Delhi High Court
T. V. Today Network Limited vs News Laundry Media Private ... on 29 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 29th July, 2022
+ CS(COMM) 551/2021, I.As.14238/2021, 14296/2021,
14964/2021, 37/2022, 1055/2022 & 4827/2022
T.V. TODAY NETWORK LIMITED ..... Plaintiff
Through: Mr. Hrishikesh Baruah, Mr. Pranav
Jain, Ms. Radhika Gupta,
Ms.Sowmya Shikhar and Mr.
Kumar Kshitij, Advocates
Versus
NEWS LAUNDRY MEDIA PRIVATE LIMITED & ORS.
..... Defendants
Through: Mr. Saurabh Kirpal, Senior
Advocate with Mr. Nipun Katyal,
Ms. Tahima Gaur and Mr. Nikhil
Arora, Advocates for D-1 to D-9
Ms. Mamta Jha, Mr. Rohan Ahuja,
Ms.Shruttima Ehersa, Ms. Riya
Gupta and Mr. Vatsalya Vishal,
Advocates for D-10/Google LLC
Mr. Deepak Gogia and Mr. Aadhar
Nautiyal, Advocates for D-12/
Twitter Inc.
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
I.A.14238/2021 (by the plaintiff u/S 151 CPC for filing additional
documents)
1. The application has been moved by the plaintiff along with the suit
seeking leave to file additional documents within 30 days, as the suit had
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been filed for urgent relief.
2. In the interest of justice, the application is allowed.
3. The application stands disposed of.
I.A.14296/2021 (by the plaintiff u/S 12A of the Commercial Courts
Act, 2015 seeking exemption from pre-institution mediation)
4. The application has been moved by the plaintiff along with the suit
seeking exemption from exhausting the remedy of pre-institution
mediation.
5. Mr. Saurabh Kirpal, learned senior counsel for the defendants No.1
to 9, had raised an objection that the suit is not a „commercial suit‟. If that
be so, the application would be unnecessary. However, since the suit has
been filed as a „commercial suit‟ and in view of the fact that the urgent
reliefs of injunction against infringement of copyright has been sought,
the application is allowed and the plaintiff is exempted from exhausting
the remedy of the pre-institution mediation.
6. The application stands disposed of.
I.A.14964/2021 (by the plaintiff u/O VII Rule 10 CPC to file
additional documents) and I.A.37/2022 (by the plaintiff u/O VII Rule
14 read with Section 151 CPC seeking permission to file additional
documents)
7. These applications have been filed by the plaintiff seeking
permission to place on the record, the transcripts of the videos, in respect
of which, the plaintiff has sought relief, which are allegedly containing
infringing material and defamatory/derogatory material against the
plaintiff.
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8. The objection raised by the learned senior counsel for the
defendants No.1 to 9 was that neither provision was applicable. However,
since the videos have been produced before the court, the transcripts
would only assist the court, for which reason the plaintiff is allowed to
place the same on the record. Accordingly, these transcripts are taken as
part of the record, subject to any objection that the defendants may raise
in respect of the correctness of the transcripts during trial, as such a
comparison is not possible at this stage.
9. The application stands disposed of in aforesaid terms.
I.A.1055/2022 (by the plaintiff u/O XI Rule 1 CPC as amended by the
Commercial Courts Act, 2015 seeking leave to file additional
documents)
10. The application has been moved by the plaintiff under Order XI
Rule 1 of the Code of Civil Procedure, 1908 (for short, "CPC") as
amended by the Commercial Courts Act, 2015 seeking permission to
place on record additional documents, namely, screenshots of the
tweets/posts appearing on the websites of the defendant No.11 i.e.,
www.facebook.com and www.instagram.com and the website of the
defendant No.12 i.e., www.twitter.com, as listed in the plaint, allegedly
containing defamatory/infringing content.
11. Since these are only screenshots of details already listed in the
plaint, in the interest of justice, as it would only assist the court in
appreciating the contents as to whether they contain
infringing/defamatory material, the application is allowed and these
screenshots mentioned in para No. 9 of the present application are taken
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on record.
12. The application stands disposed of.
I.A. 14237/2021 (by the plaintiff u/O XXXIX R-l & 2 CPC for interim
injunction)
13. The application [I.A.14237/2021] has been moved by the plaintiff
under Order XXXIX Rules 1 & 2 CPC filed by the plaintiff along with
the suit for mandatory and permanent injunction as also for damages.
BRIEF FACTS
14. The plaintiff is a Company incorporated under the Companies Act,
1956 having its registered office at F-26, First Floor, Connaught Circus,
New Delhi-110001 and operates prominent television channels, namely,
„AajTak‟, „AajTak HD‟, „India Today Television‟ and „Good News TV‟
and is part of the prestigious „INDIA TODAY GROUP‟. Its business
interests are in broadcasting, publishing, e-commerce, etc., through its
constituent companies, like Living Media India Limited. The India Today
Group claims to have created an enviable legacy of trust and leadership
since it was established in 1975.
15. The plaintiff also claims to have created and maintained highly
credible and accurate, active and updated profiles, accounts and handles
on social-media and content-sharing platforms, such as, Facebook,
Twitter, YouTube and Instagram. It is claimed that there are 14.7 million
followers on plaintiff‟s Twitter handle „@aajtak‟ and about 5.8 million
followers on the Twitter handle „@indiatoday‟. The YouTube channel
under the name „AajTak‟ created in August, 2009 has close to 47.9
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million subscribers and over 15,834,300,322 views as on date. The
YouTube channel under the name „India Today‟ has around 5.09 million
subscribers and has over 1,207,603,938 views as on date. The YouTube
channel „AajTak HD‟ created in November, 2018 also has over 4.11
million subscribers and has over 1,346,500,992 views as on date.
Similarly, the plaintiff‟s primary profile pertaining to „AajTak‟ on
Facebook being „@aajtak‟ created in December, 2009 has over
25,513,703 likes and 30,828,524 followers as on date.
16. Thus, in short, according to the plaintiff, the plaintiff‟s channels
and allied services have become household names. They have been given
due recognition inasmuch as their channel „AajTak‟ has been voted the
best Hindi News channel continuously from 2001-2015 by Indian
Television Academy. Other awards such as, Exchange4media News
Broadcasting Award and other awards totaling 48, have been shared
between „India Today Television‟ and „AajTak‟. Two of these awards
have also been awarded to a digital platform „Lallan Top‟ and one award
each has gone to „News Tak‟ and „AajTak HD‟. Thus, the presence of
the plaintiff was not only in the „print‟, but also „electronic‟ as well as
„social-media‟.
17. It was submitted that the plaintiff has spent huge resources in terms
of time, human intellect and money, to promote its various brands and its
services, which only for advertisement, in the year 2015-16, totalled
Rs.45.26 crores and which rose to Rs.50.94 crores in 2019-20. The
revenue generated through services has risen from Rs.577.76 lakhs in
2015-16 to Rs.899.57 lakhs in 2019-20.
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18. It was further submitted that on 5th September, 2021, the plaintiff
company launched a new channel named „Good News Today‟ or „GNT‟,
which was a 24x7 Hindi News Channel to broadcast true stories that
foster goodwill and enrich the lives of the audiences. The channel
intended to focus sharply. on solutions and celebrate the narratives of the
glass half full, showcasing stories of hope, human triumph, innovation,
inspiration from different walks of life and different parts of India and the
world. A sum of Rs.30,23,483/- (approx.) had been spent towards
operating expenses of this news channel and Rs.28,94,774/- was spent
towards the Capital expenses. A sum of Rs.1,19,33,420/- was the revenue
generated from this channel, as it had been widely applauded and
accepted. The GNT was also available on social-media platforms through
GNT YouTube channel, GNT Facebook profile and GNT Twitter handle.
19. The plaintiff also submitted that the Management and the News
Anchors of the plaintiff company were people with recognition, and with
great talent, which has been acknowledged by the various awards that
Ms. Kalli Purie, the Vice-Chairman and Group Editorial Director
(Broadcast and News Media), Mr.Rahul Kanwal, News Director,
Mr.Gaurav C. Sawant (Senior Executive Editor, India Today Television),
Ms.Anjana Om Kashyap (Editor, Special Projects and Executive Editor,
AajTak) and Ms. Shweta Singh (Senior Executive Editor, Special
Programming) had all received over a period of time for their excellent
news coverage, reporting, creative programming, anchoring, etc..
20. It is in this background that the plaintiff has filed this suit
submitting that the defendants No.1 to 9 have, by their various
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programmes on their social-media platforms and through their Digital
News Platform, namely, "Newslaundry", from its website, having domain
name www.newslaundry.com, had tarnished its reputation. It was also
submitted that this tarnishing is accompanied with the infringement of the
copyrighted content of the plaintiff. According to the plaintiff, the
defendants have ridiculed and defamed the plaintiff company, its news
channels, its employees and Management, and have published various
videos and articles containing false, malicious, defamatory and
derogatory information on their website as well as on various social-
media platforms. The attempts through these videos and articles of the
defendants No.1 to 9 were to consistently denigrate, deprecate, ridicule
and derogate the news broadcast by the plaintiff‟s channels as well as the
anchors who hosted these news broadcasts. Thus, the false and
defamatory statements have lowered the reputation of the plaintiff in the
eyes of the right-thinking members of the society as also caused
defamation to the plaintiff, its news channels, its anchors, its employees
and its Management and have seriously caused prejudice to their
commercial reputation and goodwill.
