Delhi High Court
Frankfinn Entertainment Company ... vs Unisys Infosolutions Pvt. Ltd. & ... on 2 March, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 2nd March, 2022
+ CS(COMM) 192/2021, I.A.5727/2021 (by the plaintiff u/O
XXXIX R- 1 & 2 CPC), I.A.6086/2021 (by the plaintiff u/O
XXXIX R-2A CPC), I.A. 6250/2021 (by the proposed D-4 u/O I
Rule 10 CPC), I.A. 7062/2021 (by the D-l u/O XXXIX R-4
CPC) and I.A.7691/2021 (by the plaintiff u/O XXXIX R-2A)
FRANKFINN ENTERTAINMENT COMPANY PVT. LTD.
..... Plaintiff
Through: Mr. Sanjeev Sindhwani, Senior
Advocate with Mr. Kapil Midha,
Ms. Pritika Juneja and Ms. Versha
Singh, Advocates
Versus
UNISYS INFOSOLUTIONS PVT. LTD. & ORS. .....Defendants
Through: Mr. Asutosh Lohia, Mr. Rohan
Dewan and Ms.Shraddha
Bhargava, Advocates for D-1
Mr. Arjun Natarajan, Mr. Mayank
Sapra and Ms. Lakshmi Kant
Srivastava, Advocates for D-2
Mr. Aditya Gupta and Ms.Aishwarya
Kane and Mr. Raunaq Kamath,
Advocates for D-3
Mr. Sagar Chandra, Ms. Sakshi
Pande and Ms. Urvashi Garg,
Advocates for applicant/proposed
D-4 in I.A. 6250/2021
Signature Not Verified
CS (COMM) 192/2021 Page 1 of 27
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
1. This order will dispose of five applications, namely, (i)
I.A.5727/2021 filed by the plaintiff under Order XXXIX Rules 1 & 2
CPC, (ii) I.A.6086/2021 filed by the plaintiff under Order XXXIX R-2A
CPC, (iii) I.A.7691/2021 filed by the plaintiff under Order XXXIX R-2A
CPC, (iv) I.A.7062/2021 filed by the defendant No.1 under Order
XXXIX Rule 4 CPC, and (v) I.A.6250/2021 filed by the applicant/Indya
Records and Films Private Limited (i.e., proposed defendant No.4) under
Order I Rule 10 CPC for impleadment.
2. Before proceeding further, a few facts may be noted. The plaintiff
is an integrated Media and Entertainment Company and is a part of a
Group Company division, namely, „Frankfinn Institute of Air Hostess
Training‟, which is a reputed organization, engaged in the field of
imparting trainings in the field of Aviation, Hospitality, Travel
Management and Customer Services. It claims to have set up the largest
network of „State of the Art‟ Cent res in India and built a formidable
reputation for quality training, earning several awards. Since 2007, it has
also entered the arena of music and had its first home entertainment
release. It has also produced a movie named, "SAT SRI AKAL", which
was released in the year 2008 in theatres and later, on VCD/DVD and
thereafter, on Netflix. Thus, over a period of time, the plaintiff has also
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
established a name in the field of religious preaching, music and home
entertainment and claims to have emerged as a leading player in Shabad
Gurbani videos and audios.
3. Mr. Sanjeev Sindhwani, learned senior counsel for the plaintiff,
submitted that the defendant No.3/Google LLC is an online video sharing
platform, allowing users to upload, view, rate, share, etc., videos and
create channels for uploading various contents. The defendant No.2-
M/s.Indya Records, through its proprietor Mr.Kanwal Deep Kohli,
created a YouTube channel, initially called, „Divine Amrit Bani‟ for and
on behalf of the plaintiff. The content for uploading on the said channel
was provided solely by the plaintiff. The YouTube channel was renamed
"Shabad Kirtan Gurbani - Divine Amrit Bani" having URL
www.youtube.com/user/divineamritbani (hereinafter referred to as the
"Suit Channel"), and is available on the platform of defendant No.3.
4. According to the plaintiff, the defendant No.2 used to manage the
Suit Channel for the plaintiff and there was no doubt about the ownership
of the channel vesting with the plaintiff. However, the defendant No.1 has
unlawfully started asserting ownership rights in respect of the Suit
Channel, on the basis of some arrangement with the defendant No.2,
which was also only to manage the Suit Channel. This was evident from
the „About Section‟, which showed the plaintiff as the rightful owner and
the employees of the plaintiff as the „Content Creation/A&R Head‟ and
„Creative Consultant/Visualizer‟. The contact numbers and emails IDs
displayed thereon also belonged to the plaintiff. The defendant No.1 was,
however, shown only as the „Digital Partner‟. There were other features
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
on the Suit Channel, such as, the „Join Us At Facebook‟ section, which
led the users to the Facebook Account owned and operated by the
plaintiff.
