R.S Aggarwal & Ors. vs P.K. Aggarwal & Ors.
2018 Latest Caselaw 4378 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Reserved on : 17th July, 2018
                              Date of decision :30th July, 2018
+                    CS (COMM) 331/2018 & I.A. 7953/2018
       R.S AGGARWAL & ORS.                                ..... Plaintiffs
                    Through:           Mr. Pravin Anand, Ms. Geetanjali
                                       Visvanathan and Ms. Asavari Jain,
                                       Advocates. (M:9765097954)
                    versus
       P.K. AGGARWAL & ORS.                              ..... Defendants
                    Through:           Mr. Abhik Kumar and Mr. Rinku
                                       Mathur,    Advocates       for   D-1.
                                       (M:9953971709)
                                       Mr. Ankit Jain, Advocate for D-2.
                                       (M:9810737362)
                                       Mr. Sanjeev Sindhwani, Senior
                                       Advocate with Mr. Mohit Gupta, Ms.
                                       Alka Chojar and Ms. Meenakshi
                                       Garg, Advs for D-3. (M:9811669899)
     CORAM:
      JUSTICE PRATHIBA M. SINGH
                      JUDGMENT

Prathiba M. Singh, J.

I.A. 5758/2018 (u/O VII Rule 11 CPC)

1. Plaintiff No.1 Mr. R. S. Aggarwal (hereinafter, „author‟), is an author of mathematics books prescribed for students in schools and colleges, and has authored over 100 academic books. He has also co-authored some books with Plaintiff Nos.2 & 3, who are his brothers and which are prescribed at various levels for the students from pre-primary and post graduate levels.

2. The Defendant No.3, S. Chand Company (hereinafter, „publisher‟), a publishing house has published various books of the Plaintiffs. There were several agreements entered into between the Plaintiffs and the Defendant

No.3 dated 5th January, 1991, 2nd April, 1997, 28th October, 1992 and 28th October, 1997. These agreements are publishing agreements wherein the Defendant No.3 has the right to publish the books as also their translations and adaptations. The authors were to be paid royalty at the rate of 10% of the published prices for all copies of their books sold and value realised. Statement of accounts has to be given annually to the author by May of every year and payment was to be made by September. The publisher had the first option to publish any book of the author in future. If the publisher wished to publish/edit/revise any of the books, the author had to agree to edit and revise the same. If the author refused to do so, then the publisher had the option of engaging a third party for the said purpose but the charges would be deducted from the royalty payable. In case of a translation, the author could supply the translated manuscript and the publisher could publish the same. Only if the author was unable to translate, the publisher could get it done from a third party and deduct the said charges from the royalties payable.

3. The suit was filed on the premise that some of the academic books, which were published by the publisher, were a verbatim reproduction of the books of the Plaintiffs, and were not authored by them. The same was brought to the notice of the publisher immediately, who undertook not to publish further editions of the infringing books. On another occasion, a book authored by a 3rd party was attributed and promoted as a book authored by Plaintiff No.1. The infringing books were authored by Defendant No.1 Mr. P. K. Aggarwal and Defendant No.2 Mr. Bhagwat Swaroop Sharma. The Plaintiffs also came across unauthorised translations of their books. According to the Plaintiffs, the royalty statements were not being properly

provided and the accounts were being misrepresented. Under these circumstances, the Plaintiffs filed the present suit for infringement of copyright seeking the following reliefs:

"a) An order of permanent injunction restraining Defendant Nos.1 and 2, their partners as the case may be, their officers, servants and agents, affiliated entities, and all others acting for and on their behalf from reproducing, substantially or otherwise, the contents of any of the suit books including Quantitative Aptitude and the Reasoning books, in any manner amounting to infringement of copyright and violation of moral rights vested with the Plaintiffs;

b) An order for permanent injunction restraining Defendant No. 3, its partners or proprietors, as the case may be, its officers, servants and agents from publishing, distributing, offering for sale, advertising, directly or indirectly dealing any business whatsoever using the name Dr. R. S. Aggarwal in relation to any books other than the suit books amounting to invasion of Plaintiff No.1's right to publicity/privacy etc.

c) An order of permanent injunction restraining Defendant No. 3 from misrepresenting Defendant No.1's book titled 'A Handbook of Test of Reasoning and Quantitative Aptitude' and/ or the book titled 'Advanced Approach to Non-Verbal and Logical Reasoning' and/or any other book as if it has been authored by the Plaintiffs amounting to passing off.