21. In the reply filed by the defendants No.1 to 9 to the interim
application, the preliminary objection taken by them is that the suit filed
by the plaintiff is not maintainable as the same is not a "commercial suit".
It is also submitted that the plaintiff has not been able to demonstrate that
the videos posted/uploaded by the defendants No.1 to 9 are defamatory
and that the plaintiff has failed to disclose any case for grant of interim
protection and that if such protection is granted at this interim stage, the
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same will amount to decreeing the suit and awarding of the final relief
claimed in the plaint, which is not permissible in law. It is further
submitted that the issues, as raised in the plaint, are triable issues, which
can only be considered after evidence is led and cannot be adjudicated at
this stage. Furthermore, since the plaintiff has suppressed material facts
by editing and showing only that portion of the videos that helps its case,
the plaintiff cannot be granted any protection. It is also submitted that the
use of the plaintiff‟s content by them is covered under „Fair Use‟
inasmuch as they give due credit to the plaintiff and in no manner, try to
portray to its subscribers/viewers/customers that the video/copyrighted
material used of the plaintiff is of the defendants. It is stated that since
their business and work model is unique, their actions do not constitute
commercial disparagement, also because their content includes original
reportage, interviews and podcasts and in no way, amounts to the
infringement of the copyrighted work of the plaintiff. Additionally, it is
submitted that the plaintiff has made misrepresentation to this court and
therefore, cannot be entitled to any discretionary relief.
22. In reply filed to the interim application, the defendant
No.12/Twitter Inc. has submitted that since it qualifies as an
"intermediary" within the meaning of Section 2(1)(w) of the Information
Technology Act, it is exempted from any liability in relation to any third-
party information or data made available or hosted by it. It is submitted
that the dispute at hand is essentially between the plaintiff and the
entities/persons against and by whom the defamation/infringement is
alleged, and in the light of the judgment of the Supreme Court in Shreya
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Singhal v. Union of India AIR 2015 SC 1523, any relief of prospective
injunction vis-à-vis unidentified future content cannot be sought against
an intermediary.
23. No replies to the interim application have been filed on behalf of
the remaining defendants i.e., defendant No.10/Google LLC and
defendant No.11/Facebook Inc.
ARGUMENTS
24. Mr. Hrishikesh Baruah, learned counsel for the plaintiff, submitted
that the defendants No.1 to 9 had utilized the content created by the
plaintiff and broadcast on its various channels and reproduced the same in
their own programmes, namely, „TV Newsance‟, „Criticles‟, and „NL
Tippani‟, etc., and published various videos and articles, which they
broadcast on their social-media platforms, and if a chart was to be
prepared, it would show that 90% of the programme comprised of the
content taken from the plaintiff‟s news channels or similar other channels
and it was less than 10% that constituted the programming of the
defendants No.1 to 9. It was submitted that as observed in Hubbard v.
Vosper, [1972] 2 Q.B. 84 and accepted by a Co-ordinate Bench of this
court in Super Cassettes Industries Ltd. v. Hamar Television Network
Pvt. Ltd., 2010 SCC OnLine Del 2086, a reproduction of a small part of
the content may not amount to a copyrighted infringement, but the
reproduction of large portions of the plaintiff‟s content to create a
programme by the defendants No.1 to 9 on their platform, clearly was
impermissible.
25. The learned counsel for the plaintiff submitted that the transcripts
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of the videos in question also sufficiently reflected that the content of the
programmes of the defendants No.1 to 9 was formed majorly out of the
content produced by the plaintiff. It was submitted that the plaintiff had to
spend money and effort to create content and in order to protect such
creation, copyright protection was available to it. It was further submitted
that unlicensed reproduction in the manner that the defendants No.1 to 9
were doing, infringed the broadcasting rights of the plaintiff and had to be
straightaway injuncted. Reliance has been placed on the decision of a
Coordinate Bench of this Court in Super Cassettes Industries Limited v.
Chintamani Rao, 2011 SCC OnLine Del 4712. The learned counsel
submitted that despite the conclusion being disagreed to by the Division
Bench of this court in India TV Independent News Service Pvt. Ltd. v.
Yashraj Films Pvt. Ltd., 2012 SCC OnLine Del 4298, nevertheless, the
observations, particularly in respect of the ―violation of copyright‖ and
―fair dealing‖, had not been disturbed.
26. The further contention of the learned counsel for the plaintiff was
that the remarks and the language used in the videos of the defendants
No.1 to 9 reflected defamatory content. It was submitted that specific
words were used which resulted in ―commercial disparagement‖,
particularly, the description of the programme as a "shit programme", the
capacity of an anchor to create a riot, to derisively comment on a new
channel called „Good News Today‟, which has intended only to
disseminate positive news, since in usual course, these do not get
reported. Also, an attempt has been made to disparage the revenue model
of the plaintiff by proclaiming that they were an „ad-free‟ news channel.
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It was submitted that if the content had some problem, a complaint
redressal structure under the Cable Television Networks (Amendment)
Rules, 2021 was available where the defendants No.1 to 9 could have
filed a complaint, but they had no right or authority to take on the mantle
of a Regulator. It was submitted that the provision of Section 52 of the
Copyright Act, 1957 was not available to the defendants No.1 to 9 as,
firstly, the broadcasting on social-media was not included in Section 52
and even if it was, the programmes of the defendants No.1 to 9 did not
reflect ―fair comment‖ and amounted to „commercial disparagement‟,
which also ought to be straightaway injuncted.
27. Reliance has been placed by the learned counsel on decisions in
Hindustan Unilever Limited v. Gujarat Co-operative Milk Marketing
Federation 2017 SCC OnLine Bom 2572, Karamchand Appliances Pvt.
Ltd. v. Adhikari Brothers, 2005 SCC OnLine Del 1427, Dabur India
Ltd. v. Colortek Meghalaya (P) Ltd., 2010 SCC OnLine Del 391, Reckitt
Benckiser India V. Hindustan Unilever Limited 2021 SCC OnLine Del
4896, Anhueser Busch LLC v. Rishav Sharma [Order dated 20th July
2020 in CS(COMM) 288/2020], T.V. Today Network Ltd. v. COGNATE,
2021 SCC OnLine Del 3244, Lakshmi Murdeshwar Puri v. Saket
Gokhale, 2021 SCC OnLine Del 3675, Subramanium Swamy v. Union
of India (2016) 7 SCC 221 and Swami Ramdev v. Juggernaut Books
Pvt. Ltd., 2018 SCC OnLine Del 11549.
28. Mr.Saurabh Kirpal, learned senior counsel for the defendants No.1
to 9, submitted that the present suit was itself not maintainable as the suit
had been filed as a „commercial suit‟, but the dispute was not a
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„commercial dispute‟. It was urged that when there was a composite suit,
only a suit, which related to immovable property, would be maintainable
as a commercial suit and none others. Thus, if a suit was a composite one,
it had to go before the ordinary civil court. According to the learned
senior counsel, though the prayer „a‟ would make out a commercial suit,
since prayers „b‟ to „h‟ would make out only a civil suit for defamation
and damages, therefore, this was a „composite suit‟, and had to be tried
only in the ordinary civil jurisdiction and not in the special jurisdiction of
the commercial courts.
29. Reliance has been placed on Ambalal Sarabhai Enterprises Ltd. v.
K.S. Infraspace LLP, (2020) 15 SCC 585 to submit that the very intent
and purpose of having a special enactment, like the Commercial Courts
Act, 2015, was to fast-track pure commercial suits and if the other suits
were also inducted into the category of „commercial suits‟ by this method
of composite filing, the very system would get clogged and the purpose
of the special enactment frustrated. It was submitted that where the words
used were very clear, there was no occasion for interpretation. Therefore,
the only exception created by way of the Explanation to Section 2(1)(c)
had to be read in a restrictive manner to the effect that where a
commercial dispute also entailed a dispute with regard to immovable
property, then alone could the suit continue before the commercial courts
and not otherwise. In the present case, as there was no issue relating to
immovable property and what is alleged is only defamation for which
damages could be awarded, the plaint must be returned for proper filing.
30. On the question of grant of interim relief, it was submitted by the
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learned senior counsel that though it was not disputed that the reference
to the content of the plaintiff was there in the programmes of the
defendants No.1 to 9, however, it was covered by the provisions of
Section 52 of the Copyright Act, being ―fair dealing‖. In this context, it
was submitted that the judgment of the learned Single Judge in Super
Cassettes Industries Limited v. Chintamani Rao, 2011 SCC OnLine Del
4712, relied upon by the plaintiff, was inapplicable not only because it
was overruled by the Division Bench of this court, but also because of the
amendment to Section 52. It was submitted that the judgment rendered by
the learned Single Judge was when "fair dealing" with "literary",
"dramatic", "musical" or "artistic" work would not constitute
infringement in certain situations, but after 2012, this protection was
available to "fair dealing" with "any" work. It was also argued that what
the defendants No.1 to 9 had done was to „comment‟ on the reporting
quality of the plaintiff and therefore, the content that may have been
created by the plaintiff was being used only for criticism or review and
thus, protected. Hence, no case for infringement was made out.
31. As regards "defamation", it was submitted by the learned senior
counsel that the defendants No.1 to 9 were raising the "defence of truth",
which was an absolute defence and no interim injunction could be issued.
In any case, damages were also being sought, which would offset the
absence of interim injunction, were the suit to be finally decreed in favour
of the plaintiff. It was also submitted that fair criticism in harsh words
would not amount to defamatory statements. Moreover, "satire" was the
flavour of the programming of the defendants No.1 to 9 and there can be
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no plea of "defamation" against "satire".
