taken at a subsequent stage; d)
jurisdiction as to subject matter however is totally distinct and stands on
a different footing; and, e) where a court has no jurisdiction over the
subject matter of the suit by reason of any limitation imposed by statute,
charter or commission, it cannot take up the cause or matter and an order
passed by a Court having no jurisdiction is a nullity. Applying the said
principles, it was held that a suit for specific performance of an
Agreement of a Sale of immovable property can be instituted only at the
place where the property is situated and in no other Court. Thus,
institution of such a suit in a Court other than of the place where the
immoveable property was situated was held to be bad, notwithstanding
the consent of the defendant thereto, since the Court of a place other than
where the property was situated was held to lack subject jurisdiction with
respect thereto.
18. There is no such lack of subject jurisdiction in this Court in the
present case. Thus it is open to the defendants to waive the plea earlier
taken objecting to the territorial jurisdiction of this Court and on which
an issue was also framed. Once the defendants have given up the plea
objecting to territorial jurisdiction, there is no impediment to this Court
proceeding with the suit.
19. There is another aspect of the matter. It is a well settled principle
of law and public policy and essential part of Rule of Law that a person
shall not be vexed twice for the same relief. The plaintiff, by instituting
the suit in this Court has vexed the defendants in this Court and in the
appeals arising from the suit, for the last twelve years, and for this reason
also I am unable to find any equity in favour of the plaintiff for allowing
the plaintiff to seek return of the plaint for filing the same in the High
Court of Bombay. Rather, allowing the plaintiff to do so will tantamount
to this Court allowing its machinery to be used improperly and
permitting the process of law to be abused.
20. Though the application for return of the plaint was filed shortly
before the date when the evidence of the plaintiff was closed and came
up first before this Court after the evidence so stood closed but it cannot
be lost sight of that the said application was filed beyond the time which
was granted to the plaintiff on 24th May, 2016, of one week, for filing the
affidavit of examination-in-chief. On 24th May, 2016, last opportunity
was granted to the plaintiff to so file the affidavit subject to payment of
costs. No such affidavit was filed and the application under Order VII
Rule 10 of the Code of Civil Procedure, 1908 (CPC) is dated 8th August,
2016 and was filed on 22nd August, 2016. It is thus clear that the
application itself was an attempt to get over the order of closure of
evidence which was bound to follow on 24th August, 2016.
21. I am therefore of the opinion that the plaintiff should now not have
a second round of litigation against the defendants before the High Court
of Bombay and should be bound by the present lis.
22. Resultantly, IA No.11203/2016 is dismissed.
23. The plaintiff having led no evidence and the evidence of the
plaintiff having already been closed and which order also has attained
finality and the onus of the main issues being on the plaintiff, the suit has
necessarily to be dismissed and is dismissed. The defendants shall be
entitled to costs of Rs.2,00,000/- from the plaintiff.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
APRIL 05, 2018
'pp'