5. The defendant No.1 received the Username/Email ID and
Password from Mr.Kanwal Deep Kohli, proprietor of the defendant No.2,
only in order to manage the said Suit Channel and for purposes of
exploitation of the plaintiff‟s content and the sharing of the ID and
password was not a transfer of ownership. It is also the contention of the
learned senior counsel for the plaintiff that the arrangement with the
defendant No.2, when the Suit Channel was created in the year 2012, was
of revenue sharing in the proportion of 60:40 between the plaintiff and
the defendant No.2 (Clause 3.1 of Document No.17 of plaintiff). When
the management came into the hands of the defendant No.1, a similar
revenue sharing arrangement was entered into between them on 18th June,
2015 (Document No.11 of the plaintiff) and upon expiry of the aforesaid
Agreement, the plaintiff executed another Content License Agreement
(for short, "CLA") on 26th February, 2019, according to which, revenue
was to be shared in the proportion of 70:30.
6. Thus, the defendant No.1 was also obligated to disclose to the
plaintiff the earnings through monetizing of the plaintiff‟s Suit Channel.
It was submitted that once the CLA dated 26th December, 2017 was not
renewed in January, 2021, the defendant No.1 continued to deduct 30%
of the total revenue earned, which it was not entitled to do. Furthermore,
on 19th April, 2021, the defendant No.1 mala fidely removed all the
content and 1348 videos of the plaintiff from the Suit Channel. Pursuant
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
to the orders of this court, the defendant No.1 restored only 1279 videos.
However, 69 high performing videos of the plaintiff have still not been
uploaded. Thus, the defendant No.1 was in contempt of the orders of this
court.
7. It was further submitted that the defendant No.1 changed the
recovery email address of the Suit Channel and the log-in credentials,
including passwords, replacing them with „dual-authentication‟, whereby
its Director added his mobile number, making it impossible for the
plaintiff to access its own channel. Learned senior counsel stressed that
this was completely mala fide in view of the fact that in several emails,
the defendant No.1 has categorically admitted that the said Suit Channel
belonged to the plaintiff, but slowly started, first claiming that it belonged
to YouTube and thereafter, claimed that it belonged to the defendant
No.2, and which stood transferred by him to the company named
M/s.Indya Records and Films Private Limited, which was a Joint Venture
between the defendant No.1 and the defendant No.2.
8. In this light, learned senior counsel submitted, that the proposed
defendant No.4-M/s. Indya Records and Films Private Limited, was not a
necessary and proper party to the present suit, inasmuch as there is no
document to suggest that the said Suit Channel had ever been transferred
to the proposed defendant No.4/applicant, as the documents placed on the
record by the defendant No.1 at pages 89, 98, 108, 112, 124, 131 and 158,
reflected that between 2013 to 2019, the assets of M/s. Indya Records and
Films Private Limited were nil. If the proposed defendant No.4 had no
assets, nothing could have been transferred to the defendant No.1 through
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
the Joint Venture Agreement (for short, "JVA").
9. It was further submitted by learned senior counsel for the plaintiff
that the defendant No.1 has its own YouTube channel by the name "Sikh
Ratnavali", which was created on 29th November, 2010, which had
6,11,000 subscribers as on 19th August, 2021, with only 1069 videos on
the said channel whereas, in contrast, the plaintiff‟s channel had around
1.3 million subscribers. Again, the action of the defendant No.2 had
caused financial loss to the plaintiff as, after having uploaded the videos
of the plaintiff pursuant to court orders, through the Content Management
Service (for short, "CMS") system, the defendant No.1 was earning
revenue that was generated also when somebody else posted the content
of the plaintiff, while, at the same time, due to the very system, the
plaintiff was prevented from uploading its own content on any other
channel, including the channel "Shabad Kirtan Gurbani - Divine Bani".
Learned senior counsel submitted that the revenues had plummeted from
Rs.26.36 lakhs in October to December, 2020 to Rs.5.83 lakhs in April to
June, 2021 due to the acts of the defendant No.1.
10. To claim that the plaintiff had its own channel by the name of
"Shabad Kirtan Gurbani- Divine Bani", was misleading, as between
2011 and 2020, no new video had been uploaded on the said channel and
the same had been used only to provide links of the videos available on
"Shabad Kirtan Gurbani-Divine Amrit Bani" i.e., the Suit Channel. In
any case, on account of the CMS system, put in place by the defendant
No.1, any attempt to upload videos even on that channel, was blocked.
Thus, the plaintiff having itself created the content was now completely
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
stopped from using that content on YouTube because they were being
uploaded on the Suit Channel, which was being managed by the
defendant No.1, who was also knocking off complete revenues, without
disclosing the details or sharing the revenue with the plaintiff, despite the
court‟s directions and was thus in contempt of the orders of this Court.