32. It was also submitted that the plaintiff was not entitled to any
injunction, also because of misrepresentation of facts. It was contended
that the chart that was being used to show that the content of the plaintiff
was being reproduced by the defendants No.1 to 9, was in fact false, as
the videos clearly show the anchor of the defendants No.1 to 9 making
her comments even in the backdrop of the footage of the plaintiff‟s
programme and therefore, there was no copying and it was an original
piece of programming that was being aired by the defendants No.1 to 9. It
was submitted that the programme comprised of, what were the words
being used by the anchor as a comment on the small footage that was
taken as a context for the comment, which would not amount to any
infringement of copyright or defamation, but the improper depiction in
the chart showing large sections in red as if the entire programme of the
defendants No.1 to 9 constituted a complete copy of the contents of the
plaintiff‟s programming, disentitled them to any discretionary relief.
33. It was further submitted by the learned senior counsel that even the
plea of „commercial disparagement‟ was not made out. It was the case of
the learned senior counsel for the defendants No.1 to 9 that the plaintiff
and the defendants No.1 to 9 operate in different spheres inasmuch as the
plaintiff was in the Electronic Media of TV news and News based
programmes, whereas the defendants No.1 to 9 operated only on social-
media platforms. Further, there was nothing in the videos that would
show "disparagement", as whatever was being said was to indicate that
the plaintiff‟s channels had a bias, including of hesitancy to criticize the
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Government, and that all that the defendants No.1 to 9 were doing was to
show them the mirror. It was further submitted that when the aim of the
defendants No.1 to 9 was only to critique and point out the flaws in the
reporting on the plaintiff‟s channels, there could be no evident malice.
Moreover, the defendants No.1 to 9 must be given an opportunity to
establish this defence during trial, that the comments were based on truth.
34. It was further submitted by the learned senior counsel that the right
of the defendants No.1 to 9 to create such programmes was based on their
Fundamental Right to free speech and the same could not be curtailed
even without any specifics being pleaded in the plaint as to in which way,
„commercial disparagement‟ had occurred. It was urged by the learned
senior counsel that when the balance was to be sought between the
„pecuniary loss‟, if at all that may have resulted, and the „freedom of
speech‟, then the latter must be upheld.
35. It was submitted that though the print-media had a watchdog, since
the electronic media had none, persons like the defendants No.1 to 9
actually acted in public interest, by keeping a check on the news
channels. According to the learned senior counsel, on account of one such
programme criticizing an anchor of the plaintiff, namely, Anjana Om
Kashyap, she faced a lot of backlash, after which she herself publicly
apologized. Thus, the interest of the public being served by the
programmes of the defendants No.1 to 9, there was no ground at all to
direct the taking down of these videos. In any case, it was emphasized
that each video would have to be considered independently to know
whether it contained any disparaging material. Thus, without trial, no
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injunction could be issued to direct the taking down of the existing
programmes. Further, no urgency was declared as these videos relate to a
period since 2018, and injunction restraining future publication could not
be issued, as has been held in Khushwant Singh Vs. Maneka Gandhi
AIR (2002) Del. 58.
36. Reliance has been placed by the learned senior counsel for the
defendants No.1 to 9 on a compilation of case law viz. Reckitt Benckiser
(India) Ltd. v. Hindustan Unilever Ltd., 2013 SCC OnLine Del 1928;
Reckitt Benckiser (India) Limited v. Naga Limited, 2003 SCC OnLine
Del 365 and Gillette India Limited v. Reckitt Benckiser (India) Private
Limited, 2018 SCC OnLine Mad 1126; Pepsi Co., Inc. v. Hindustan
Coca Cola Ltd., 2003 SCC OnLine Del 802; Dabur India Ltd. v.
Colortek Meghalaya Pvt. Ltd., 2010 SCC OnLine Del 391; Colgate
Palmolive Company v. Hindustan Unilever Ltd., 2013 SCC OnLine Del
4986; Procter & Gamble Home Products Private Limited v. Hindustan
Unilever Ltd., 2017 SCC OnLine Del 7072; Hindustan Unilever Limited
vs. Reckitt Benckiser India Limited207 (2014) DLT 713; United States
Healthcare, Inc. vs. Blue Cross of Greater Phila. 898 F.2d 914 and
Hurlbut vs. Gulf Atlantic Life Ins. Co. 749 S.W.2d 762 (Tex. 1998);
Patient Transfer Sys vs. Patient Handling Solutions 1999 U.S. Dist.
LEXIS 19296; Frank Flaman Wholesale Ltd. v. Firman [1982] S.J. No.
279; American Legacy Foundation vs. National Union Fire Insurance
Company 623 F.3d 135 and Hipsaver, Inc. vs. Kiel 464 Mass. 517 (Mass.
2013); Khushwant Singh (supra); Tata Sons Limited v. Greenpeace
International, 2011 SCC OnLine Del 466andPushp Sharma v. D.B.
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Corp. Ltd., 2018 SCC OnLine Del 11537 were relied on. Reliance has
also been placed on the decisions in Mittal Electronics v. Sujata Home
Appliances (P.) Ltd., 2021 SCC OnLine Del 1401;Indibily Creative
Private Limited Vs. Government of West Bengal and Others(2020) 12
SCC 436; L. Usha Rani v. State of Kerala, 2013 SCC OnLine Ker
22118; Shreya Singhal v. Union of India AIR 2015 SC 1523; M/s
Seemax Construction (P) Ltd. Vs. State Bank of India & Anr. AIR
(1992) Delhi 197; Distillers Co. (Biochemicals) Ltd. Vs. Times
Newspapers Ltd. (1974) 3 W.L.R. 728; Indian Express Newspaper
(Bombay) Pvt. Ltd. Vs. Union of India (1985) 1 SCC 641; Subramanian
Swamy (supra); Surya Prakash Khatri Vs. Madhu Trehan(2001) 92
DLT 665; Khushwant Singh (supra); Campbell, Aka Skywalker Vs.
Accuffrose Music, Inc. 510 U.S. 569 (1994); Beloff Vs. Pressdram
Ltd.(1973) RPC 765 and Hubbard Vs. Vosper (1972) 2 W.L.R. 689.
37. In rejoinder, learned counsel for the plaintiff submitted that the suit
could be tried as a „commercial suit‟ despite inclusion of reliefs of
„infringement of copyright‟ and „commercial disparagement‟ since it was
covered under the definition of a „commercial dispute‟ as arising out of
intellectual property rights relating to copyright. It was submitted that it
was only a „dispute‟ that has been defined under Section 2(c), but it is on
the basis of the relief that the defendants No.1 to 9 were seeking to obtain
a direction for the re-registration of the case as a „non-commercial suit‟,
the relief being related to "defamation". It was contended by the learned
counsel for the plaintiff that commercial reputation was being sought to
be protected, which would be covered under Section 2(c) as arising out of
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the rights vested in intellectual property. Reliance has been placed on
Jasper Infotech Pvt. Ltd. v. Deepak Anand, 2015 SCC OnLine Del
14398 to submit that ―arising out of‖ would include a dispute relating to
„commercial disparagement‟.
38. Relying on Tarapore & Co. v. Cochin Shipyard Ltd., (1984) 2
SCC 680, it was submitted that ―arising out of‖ would mean ―in relation
to‖ or ―in reference to‖ any of the classes mentioned in Section 2(c).
According to the learned counsel for the plaintiff, the ―classes‖ of
disputes have been defined in the nature of „arrangements‟, „transactions‟
or „rights‟ and any dispute arising out of such „arrangements‟,
„transactions‟ or „rights‟ would come within the four corners of
„commercial dispute‟. To merely refer to the reliefs that were claimed
would, therefore, be improper. Furthermore, the reliefs could not be
bifurcated as it would contravene the provisions of Order II Rules 1 and 2
CPC. Thus, it was submitted that the suit was maintainable as a
„commercial suit‟. Arguments on merits were reiterated to urge for an
injunction against the defendants No.1 to 9.
39. Ms. Mamta Jha, the learned counsel for the defendant No.
10/Google LLC and Mr. Deepak Gogia, the learned counsel for the
defendant No.12/Twitter Inc., submitted that they were only
intermediaries and as has been held in Abhishek Verma (supra), the first
onus to take down the material would be on the defendants No.1 to 9 and
in case they do not do so, then alone should the intermediaries be asked to
step in and in which event, the URLs may be also indicated.
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DISCUSSION
40. I have heard the arguments on behalf of both sides and I have
perused the record and considered the cited judgments and the written
submissions filed on behalf of the plaintiff and the defendants No.1 to 9.
Whether the suit relates to a „commercial dispute‟
41. According to Mr. Saurabh Kirpal, learned senior counsel for the
defendants No.1 to 9, the instant suit could not be considered a
„commercial suit‟ since it was not covered under any of the clauses of
Section 2(1)(c) of the Act, considering that relief not only pertaining to
copyright violations had been claimed, but a relief qua defamation was
also claimed. It was urged that the Explanation limited the expansion of
the definition of a commercial dispute only in respect of an immovable
property and therefore, the present suit is not maintainable as a
„commercial suit‟ and had to be heard by a regular civil court.