d) An order for specific performance requiring Defendant No.3 to perform its obligations as defined in the Agreements and, accordingly, requiring Defendant No.3 to refrain from translating/publishing special editions of any of the suit books without informing the Plaintiffs, provide the Plaintiffs with 5 copies of all publications in relation to the suit books and to pay the Plaintiffs the

full royalty for all the copies of the suit book sold till date;

e) An order for delivery-up of all the infringing books of Defendant Nos. 1 and 2 including the books themselves, covers, manuscripts or any other material which is a reproduction, either substantial or otherwise, of any of the suit books;

f) An order for rendition of accounts of profits illegally earned by the Defendants and a decree for the payment of the ascertained amount be passed in favour of the Plaintiff;

f) A decree for damages of Rs.2,00,01,000 be passed in favour of the Plaintiffs and against the Defendants;

g) An order for the costs of these proceedings;"

4. On 23rd May, 2014 an ad interim ex-parte order was passed in favour of the Plaintiffs. The said order is continuing till date. Over the course of this litigation, on various dates, royalties due to the Plaintiffs have been handed over by way of cheques by the publisher for Rs.5.15 crores and Rs.5.39 crores. On 6th March, 2017, issues were framed in the matter and the trial has also commenced. A Local Commissioner has been appointed to record the evidence.

5. While the trial was continuing before the Local Commissioner, the present application under Order VII Rule 11 CPC has come to be filed on the ground that one of the prayers in the suit is for specific performance i.e. prayer (d). According to the learned counsel for the publisher, the relief of specific performance is not liable to be granted, as the Plaintiffs have failed to aver in the plaint that they are ready and willing to perform the contract. In the absence of such an averment, the suit for specific performance is not maintainable. Learned Senior Advocate appearing for the Defendants relies

upon the following judgments:

 Prem Raj v. DLF Housing & Construction Pvt. Ltd. and Anr. AIR 1968 SC 1355 (hereinafter, „Prem Raj‟);  Ouseph Varghese v. Joseph Aley and Ors. (1969) 2 SCC 539 (hereinafter, „Ouseph Varghese‟);  Ram Awadh v. Achhaibar Dubey AIR 2000 SC 860 (hereinafter, „Ram Awadh‟);

 Padmakumari & Ors. v. Dasayyan & Ors. (2015) 8 SCC 685 (hereinafter, „Padmakumari‟);

 J. Samuel & Ors. v. Gattu Mahesh (2012) 2 SCC 300 (hereinafter, „J. Samuel‟);

 Dr. Zubair Ul Abidin & Ors. v. Sameena Abidin @Sameena Khan (2014) 214 DLT 340 (hereinafter, „Dr. Zubair Ul Abidin‟).

6. On the other hand, learned counsel for the Plaintiffs submits that the relief of specific performance is liable to be granted in favour of the Plaintiffs as the Plaintiffs have performed their part of the contract and have submitted all the manuscripts to the publisher. Learned counsel for the Plaintiffs relies on Trimbak Shankar Tidke v. Nivratti Shankar Tidke AIR 1985 Bom 128 and Motilal Jain v. Ramdasi Devi (2000) 6 SCC 420 (hereinafter, „Motilal Jain‟).

7. A perusal of the plaint shows that it is one for infringement of copyright and moral rights, and is a suit where the Plaintiffs are seeking that the Defendants abide by all the terms of the contract between the parties. Various instances of breach and violation by the publisher have been enumerated in the plaint. In respect of some of the breaches, the publisher

has already agreed to abide by the clauses in the agreement. For example, the publisher has agreed not to publish the infringing books mentioned in the agreement. It is also agreed, as recorded in the order dated 4th July, 2018, that it would continue to abide by the terms of the agreement. In respect of wrong attribution of a book written by a 3rd party, in the Plaintiffs' list of books, on the last occasion, the publisher submitted that it was an inadvertent error and in fact, apologised to the Plaintiffs. Extract of the order dated 4th July, 2018 reads as under:

"I.A. 16967/2014 (u/O XXXIX Rule 2A CPC) The present application has been filed by the Plaintiffs on the premise that the Defendant No.3 is violating the interim order dated 23rd May, 2014. The said order has been made absolute today. The allegation in this application is that the Defendant No.3 sold two of the infringing books through its website www.schandpublishing.com in violation of the order. Learned Senior Counsel for Defendant No.3 submits that these two sales have been made due to an inadvertent error made by one of its employees at the branch office. Defendant No.3 did not have any intention of violating the orders and the said stand has been affirmed on record vide affidavit dated 2nd November, 2016 by the General Manager (Sales). Taking the aforesaid statement on record, the application is disposed of. Defendant No.3 shall be bound by the order and the contents of the affidavit filed by its General Manager (Sales). Application is disposed of.