42. Per contra, the contention of the learned counsel for the plaintiff
was that all disputes ―arising out of‖ the various clauses of Section
2(1)(c) would also be covered as a „commercial dispute‟. Section 2(1)(c)
may be reproduced for ready reference: -
―2. Definitions
(1) In this Act, unless the context otherwise requires,--
(a) xxx xxx
(b) xxx xxx
(c) "commercial dispute" means a dispute arising out
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of--
(i) ordinary transactions of merchants, bankers,
financiers and traders such as those relating to
mercantile documents, including enforcement and
interpretation of such documents; (ii) export or import of
merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines,
aircraft equipment and helicopters, including sales,
leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including
tenders;
(vii) agreements relating to immovable property used
exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining
to the services industry including outsourcing services
and financial services;
(xiv) mercantile agency and mercantile usage;
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(xv) partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to registered
and unregistered trademarks, copyright, patent, design,
domain names, geographical indications and
semiconductor integrated circuits;
(xviii) agreements for sale of goods or provision of
services;
(xix) exploitation of oil and gas reserves or other natural
resources including electromagnetic spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above;
and
(xxii) such other commercial disputes as may be notified
by the Central Government.
Explanation.-A commercial dispute shall not cease to be
a commercial dispute merely because--
(a) it also involves action for recovery of
immovable property or for realisation of monies out
of immovable property given as security or involves
any other relief pertaining to immovable property;
(b) one of the contracting parties is the State or
any of its agencies or instrumentalities, or a private
body carrying out public functions.‖
43. The words used in a statute are to be read and understood in their
ordinary meaning. Section 2(1)(c) does comprise of a list. But, it would
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be incorrect to hold that it sets out an exhaustive list of disputes that
qualify as commercial disputes. If that was the intent, the words used
would simply have been - ―the following are commercial disputes‖.
Instead, the words used are ―arising out of‖. That is, the source of the
dispute must be one of the clauses listed in Section 2(1)(c) of the Act.
The clauses do not limit the contours of the dispute that may arise. What
would be the actual dispute in respect of ordinary transactions of
merchants, or export and import of merchandise, or carriage of goods, or
construction and infrastructure, and so on and so forth, would remain
what would arise in ordinary course between two parties in the course of
these engagements and activities. Thus, such a dispute could be a breach
of contract or the enforcement of terms of contract entailing recovery not
only of the price, but possibly damages; disputes may relate to mutual
rights or obligations under Joint Venture Agreements or rights and
obligations in respect of Consultancy Agreements; disputes arising out of
technology development agreements could entail rights to the sharing of
the know-how and/or confidentiality, and so on and so forth. In short, if
the disputes were relatable to any of the clauses, the disputes would be
clothed with the additional adjective of being „commercial‟ in nature. The
classification has been given to make available a special procedure for
trial and speedy disposal of such disputes that impact economic activity.
44. The Explanations have been incorporated to ensure that only
because a certain relief is joined, the dispute does not get excluded from
the special procedure. According to the learned senior counsel for the
defendants No.1 to 9, Explanation-A restricts additional reliefs to only
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those connected with immovable property, which was why the joining of
the relief of defamation in the present suit took it out of the commercial
court‟s jurisdiction. This Court is unable to accept this argument.
45. In fact, the Division Bench of this court in Jagmohan Behl v. State
Bank of Indore, 2017 SCC OnLine Del 10706 and the Supreme Court in
Ambalal Sarabhai (supra) have interpreted Explanation-A differently.
Where disputes arose out of Agreements relating to immovable property
used exclusively in trade and commerce i.e., under Section 2(1)(c)(vii)
and where that dispute also additionally involved action for recovery of
immovable property or realization of monies out of immovable property
given as security or involved any other relief pertaining to immovable
property, such immovable property referred to in the Explanation-A
would have to be one that was in ‗actual' and exclusive use in trade or
commerce. That alone would not render a dispute not commercial in the
light of Explanation-A read with Section 2(1)(c)(vii). It is crystal clear
that these decisions do not conclude that the Explanation-A is to be read
with every clause under Section 2(1)(c). This Court is also not convinced
otherwise.
46. The Supreme Court further guided the commercial courts to
carefully examine and entertain only disputes which actually answer the
definition of commercial disputes as provided under the Act. It was held
by the Supreme Court that a narrow interpretation alone would give effect
to the object for which the Commercial Courts Act, 2015 was enacted and
by allowing all sorts of disputes in respect of all immovable property,
which was not in the presenti in actual use exclusively in trade or
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commerce, the very purpose would be defeated. The observations may be
reproduced fruitfully as under:-
―14. In that view it is also necessary to carefully
examine and entertain only disputes which actually answers
the definition ―commercial disputes‖ as provided under the
Act. In the instant case, as already taken note neither the
agreement between the parties refers to the nature of the
immovable property being exclusively used for trade or
commerce as on the date of the agreement nor is there any
pleading to that effect in the plaint. Further the very relief
sought in the suit is for execution of the mortgage deed
which is in the nature of specific performance of the terms of
Memorandum of Understanding without reference to nature
of the use of the immovable property in trade or commerce
as on the date of the suit. Therefore, if all these aspects are
kept in view, we are of the opinion that in the present facts
the High Court was justified in its conclusion arrived
through the order dated 1-3-2019 [K.S. Infraspace
LLP v. Ambalal Sarabhai Enterprises Ltd., 2019 SCC
OnLine Guj 1926] impugned herein. The Commercial Court
shall therefore return the plaint indicating a date for its
presentation before the Court having jurisdiction.‖
(emphasis added)
47. In Ambalal Sarabhai (supra), the Supreme Court indicated that a
„commercial dispute‟ must be a dispute that is covered by one of the
clauses and therefore, just as in that case the pleadings were referred to,
to consider whether the dispute set out in the plaint took the nature of a
„commercial dispute‟ and fitted into one of the clauses, that exercise
could be profitably undertaken in the present case.
48. A perusal of the plaint would disclose that consistently the plaintiff
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has alleged that the defendants No.1 to 9 have infringed their copyright in
content created by them for their own programme by investing human
and material resources and that a mandatory injunction be issued to
restrain the defendants No.1 to 9 from using the content so created by the
plaintiff and in which, under law, they were entitled to copyright
protection. The plaintiff has additionally submitted that while so
infringing the rights of the plaintiff in its created content, the defendants
No.1 to 9 had made defamatory and derogatory statements on the
programming content, quality of the content, the anchors, reporters and
editors of the plaintiff and the revenue model of the plaintiff, which also
amounted to commercial disparagement.
49. It is therefore, evident that the suit is not just for relief against
defamation, which would certainly not constitute a „commercial suit‟, but
is one in which the violation of the intellectual property rights, namely, in
copyright, has allegedly resulted in defamation/commercial
disparagement also. It is clear that the cause of action is the same,
namely, the uploading of the videos on YouTube and articles and other
content on the website of the defendants No.1 to 9 as well as on
Facebook, Twitter and Instagram. To hold that the plaintiff would have to
limit its relief before the commercial court only to the extent of violation
of intellectual property rights and must be asked to approach the civil
court for relief qua defamation, etc., would be against the objective of
Order II Rule 2 CPC, particularly to avoid conflicting judgments. The
purpose of procedure is to facilitate disposal and cannot be intended to
complicate matters for a litigant.
50. Learned counsel for the plaintiff submitted that a Co-ordinate
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Bench of this Court in Jasper Infotech (supra) while dealing with a suit
seeking permanent and mandatory injunction restraining disparagement,
defamation, passing off, treated that suit to be a „commercial dispute‟.
Since a case for protection against commercial disparagement has been
pleaded in the instant plaint, a different yardstick need not be adopted
here.
51. It is clear that relief in respect of copyright violations can be sought
only before the commercial court in view of the clause (xvii) of Section
2(1)(c) of the Commercial Courts Act. If the other reliefs claimed by the
plaintiff ―arise‖ out of such intellectual property rights, clearly the
commercial court would have the jurisdiction to try the suit. ―Arising out
of‖, on a plain reading, would cover situations such as in the present case,
where the reliefs are so closely intertwined, where disparagement is
alleged by the very use and portrayal of the copyrighted content of the
plaintiff by the defendants No.1 to 9.
52. Thus, it is concluded that the dispute at hand is a „commercial
dispute‟ and the commercial court has jurisdiction to try the suit.
COPYRIGHT INFRINGEMENT
53. The plaintiff has set up a case of copyright infringement on the
basis that work of the plaintiff is covered as a „cinematographic film‟
involving visual and sound recording accompanying such visual
recording. Broadcasting rights have also been asserted. Section 13 in
Chapter-III of the Copyright Act defines the "works" in which copyright
would subsist, namely, (a) original literary, dramatic, musical and artistic
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works; (b) cinematograph films; and (c) sound recording. The meaning of
copyright is explained in Section 14 as comprising of the exclusive rights
subject to the provisions of the Act to do or authorize, inter alia, the
reproduction of the work.
54. However, the present case would more appropriately be covered
under "broadcasting rights". The plaintiff creates programmes for
broadcast on its television channels and the social-media. A similar
exercise is undertaken by the defendants No.1 to 9 on their social-media
platforms. They communicate with the public and are broadcasters.
Broadcast is defined under Section 2(dd) of the Act, as below:-
―(dd) broadcast means communication to the public--
(i) by any means of wireless diffusion, whether in
any one or more of the forms of signs, sounds or
visual images; or
(ii) by wire, and includes a re-broadcast;‖
55. Chapter-VIII of the Act deals with the rights of „broadcasting
organization‟. Section 37 provides that every broadcasting organisation
shall have a special right to be known as ―broadcast reproduction right‖
in respect of its broadcasts. To assert rights of exclusivity to content in
respect of programmes created by a T.V. channel or a Social-Media
channel on YouTube or other similar platforms, in the considered opinion
of this Court, recourse need not be taken to the definition of
„cinematographic film‟ to enforce copyright. The question whether there
can be copyright within such programmes, is not being considered here as
it is not in issue.
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56. An infringing copy has been defined under Section 2(m), to also
include a copy of a programme in which broadcasting reproduction right
exists. Section 2(m)(iv) is reproduced for ready reference, as under:-
―2(m) infringing copy means--
(i) to (iii) xxx xxx
(iv) in relation to a programme or performance in
which such a broadcast reproduction right or a
performer's right subsists under the provisions of this
Act, the sound recording or a cinematographic film of
such programme or performance,;
if such reproduction, copy or sound recording is
made or imported in contravention of the provisions
of this Act.‖ (emphasis added)
57. Broadcast reproduction right, though limited for 25 years under
Section 37(2), prohibits the re-broadcast or reproduction of such
programmes without licence under Section 37(3) during the subsistence
of these special rights called broadcast reproduction rights. However,
Section 39 exempts certain acts as not infringing the broadcast
reproduction rights. In view of the language used, it would be akin to
Section 52, which also provides that certain acts would not be
infringement of copyright. Both sections prescribe that use which
amounts to ―fair dealing‖ would not amount to infringement of either
broadcast reproduction rights or copyright.
58. It may be useful to reproduce these provisions at this juncture, as
below:
"Section 39. Acts not infringing broadcast reproduction
right or performer's right.-- No broadcast reproduction
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right or performer's right shall be deemed to be infringed
by--
(a) the making of any sound recording or visual recording
for the private use of the person making such recording, or
solely for purposes of bona fide teaching or research; or
(b) the use, consistent with fair dealing, of excerpts of a
performance or of a broadcast in the reporting of current
events or for bona fide review, teaching or research; or
(c) such other acts, with any necessary adaptations and
modifications, which do not constitute infringement of
copyright under section 52.‖
"Section 52. Certain acts not to be infringement of
copyright.--
(1) The following acts shall not constitute an
infringement of copyright, namely:
(a) a fair dealing with a literary,
dramatic, musical or artistic work not being
a computer programme for the purposes of--
(i) Private use including research;
(ii) criticism or review, whether of that
work or of any other work;
(iii) the reporting of current events and
current affairs, including the reporting
of a lecture delivered in public;‖
59. Turning to the case at hand, it is clear from the videos/transcripts
that the content broadcast by the plaintiff on its news channels as well as
a new channel named as „Good News Today‟ or „GNT‟, has been
reproduced by the defendants No.1 to 9 in their programmes, namely,
„TV Newsance‟, „Criticles‟, and „NL Tippani‟ (some videos of ‗TV
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Newsance' were played in court). While the plaintiff claims that these
programmes are a complete reproduction of the programmes of the
plaintiff, the defendants No.1 to 9 submit that excerpts have been used of
these broadcasts of the plaintiff in relation to the reporting of current
events for bona fide review and criticism and thus, were protected under
Section 52 as a ―fair dealing‖. This argument would also be relevant for
determining „use‟ under Section 39. Hence, the arguments advanced by
both sides would be taken as arguments for the applicability of Section 39
and not just Section 52 of the Act.
60. The programmes produced by the plaintiff, as well as the
defendants No.1 to 9, whether through T.V. channels or on YouTube, are
clearly ―communication to the public‖. For the purpose of such a
communication, sound and visual images are used. It needs no stating that
the one who first creates a programme for ―communication to the public‖
would be the original creator and would be entitled to the same protection
against unauthorized reproduction as in respect of a "literary",
"dramatic", "musical" or "artistic" work. The original creator being the
first broadcaster would be vested with the reproduction rights and no one
else can reproduce it without licence. The exception would be Section 39
read with Section 52 of the Act. Undoubtedly, the decisions of the courts
in respect of "literary", "dramatic", "musical" or "artistic" work,
„cinematographic film‟ or „sound recording‟, particularly, to determine
the question of infringement of rights and defence of "fair dealing", may
be looked into profitably, even while considering ―broadcasting rights‖
and ―fair dealing‖ under Section 39.
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61. A T.V. news programme would, of necessity, relate to current
events and current affairs. Criticism or review of such programmes would
be both on content and the reporting of such current events and current
affairs. Reporting would, obviously, entail the coverage of current events
and current affairs in a particular manner and style, in keeping with the
philosophy of the T.V. channel or social-media channel. It is clear that to
comment on the act of reporting itself would be covered under
―criticism‖ or ―review‖ under Section 52 and Section 39 of the
Copyright Act and would be protected against allegations of
infringement. But, it would be a question of fact whether the
reproduction, which is alleged to be an infringing copy, is protected under
Section 39 and/or Section 52 of the Act and is actually in the nature of
review and criticism.
62. To reproduce content that is broadcast, a licence would be required
from the owner of the rights. The only exceptions recognized to this need
for licence before reproduction, are provided under Section 39 as noticed
hereinabove. Thus, excerpts of a broadcast could be re-broadcast if the
use is consistent with ―fair dealing‖ and is in respect of reporting of
current events or for bona fide review or teaching or research. The
broadcast reproduction right would not be infringed even on account of
re-broadcast with any necessary adaptations and modifications, which do
not constitute infringement of copyright under Section 52. In other words,
the provisions of Section 39 will need to be read along with Section 52
whereunder, ―fair dealing‖ for private or personal use, for criticism or
review of that work or any other work, or reporting of current events and
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current affairs, have also been excluded from acts of infringement. Of
course, there are several other provisions which exclude acts as non-
infringing, but in respect of broadcasting, the additional provisions would
be Section 52(1)(z)(za) and (zb), but these two have no immediate
bearing on the issue involved in the present matter.
FAIR DEALING
63. What is, therefore, relevant to the determination of infringement of
copyright and broadcast rights would be whether there has been ―fair
dealing‖. What constitutes ―fair dealing‖ and ―fair comment‖ has been a
matter of discussion in several cases.
64. One of the earliest decisions was by the Court of Appeal in Slim
and Others v. Daily Telegraph Ltd. and Others [1968] 2 Q.B. 157. ―Fair
comment‖ in that case was being determined in the context of ―libel‖ and
―slander‖ and while considering the plea of ―justification‖ and ―fair
comment‖ raised by the defendants, as in the present case, Lord Denning
MR opined that the question of such defences of ―justification‖ and ―fair
comment‖ would have to be founded on an absence of dishonest motives
and bad faith. The questions that the court would have to consider would
be whether the comment was actuated by malice, or was an honest and
genuine opinion of the one expressing it and was in public interest.
65. The view taken was that even if the words conveyed derogatory
imputations or the information was exaggerated or prejudiced or very
badly expressed, allowing the people (here the viewers/users) to read all
sorts of innuendos into the badly expressed opinion, nevertheless, the
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defence of "fair comment" would be a good defence. A caution may be
flagged here, that reputation cannot be thereby harmed, as discussed later.
66. In Hubbard (supra), the question related to copyright and the
question of ―fair comment‖ in respect of alleged copyright infringement.
Lord Denning MR observed as below:-
―It is impossible to define what is ―fair dealing.‖ It
must be a question of degree. You must consider first the
number and extent of the quotations and extracts. Are they
altogether too many and too long to be fair? Then you
must consider the use made of them. If they are used as a
basis for comment, criticism or review, that may be fair
dealing. If they are used to convey the same information as
the author, for a rival purpose, that may be unfair. Next,
you must consider the proportions. To take long extracts
and attach short comments may be unfair. But, short
extracts and long comments may be fair. Other
considerations may come to mind also. But, after all is said
and done, it must be a matter of impression. As with fair
comment in the law of libel, so with fair dealing in the law
of copyright. The tribunal of fact must decide. In the
present case, there is material on which the tribunal of fact
could find this to be fair dealing.‖
67. Two decisions of Co-ordinate Benches of this Court have been
relied upon by the plaintiff, namely, (i) Super Cassettes Industries Ltd. v.
Hamar Television Network Pvt. Ltd., 2010 SCC OnLine Del 2086 and
(ii) Super Cassettes Industries Limited v. Chintamani Rao, 2011 SCC
OnLine Del 4712, to contend that the use by the defendants No.1 to 9 of
the contents created and produced by the plaintiff do not fit the bill of
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―fair dealing‖. The learned Single Judge in Super Cassettes Industries
Ltd. v. Hamar Television Network Pvt. Ltd., 2010 SCC OnLine Del 2086
discussed various decisions and summarized the broad principles of law
in para No.8, as below:-
―8. If I may summarise the broad principles of law which
have enunciated in the judgments cited before me on the
aspect of ―fair dealing‖. These appear to be as follows:--
(i) It is neither possible nor advisable to define the exact
contours of fair dealing;
(ii) It is a question of fact, degree, and at the end of the
day overall impression carried by the court;
(iii) In ascertaining whether extracts taken from
copyrighted work have been put to fair use, the extent and
the length of the extracts may be relevant. Long extracts
followed by short comments may in certain circumstances
be unfair, while short extracts followed by long comments
may be fair. In certain circumstances even small extracts,
which are taken, on regular basis may point to unfair use of
the copyrighted work.
(iv) The right to make fair use or to deal fairly with the
copyrighted work includes the right to criticize not only the
style, but also as the underlying doctrine or philosophy of
the copyrighted work. In this regard criticism could be both
―strong‖ and ―unbalanced‖. Such criticism by itself will
not result in forfeiture of the defence of fair dealing.