I.A. 6496/2018 (u/O XXXIX Rule 2A CPC) This is an application under Order XXXIX Rule 2A CPC filed by the Plaintiffs on the allegation that the book written by another author namely Shri Ashish Aggarwal has been shown as a book by the Plaintiff, in the Defendant No.3‟s catalogue. Learned Senior Counsel for Defendant No.3 submits that upon

receiving the advance copy of this application, the Defendant No.3 has carried out the necessary correction in the new catalogue published by his client. The same, according to the Defendant No.3, was again an inadvertent error. The Defendant No.3 has apologized to the Plaintiff for having been wrongly given the name of another author‟s book in the Plaintiffs‟ range of books. Counsel for the Plaintiff submits that the Plaintiff accepts the apology given by the Defendant No. 3."

In view of the various instances of violation of the agreement, the Plaintiffs have sought specific performance.

8. It is not in doubt that the Plaintiffs have submitted the manuscripts to the publisher in respect of all the books as per the various agreements. The books are being continuously published by the publisher. It is not a case where the publisher has requested the Plaintiffs for any translation and the Plaintiffs have refused to comply. It is not even the case of the publisher that at any point, it called upon the Plaintiffs to perform their part of the agreement, which is a continuous obligation, and the Plaintiffs have refused to do so. In fact, the manuscripts as per the agreements, having already been submitted and the royalties being paid by the publisher is evidence of the fact that the Plaintiffs are merely seeking a continuous adherence and performance of the agreements.

9. The agreements, in the present case, are distinct from an agreement to sell in relation to an immovable property of which specific performance is sought, where the Plaintiffs approaching the Court so have to exhibit their readiness and willingness. It is not to say that in agreements for publication, the author need not exhibit readiness and willingness, but the requirements in the case of publishing arrangement would be different from that in case of

an immovable property i.e., the author has to show that the manuscripts have been submitted for publication and no other obligation remains to be performed.

10. In the present publishing agreements, the authors are supposed to deliver the manuscripts and the publisher accepts to publish and pay royalties. If the publisher wishes to publish a revised edition, translation or adaption, the publisher can call upon the author to perform his part of the contract. If the author refuses to do so, the publisher can engage a 3rd party for doing the same.

11. However, from the author's side, after submission of the initial manuscripts, the continued obligation by the publisher is for payment of royalties and to call upon the author in case of revisions/translations, which may be required. Once the manuscripts are submitted, in effect, there is nothing much that the authors are required to do. Of course the authors are bound by the terms of the agreement. It is not the case of the publisher that the authors have violated the terms of the agreements.

12. Readiness and willingness is to be construed in the context of the agreements being dealt with and not in a straight jacketed or a blinkered manner. Readiness and willingness is not a mere mantra to be repeated in the plaint but is an analysis of the conduct of the parties to see if they have complied with the letter and spirit of the agreements.

13. So long as the Plaintiffs are abiding by their obligations under the agreements, it cannot be presumed that there is lack of readiness and willingness. The mere non-mentioning of these two words cannot lead to an inference of the absence of the same. The Court has to see, not the repetition of these two words in a particular case, but the existence of readiness and

willingness by conduct.

14. The Plaintiffs being authors have, repeatedly pointed out various violations by the Defendants. Paragraph 38 of the plaint captures the said violations as under:

".............................

38. As regards Defendant No. 3, its numerous acts of transgression on the Plaintiffs' rights are summarized as under:

(i) Breach of the undertaking tendered in the letter dated August 19, 2004 not to bring out any further edition of the infringing book titled "A handbook of Test of Reasoning and Quantitative Aptitude' written by Defendant No. 2 thereby amounting to breach of trust.

(ii) Invasion of the right to publicity / privacy rights of Plaintiff No.1 as well as passing off Defendant No.2's book titled 'A Handbook of Test of Reasoning and Quantitative Aptitude' as that of Plaintiff No. 1.

(iii) Invasion of the right to publicity / privacy rights of Plaintiff No. 1 as well as passing off the book titled 'Advanced Approach to Non-Verbal Reasoning and Logical Reasoning' as that of Plaintiff No. 1.

(iv) Violation of clause 15(a) of the Quantitative Aptitude Agreement by denying the Plaintiffs the first opportunity to have the book Quantitative Aptitude translated into Oriya thereby amounting to breach of contract.

(v) Violation of clause 14(a) of the Reasoning Agreement by denying the Plaintiffs the first

opportunity to have the book 'A Modem Approach to Verbal and Non-verbal Reasoning' translated into Oriya thereby amounting to breach of contract.