Malicious and unjustified criticism may give to the
aggrieved party a cause for instituting an action for
defamation but it would certainly not confer a right founded
in copyright.
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(v) In ascertaining as to what would constitute reportage
of ―current events‖ or would fall within the ambit of
―criticism‖ or ―review‖, Courts ought to adopt a liberal
approach;
(vi) In discerning as to whether a person has made fair
use of copyrighted work, the standard employed ought to be
that of a ―fair minded‖ and ―honest person‖. In the case of
musical works the test would be that of a ―lay hearer‖
(vii) While examining the defence of fair dealing, the
length and the extent of the copyrighted work which is made
use of, as indicated in clause 3 above, is important,
however, it cannot be reduced just a quantitative test
without having regard to the qualitative aspect. In other
words, enquiry ought to be made as to whether the
impugned extract forms an essential part of the work of the
person in whom inheres the copyright. This may be
particularly true in the case of musical works where a few
notes may make all the difference;
(viii) Even though copyrighted work may contain
confidential information, the courts would desist from
injuncting the use of such work if it is in public weal.
Though there is a difference between a breach of confidence
as against infringement of copyright, the Court would not
grant an injunction in favour of the person in whom inheres
the copyright if it is contrary to public policy, that is, is:
(a) immoral;
(b) scandalous;
(c) contrary to family life;
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(d) injurious to public life, public health, safety or, is
inimical to administration of justice; and
(e) incites an action which endangers (c) and (d) above.
(ix) The principle of freedom of expression will protect
both information and ideas. Freedom of expression includes
the right to publish and receive information. Public interest
may in certain circumstances be so overwhelming that
courts would not refrain from injuncting use of even
―leaked information‖ or even the right to use the ―very
words‖ in which the aggrieved person has copyright, as at
times, public interest may demand the use of the ―very
words‖ to convey the message to public at large. While the
courts may desist from granting injunction based on the
principle of freedom of expression, this would, however, not
necessarily protect the infringer in an action instituted on
behalf of the person in whom the copyright vests for
damages and claim for an account of profits;
(x) Public interest and what the interests the public need
not be the same:
(xi) The motive of the user shall play an important role
in assessing as to whether injunction ought to be granted;
(xii) Commercial use of copyrighted work cannot
simplicitor make it unfair; and
(xiii) Lastly, ―transformative use‖ may be deemed in
certain situations as fair use of copyrighted work;‖
68. Though it was urged by the learned senior counsel for the
defendants No.1 to 9 that the decision in Super Cassettes Industries
Limited v. Chintamani Rao, 2011 SCC OnLine Del 4712 had been set
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aside, there is force in the submissions made by learned counsel for the
plaintiff that the discussion on ―fair dealing‖ could be referred to
profitably even if the final relief was declined. It is considered apposite to
reproduce para No.27 thereof as below:-
―27. Before I proceed to deal with the case law cited
by the parties and examine the position on facts, I think it
appropriate to make a few preliminary observations
according to my understanding of the statutory position on a
plain reading of Section 52 of the Act. What Section 52(1)(a)
permits is that the literary, dramatic, musical or artistic
work may be reproduced without fear of infringement of
copyright in such works, if such reproduction is a fair
dealing of the copyright work in question, for the purpose of
criticism or review whether of that work or any other work.
Therefore, firstly it has to be ―fair dealing‖ of the work in
question. This means that the dealing with the copyrighted
work is not an unfair dealing. Only that part of the literary,
dramatic, musical or artistic work may be utilized for the
purpose of criticism or review, which is absolutely
necessary, and no more. The purpose - ostensibly or
obliquely, should not be to ride piggy back on the work of
another. The focus of attention, and interest of the
producer/author of the work and the viewer/listener should
not be the work of another, but the work created by the
person who may, bona fide be using the work of another for
the specific purpose of criticism or review of that work, or of
any other work. The work of another cannot be used for any
other purpose. The copyright protected work of another
cannot be used out of context. There has to be an intellectual
input and an original mental exercise undertaken by the
person bona fide lifting or copying the literary, dramatic,
musical or artistic work, which should involve either the
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criticism or review of the lifted/copied work, or of any other
work. Copying of the work of another for any other purpose,
such as, to make one's own programme more interesting,
attractive or enjoyable is not permitted. The underlying
theme and focus of; and, in substance, the new work should
necessarily be an exercise to either criticize or review either
the bona fide copied work, or any other work. A person
cannot, in the name of ―fair dealing‖, lift or copy literary,
dramatic, musical or artistic work of another to such an
extent that it ceases to be a ―fair dealing‖ and becomes a
blatant act of copying the work of another.‖
69. It is evident from these decisions that when work that is subject to
copyright or broadcast rights, is used, and a plea of infringement of those
rights is raised in a suit, the defence of ―fair dealing‖ by use of excerpts
is a plausible defence to such a plea. The court would then look into the
validity of the defence raised on parameters, such as, whether the
comments were devoid of malice; they were honestly made; and in public
interest; the reproduction was of short excerpts; there was some creative
input of the copier/reproducer; they constituted criticism and review, and
there was no blatant act of copying. But as observed in Hubbard (supra),
these are all questions of fact and have to be decided by the Trial Court.
One of the pleas urged by the defendants No.1 to 9 is that though they
were using excerpts from the programmes of the plaintiff, they were
doing so with an intent to comment and remove bias from reporting,
which was in public interest, and there was „transformative use‟ inasmuch
as the excerpts were superimposed with the comments by the defendant
No.5/Manisha Pandey (Newsance) and the defendant No.8/Atul
Chaurasia (Tippani). This defence raised will also have to be established
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on the support of facts that would need to be proved.
Commercial Disparagement
70. It is the contention of the plaintiff that not only are the defendants
infringing the copyright of the plaintiff, but were portraying the content in
such a manner, with comments, that amounted to commercial
disparagement. Reputation, to put simply, is life itself. The high test laid
down in Bonnard v. Perryman, [1891] 2 Ch. 269 before an injunction
could be granted restraining publication affecting reputation, has since
been eased in England in Taveta Investments Limited Vs. The Financial
Reporting Council, [2018] EWHC 1662 (Admin). In India too, it has
been held that right to reputation is sacrosanct. In Subramanium Swamy
(supra), the Supreme Court while dealing with the constitutional validity
of Section 499 and Section 500 IPC has recognized „reputation‟ as being
an inherent component of Article 21 of the Constitution and that no one
could be allowed to sully the reputation of another by claiming the right
to freedom of speech and expression guaranteed under the Constitution of
India.
71. There is no gainsaying that the plaintiff and the defendants No.1 to
9 are competitors inasmuch as both are available to social-media users,
apart from the fact that the plaintiff is also broadcasting through
television channels. ―Commercial Disparagement‖ would occur when
one player in the field derides a rival and belittles or discredits or detracts
from the reputation of such a rival in respect of its products, services or
business. While claiming to be the best, any statement about a
competitor‟s goods, which could be untrue or misleading and is made to
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influence or tend to influence the public, would amount to disparagement.
This has been the view taken in Reckitt Benckiser India Private Limited
Vs. Hindustan Unilever Limited 2021 SCC OnLine Del 4896, though in
the context of comparative advertisements. Competitive advertisements
are permissible as held in Tata Press Limited Vs. Mahanagar Telephone
Nigam Limited and Others (1995) 5 SCC 139, as advertising is essential
for economic activity. It informs the consumers of the existence of
various goods and services, the quality of these products and services, the
product origin etc. It also builds up reputation. It is in this context that the
Supreme Court held that ―commercial speech‖ is a part of the freedom of
speech and expression guaranteed under Article 19(1) (a) of the
constitution.
72. Similar view was taken by a Co-ordinate Bench of this court in
Dabur India Limited v. Emami Ltd., 2019 SCC OnLine Del 9022. That
was a suit filed by the plaintiff seeking permanent injunction against the
defendant from broadcasting, printing and publishing the „ZANDU
CHYAVANPRASHAD‟ advertisement which they felt was disparaging
of and injurious to its own goodwill and reputation. This Court had the
occasion to deal with a similar issue in Fiitjee Ltd. v. Vidya Mandir
Classes Ltd., 2022 SCC OnLine Del 484, where it held as below:
"26. Since it is the case of the plaintiff that the video is
in response to the advertisement of the plaintiff, the video
though of some length can also be considered as an audio-
visual advertisement of the defendants, to assure their
students and their parents of the quality of education
imparted in their institutions. The content of the video would
then have to be assessed on the three Tests that have been
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laid down by the Division Bench of this court in Pepsi Co.,
Inc. v. Hindustan Coca Cola Ltd., 2003 SCC OnLine Del
802 to decide the question of disparagement, namely (i)
intent of the commercial; (ii) manner of the commercial; (iii)
storyline of the commercial and the message sought to be
conveyed by the commercial. A fourth factor has been
included by the Co-ordinate Bench of this court in Reckitt
Benckiser India Private Limited v. Hindustan Unilever
Limited, 2021 SCC OnLine Del 4896 viz., (iv) while
glorifying its product, an advertiser may not denigrate or
disparage a rival product.
27. While some latitude is to be given for hyperbole
and commendatory expression for oneself with an attempt to
show down the competitor, there can be no license to anyone
to denigrate the competitor. The courts have protected
parties who have been at the receiving end of such negative
advertisements.
28. There can be no doubt that justification would
require to be established by evidence. What would be the
impact of a video being shown on social media and shared
and viewed by people several times over, on a common and
ordinary person who is an anxious parent wanting to send
his/her child to enter the portals of reputed engineering
colleges and looking for a coaching institute, may have to be
considered. But the view taken by this court in Tata Sons
Limited v. Greenpeace International (supra) is that wider
viewership or a degree of permanence characteristic of
publication on the internet would not change the essential
fact that it too is but a medium of expression and calls for no
different standards for grant of interlocutory injunction.
There is no reason for this Court to take a different view.‖
73. A question may arise as to the relevance of these decisions relating
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to advertisement to the issue at hand. For one, they recognize the right of
an organization to proclaim before the public their superiority over rivals.
What is however prohibited is to call the rival‟s products or services as
poor or make untrue statements or mis-statements about the rival‟s
products or services. So also in the field of copyright and broadcast
rights, where a plea is taken of fair dealing, for if the rubicon is crossed,
the comment would make the defendant liable for defamation, harm to
reputation and disparagement. In other words, the programmes of the
defendants No.1 to 9 must not be showing the plaintiff‟s programmes in
poor light, asking viewers to stop watching the plaintiff‟s channels while
claiming their own to be the best. This, of course, will again be a question
of fact as to whether commercial disparagement has occurred or not. The
―defence of truth‖, it may be noted, would be available as an absolute
defence to the plea of defamation/disparagement. This defence too is to
be established during trial.
Three Cardinal Principles
74. When a court is to consider the grant or refusal of interim
injunction, the court would have to consider whether the plaintiff has
made out a ―prima facie case‖ in its favour. Even if such a case has been
disclosed, the plaintiff would also have to establish what ―irreparable
harm and injury‖ is suffered by the plaintiff, entitling it to interim
protection and which has to be then balanced with the injury that the
defendants could suffer, if, after the interim protection is granted against
the defendants, the plaintiff loses the suit. It would, therefore, be
necessary to determine whether the plaintiff in the present case has
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succeeded in meeting these three cardinal requirements, namely, ―prima
facie case‖, ―irreparable loss and injury‖ and ―balance of convenience‖,
to be entitled to the injunctions as prayed for.
75. On this aspect, the pertinent observations of the Supreme Court in
Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727 may be
reproduced profitably, which are as follows:
"9. Usually, the prayer for grant of an interlocutory
injunction is at a stage when the existence of the legal right
asserted by the plaintiff and its alleged violation are both
contested and uncertain and remain uncertain till they are
established at the trial on evidence. The court, at this stage,
acts on certain well settled principles of administration of
this form of interlocutory remedy which is both temporary
and discretionary. The object of the interlocutory
injunction, it is stated
―...is to protect the plaintiff against injury by
violation of his rights for which he could not adequately be
compensated in damages recoverable in the action if the
uncertainty were resolved in his favour at the trial. The
need for such protection must be weighed against the
corresponding need of the defendant to be protected against
injury resulting from his having been prevented from
exercising his own legal rights for which he could not be
adequately compensated. The court must weigh one need
against another and determine where the ‗balance of
convenience' lies.‖
The interlocutory remedy is intended to preserve in
status quo, the rights of parties which may appear on a
prima facie case. The court also, in restraining a defendant
from exercising what he considers his legal right but what
the plaintiff would like to be prevented, puts into the scales,
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as a relevant consideration whether the defendant has yet
to commence his enterprise or whether he has already been
doing so in which latter case considerations somewhat
different from those that apply to a case where the
defendant is yet to commence his enterprise, are attracted.‖
76. Having considered the law regarding ―copyright/broadcast
infringement‖, ―fair dealing/fair comment‖, ―commercial
disparagement‖ and the ―principles governing grant of interim relief of
injunction‖, we may now determine whether the plaintiff is entitled to the
interim injunctions as prayed for.
CONCLUSION
77. The right to free speech and expression has been enshrined in our
Constitution as a Fundamental Right. The right to free expression has
therefore been stoutly protected by the courts. No doubt, the right to free
speech is not unbridled nor is it recognized as absolute. It is subject to
reasonable restrictions, which includes the right to reputation, as has been
recognized in several judgments, particularly, Subramanium Swamy
(supra). In Secy., Ministry of Information & Broadcasting, Govt. of
India v. Cricket Assn. of Bengal, (1995) 2 SCC 161, the right to freedom
of speech and expression has been found to include the right to acquire
information and disseminate it and includes the right to disseminate ideas.
Quite clearly, the right to broadcast programmes would be included in the
right to free speech and expression. As has been held in Sakal Papers (P)
Ltd. v. Union of India, (1962) 3 SCR 842, the right to free speech and
expression carries with it the right to publish and circulate one‟s ideas,
opinions and views with complete freedom and by resorting to the
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available means of publication, which, in the opinion of this Court, would
also mean and include not only the electronic media and T.V. channels,
but also the social-media platforms as the object of publication and
broadcast is the same i.e., to reach out to the public.
78. As observed by the Supreme Court in Subramanium Swamy
(supra) reputation is an integral part of the dignity of an individual and if
reputation is damaged, society as well as the individual would be the
loser. The old Bonnard Principle which set the high thresh-hold for grant
of injunction restraining publications on the ground of defamation and
harm to the reputation, has been watered-down by the courts, as noticed
above. The right to free speech is an important right, but reputation is an
equally important right. The courts, over a period of time, have
pronounced that reputation is an internal and central facet of right to life,
as protected under Article 21 of the Constitution. Thus, a balance would
have to be struck between the two rights, one under Article 19(1)(a) and
the other under Article 21 of the Constitution.
79. The defendants No.1 to 9, in the present case, have however
asserted another right and that is the unrestricted „right to comment‟. This
right to comment on the content created by others is claimed by them as
an exercise in public interest. It was the submission of the learned senior
counsel for the defendants No.1 to 9 that since the media had unbridled
power on account of the impact of its broadcast and reach, and since
unlike the print media, there was no regulation of the T.V. channels and
also the social-media, an unrestricted right to comment on each other‟s
content would steer the media into communicating and disseminating
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information correctly, without bias.
80. This Court cannot accept this self appointment by the defendants
No.1 to 9 as a „Regulator‟ of the content of the media, for the reason that
mechanisms exist for redressal of grievances relating to content of news
channels and for social-media content, set-up statutorily, including by the
platforms themselves. It is obvious that there can be no "free for all" in
the regulatory sphere. Every individual or organization cannot claim
authority to regulate - the chaos can be imagined - there will be only
regulators and none willing to bide by regulations!! But, dehors this claim
to the status of a regulator, albeit an informal one, what is seen is that
basically, the defendants No.1 to 9 disapprove of the coverage of current
news both, in the style, as well as its prioritization, by the main stream
media and T.V. channels or even the social-media platforms. But that
would be the opinion of the defendants No.1 to 9. The plaintiff may have
a contrary view regarding the prioritization and presentation of current
events by the defendants No.1 to 9. Therefore, ex facie, there is no public
interest in the particular programming of the content and broadcast of
such content by the defendants No.1 to 9. Every media house and channel
on T.V. or the social-media platforms, including that of the defendants
No.1 to 9, have their own philosophy, which gets reflected in the manner
of reportage and content of the programmes and that is not necessarily a
bad thing.
81. What is not acceptable is the assertion of a supervisory right by one
media over another, as is the claim of the defendants No.1 to 9 in the
present case. Also hyperbolic is their claim that it is their criticism of the
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programmes of the main stream media, including of the plaintiff, that
push them into rectifying mistakes and that therefore, their programmes
were invaluable in public interest, and as a corollary, therefore, their right
to comment and criticize cannot be restricted.
82. Leaving aside such assertions, this Court would accept that the
right to comment on content created on social-media or on T.V. channels
has also to be recognized as a facet of the right to free speech and
expression under Article 19(1)(a). In fact, the availability of a multitude
of reporting styles, prioritization and presentation of events that occur
daily, would always be in public interest, since broadcast is intended to
communicate to the public. Dissemination of a spectrum of information
by many players would result in a better informed society. Different
priorities would result in a range of information being readily available
with regard to current events. Varied presentations and discussions would
result in the availability of several shades of opinion before the public,
which can then come to its own conclusion. It would definitely be in the
interest of the public that every broadcaster has the right of fair comment
on current events and of criticism and review, including of the
programmes created by others.
83. However, once again, if the right is one to be protected under
Article 19(1)(a), it will have to be subjected to reasonable restrictions
under Article 19(2). The possible exceptions to this free expression of
opinion, if one may venture in that direction, would obviously be those
that threaten national security and law and order, which would need some
monitoring of content or are ex facie false, defamatory, derogatory or
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disparaging in content and/or presentation. Of course, the right to privacy
and reputation cannot be violated in the garb of freedom to comment.
Other than that, the ability to express an opinion must be freely available
for all who hold an opinion.
84. It is the case of the plaintiff that the programmes of the defendants
No.1 to 9 actually use words that portray the plaintiff in very poor light
that they are engaging anchors who could ―create a riot‖ or ―their
business model was below par‖, since the defendants No.1 to 9 did not
seek advertisement and so on. This is countered by the defendants No.1 to
9 saying that they were justified in their comment. It is trite that while
determining whether the broadcast or the telecast contained defamatory
or disparaging content, it would be necessary to examine the intent and
the absence of malice as also the overall effect of the programme
commented upon, not just on the subscribers/loyal viewers of the
television or the social-media channels, but its impact on a reasonable
person, who is generally interested in viewing such programmes. Or to
put it succinctly, it is a question to be determined by the trial judge,
whether or not the comments and programmes are ―fair comment‖ or not
and that determination can be only after the conclusion of the trial.