(vi) Violation of clause 7(f) of the Quantitative Aptitude Agreement by failing to provide the Plaintiffs with 5 copies of 'Quantitative Aptitude (Orissa)' thereby amounting to breach of contract.

(vii) Violation of clause 7(d) of the Reasoning Agreement by failing to provide the Plaintiffs with 5 copies of 'A Modem Approach to Verbal and Non-Verbal Reasoning (Orissa)' thereby amounting to breach of contract.

(viii) Providing incorrect/ diminished sales figures and actual specimen deductions in the royalty statements and thereby failing to provide the Plaintiffs with royalty for all copies sold amounting to violation of clause 6(a) of the respective agreements thereby amounting to breach of contract."

15. A perusal of points (iv) & (v) above shows that the Plaintiffs were denied the first opportunity of translating one of the books into Oriya language, which was an obligation under clause 14(a) of the agreement. Similarly, in response to this paragraph, the publisher has not stated in its written statement that it had, at any point, called upon to the Plaintiffs as per the agreement to submit an Oriya translation. In fact, in paras (iv) and (v) in the written statement, apart from denying the allegations, the publisher argues that the Plaintiffs were duly informed of the publication in Oriya language. The publisher does not claim that the Plaintiffs were called upon to give the translation.

16. Thus, the plaint cannot be rejected in respect of the relief of specific performance. The conduct of the Plaintiffs does not show that they were unwilling to perform their part of the contract. In fact, whatever was required by them, has already been submitted to the publisher, and there is nothing on record to show the opposite.

17. It is well settled that the readiness and willingness is to be determined and construed in spirit and not by the mere presence of the words. The Supreme Court in Motilal Jain (supra) held as under:

"8......................This Court observed that readiness and willingness could not be treated as a straitjacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. It was held that in the absence of any material to show that „A‟ at any stage was not ready and willing to perform his part of the contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained, „A‟ was entitled to a decree for specific performance of contract.

9........................ It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other, thus, to gather the true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea............... It is thus, clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligation under the contract which is the subject-matter of the suit, the fact that

they are a differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale."

18. Authorities relied upon by the publisher are factually distinguishable. In Prem Raj (supra) it was held that a Plaintiff cannot pray for declaration that the agreement is null and void and in the same breath pray for specific performance. It is not so in the present case.

19. In Padmakumari (supra) the Supreme Court held that readiness and willingness has to be in conformity with Order VI Rule 3 of the CPC. In the said case, the Supreme Court held that since the Plaintiff had not paid the balance sale consideration within the time prescribed, the Plaintiff is not entitled to specific performance. It was held that the averments made in the said case by the Plaintiff fell short of the requirement of Section 16(c) of the Specific Relief Act, 1963.

20. All these cases relate to fact situations where a material part of the contract was yet to be performed by the Plaintiff i.e. payment of balance sale consideration. In the present case, however, there is no such obligation by the Plaintiffs, which is outstanding from their side. Readiness and willingness is required to be established when a part of the contract is yet to be performed. Section 16(c) cannot be blindly applied in a case where the Plaintiffs have complied with their part of the contract and any continued obligation has not been resiled from by them. The judgments cited by the Defendants are all thus, distinguishable on facts.

21. Learned counsel for the publisher, also submits that the plaint can be partially rejected in respect of the specific performance. Section 16(c) of the Specific Relief Act is clear in its wording i.e., the specific performance

cannot be granted in favour of a person "who fails to aver and prove that he has performed or has always been ready and willing to perform".

22. A perusal of this provision shows that when it concerns parties, who have already performed their part of the contract, and there is no allegation that they have failed to perform their continued obligation, their performance by itself constitutes their adherence to the contract. The averment that the Plaintiff has already performed his/her part of the contract, is to be seen from a reading of the Plaint and not on the basis of the presence or absence of the two words. To hold otherwise would mean that the words `Readiness' and `Willingness' have to be considered as mere words and not terms of the substance.

23. In view of the above discussion, the application under Order VII Rule 11 CPC is not maintainable. Considering the fact that this application is moved at the stage when the evidence in the matter has commenced, and clearly it is the publisher, at least until this stage, who has been shown to have committed violations of the terms of the agreement, the application is liable to be dismissed with cost of Rs.50,000/-. Needless to add that any observation in this order would not have a bearing on the merits of the suit which is to be decided after evidence is concluded.

24. The I.A., accordingly, stands dismissed.

PRATHIBA M. SINGH JUDGE JULY 30, 2018/dk