85. Turning to the next submission made on behalf of the defendants
No.1 to 9 that the content of their programme was satirical in nature, and
relying on Indibily Creative (P) Ltd. v. State of W.B., (2020) 12 SCC 436
sought the fullest liberty to critique and criticize, through satire, the
programmes of the plaintiff. While freedom of expression would include
the art of satire, it must be evident that what was being presented is
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indeed satire. It must be self-evident and by its very character can never
be a case of copyright infringement or defamation or even disparagement.
Satire cannot be explained or else it would lose its flavour. Satire allows
the satirist to criticize in the harshest of terms and critique actions of all,
particularly of those in positions of power and/or authority and
leadership. The intention of the satirist is to simultaneously highlight an
action and its negative fallout, so that rectificatory action could be taken.
It is never intended to disparage or harm reputation and thus is
completely devoid of malice. Satirists, at all times in our culture, have
been greatly respected and there are several art forms in this country that
allowed such criticism of even the Rulers in the heydays of Monarchy
and which art forms still exist. Examples, that come to mind are
"Ottamthullal" and the "Chakiyaarkoothu", both in Kerala. Sharp use of
language conveys the message intended by the artists, but in a cultured
and nuanced manner. Such creative genre must, without doubt, be
encouraged and protected. Since the defendants No.1 to 9 claim their
programme is satire, they need to explain which one of their programmes
is "satire", what portion is "comment" and what justified "criticism". But
whether the comment is satirical or malicious would have to be
established as a fact and therefore, would require trial and a presumption
either way cannot be drawn at this stage.
86. In this background, it would be necessary to determine whether the
plaintiff has satisfied the three cardinal principles for grant of interim
injunction. It may be mentioned that the interim injunction is sought at a
time when the rival claims are yet to be determined for their merit.
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Additionally, in the case of defamation, it is also to be seen, what is the
defence raised, and if the defence is of ―truth‖ or ―justification‖ that has
been raised, ordinarily, no injunction would follow as the defendant has
to get the opportunity to prove such a defence. In the present case,
―truth‖ was pleaded, but without disclosing whether the ―truth‖ relates
to the events covered, or the ―truth‖ of the manner of coverage of current
events by the plaintiff, or the ―truth‖ of the comments of the defendants
No.1 to 9. It does not seem that in the present case, truth is available as a
defence. At best, what is portrayed in the programmes of the defendants
No.1 to 9 is an opinion. That opinion is claimed to be, firstly, in the
public interest and, secondly, an honest and fair comment. The comments
do not seem strictly in public interest, except as part of the larger picture
of the right to express an opinion adding to the availability of myriad
such opinions to the public at large. Whether the comments constitute
honest and fair comment will require trial.
87. As regards the existence of a ―prima facie case‖, the plaintiff has
shown that the content created by them is protected by the statute under
broadcast rights and the defendants No.1 to 9 have not sought nor have
been granted any licence for reproduction. The extracts given in the
written submissions in a tabular form may be conveniently looked into, to
determine whether a case of disparagement is made out. Some of the
contents, as listed, are ex-facie defamatory/disparaging of the programme
of the plaintiff. The use of words such as, "shit standards", "shit playing"
on the channel, "shit reporters", "shit show", would show, that the words
are intended by the defendants No.1 to 9 to indicate, that the
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programmes/shows of the plaintiff are bad. The other extracts may, at this
stage, appear as criticism and an opinion that the defendants No.1 to 9
could seek to justify. Again, to say that one of the anchors was engaged
as she had great potential for starting a riot, would seem disparaging of
the capacity of the plaintiff to engage capable anchors apart from a
questioning of the anchors own capabilities, and how such statements
would be justified by the defendants No.1 to 9, is not evident.
88. The other suggestive comments, that seeking advertisements was
bad as a revenue model and that the model of the defendants No.1 to 9 of
seeking subscriptions alone ensured a free and unbiased reporting, would
be commercial disparagement, as advertisements on T.V. channels or
even social-media cannot be a ground for rejecting a channel‟s view point
or reporting. There is no gainsaying that advertisements plays a
significant role in informing the public of availability of goods and
services and the wide reach of the electronic media and T.V. channels as
also the social-media, often lead manufacturers of goods and services to
advertise on these platforms and thus, expand their own business. These
statements call for justification by the defendants No.1 to 9.
89. On these facts, which have been noted, it cannot be denied that a
―prima facie case‖ is disclosed. But disclosure of a prima facie case
alone will not entitle a plaintiff to interim injunction. The other two
requirements of ―balance of convenience‖ and ―irreparable loss and
injury‖ will need to be established before such injunction can be granted.
Since ―justification‖ and ―fair dealing‖ have been pleaded as defence,
and such defence is based on facts, the defendants No.1 to 9 have to be
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given an opportunity to prove justification during trial. Furthermore, the
extent of infringement or fair use for fair comment and criticism would
also be a matter of trial as each video would have to be considered to
determine whether the excerpts are significant to be outright copying, or
constitute fair use without infringement. The contents of the individual
videos, the articles, the Facebook and Instagram posts will have to be
looked into individually to determine if they contain malicious, dishonest,
defamatory and disparaging statements or constitute honest and possible
satirical opinion. In short, the decision has to be deferred till after the
conclusion of the trial.
90. The ―balance of convenience‖ would, therefore, tilt in favour of
the defendants No.1 to 9 as, in the event they are able to establish
justification and fair comment and fair dealing, the plaintiff would fail,
both in respect of their claim against copyright infringement/broadcast
right violation as also defamation/disparagement. If there is no
justification, there could probably be no fair comment either and thus no
defence against defamation either. Moreover, no injunction in futuro can
be issued, as has been held in Khushwant Singh (supra) and R.
Rajagopal v. State of T.N., (1994) 6 SCC 632. Admittedly, some of the
videos and articles and posts in question, have been in existence since
2018 and hence, no real urgency has been shown even for the removal of
even those words noted hereinbefore, by issuing mandatory injunctions to
take them down. It must be kept in mind that a mandatory injunction is
issued at the interim stage only in rare and extraordinary situations. It
would be useful to reproduce the guidelines of the Supreme Court
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recorded in its decision in Dorab Cawasji Warden v. Coomi Sorab
Warden, (1990) 2 SCC 117, which are as under:
―16. The relief of interlocutory mandatory
injunctions are thus granted generally to preserve
or restore the status quo of the last non-contested
status which preceded the pending controversy
until the final hearing when full relief may be
granted or to compel the undoing of those acts
that have been illegally done or the restoration of
that which was wrongfully taken from the party
complaining. But since the granting of such an
injunction to a party who fails or would fail to
establish his right at the trial may cause great
injustice or irreparable harm to the party against
whom it was granted or alternatively not granting
of it to a party who succeeds or would succeed may
equally cause great injustice or irreparable harm,
courts have evolved certain guidelines. Generally
stated these guidelines are:
(1) The plaintiff has a strong case for trial.
That is, it shall be of a higher standard than a
prima facie case that is normally required for
a prohibitory injunction.
(2) It is necessary to prevent irreparable or
serious injury which normally cannot be
compensated in terms of money.
(3) The balance of convenience is in
favour of the one seeking such relief.
17. Being essentially an equitable relief the
grant or refusal of an interlocutory mandatory
injunction shall ultimately rest in the sound
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judicial discretion of the court to be exercised
in the light of the facts and circumstances in
each case. Though the above guidelines are
neither exhaustive nor complete or absolute
rules, and there may be exceptional
circumstances needing action, applying them as
prerequisite for the grant or refusal of such
injunctions would be a sound exercise of a
judicial discretion.‖ (emphasis added)
91. The existence of a few videos with use of words listed in the
written submissions of the plaintiff or articles and posts which have been
in circulation for a few years now, do not, in the opinion of this Court,
constitute exceptional circumstances for the issuance of directions in the
nature of mandatory injunction. Were the defendants No.1 to 9 to succeed
in their defence, the harm caused to the defendants No.1 to 9 would
outweigh the loss caused to the plaintiff. This is so also because the
plaintiff would be entitled to be compensated with damages, which the
plaintiff has actually quantified to the tune of Rs.2,00,00,100/- (Rupees
Two crores and one hundred). Thus, no ―irreparable loss or injury‖ that
cannot be recompensed by damages will be caused to the plaintiff in the
absence of the interim injunction.
92. Though submissions were made regarding mis-representation, in
the light of the view taken, it is considered unnecessary to go into that
issue at this stage. Suffice it to observe that during trial, both sides would
have ample opportunity to show the extent of reproduction made by the
defendants No.1 to 9 of the content of the plaintiff, in their own
shows/programmes. The Trial Court would be in a better position to
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:29.07.2022
14:38:22
consider whether there has been misrepresentation of facts.
93. In the light of the foregoing discussion, the application [I.A.
14237/2021] under Order XXXIX Rules 1 and 2 CPC stands dismissed.
94. Needless to add, nothing contained in this order shall be construed
as an expression on the merits of the case, to be determined after trial.
95. The application stands disposed of.
CS(COMM) 551/2021 & 4827/2022 (of D-1, 2, 5, 8 & 9 u/O VIII R-1
CPC for condonation of 90 days delay in filing WS)
96. List before the Roster Bench.
97. The order be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
JULY 29, 2022
s
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:29.07.2022
14:38:22