11. Mr. Sagar Chandra, learned counsel for the defendant
No.4/applicant in I.A.6250/2021, submitted that this suit essentially
related to the ownership of the Suit Channel. There is no dispute that on
17th December, 2011, the defendant No.2 had created the channel. The
applicant does not question the arrangement between the plaintiff and the
defendant No.2, but on 31st May, 2013, a JVA was signed between the
Director of the defendant No.1 and the defendant No.2 as a consequence
whereof, the applicant was created. Upon the creation of the applicant,
the proprietorship firm of the defendant No.2 ceased to exist and was
merged with the applicant. All assets were transferred to it. Therefore, the
participation of the applicant in the suit was most essential as the Court
would have to return a finding on whether the Suit Channel was owned
by the defendant No.2 and once it concluded that it was owned by the
defendant No.2, then in view of the JVA, it would become the asset of the
applicant. The Suit Channel was given to the defendant No.1 only to
manage.
12. Learned counsel further pointed out that even as per the documents
of the plaintiff, after the merger of the proprietorship concern with the
company as a consequence of the JVA, the defendant No.2 had informed
the plaintiff through email in October, 2014 and the plaintiff had also
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
raised an invoice on the applicant dated 13th August, 2014. It is claimed
that the defendant No.2 had transferred the brand name „IR Amrit Bani‟ to
the applicant. Thus, the applicant was to be impleaded as a necessary
party to the suit, whereas the defendant No.2 could be deleted. Reliance
has been placed on decisions in Pankajbhai Rameshbhai vs. Jethabhai
Kalabhai Zalavadiya (2017) 9 SCC 700, State of UP vs. Ram Sukhi
Devi (2005) 9 SCC 733 and Khaja Abdul Khader vs. Mahabub Saheb &
others, AIR 1979 AP 152.
13. Mr. Asutosh Lohia, learned counsel for the defendant No.1,
submitting in respect of I.A.5727/2021 under Order XXXIX Rules 1 & 2
CPC and I.A.7062/2021 under Order XXXIX Rule 4 CPC, sought to
explain that the creation of the Suit Channel was akin to the setting up of
an exclusive showroom. It was his case that once the agreement for
posting the contents on the channel came to an end, the channel would
continue just as in the case of an exclusive showroom for a product, such
as, shoes, clothing, etc., once the agreement comes to an end, the brand
moves out, but the premises remain with the owner. It was submitted that
the content alone was owned by the plaintiff. The Suit Channel was
created by the defendant No.2, who created the email ID i.e.,
[email protected], and that ID exclusively belonged to the
defendant No.2, which he had shared with the defendant No.1 along with
log-in credentials, which he had never done with the plaintiff.
14. It was submitted that in order to help monetize the contents of the
plaintiff, an arrangement had been reached between the defendant No.2
and the defendant No.1. Thereafter, Mr. Kanwal Deep Kohli, the
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
proprietor of defendant No.2 and the Director of the defendant No.1
entered into a JVA and created an entity called Indya Records and Films
Private Limited in which the defendant No.1 had 79% stake and the
defendant No.2 had 21%. All assets of Mr. Kanwal Deep Kohli in his
proprietorship firm, defendant No.2/M/s.Indya Records, stood vested in
Indya Records and Films Pvt. Ltd. Thus, it was the defendant No.1 that
was the owner of the Suit Channel. According to the learned counsel,
there is no document to show that Mr. Kanwal Deep Kohli, the proprietor
of defendant No.2 had, at any point of time, assigned the Suit Channel to
the plaintiff, whereas it is specifically so assigned in the JVA.
15. As regards the CMS Account, it was on request of the plaintiff to
help increase monetizing the content of the plaintiff that the defendant
No.1 wrote to YouTube to add the Suit Channel to the CMS Account of
the defendant No.1, which had resulted in huge increase in the viewership
of the plaintiff‟s content.
16. As regards access to the Password and the email ID to gain access
to the Suit Channel, it could not be given to the plaintiff since the Suit
Channel did not belong to it. Had the management alone been with the
defendant No.1, there was no occasion for handing over the exclusive and
absolute control to the defendant No.1 and it would have been an
arrangement of joint access instead.
17. It was submitted that with regard to the revenues, the defendant
No.1 had made payments upto March, 2021, even before the filing of the
suit. Since there was a copyright issue, therefore, the defendant No.1 had
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
already informed the plaintiff on 24th March, 2021 that if the CLA was
not renewed, it would be taking down and deleting the videos. The
defendant No.1 had no back-up available and it was for the plaintiff to
have provided the original content. Reliance has been placed on the CLA
in this regard. However, mala fidely, the plaintiff was shifting the
goalpost with every hearing and alleging contempt. It was urged that the
allegations of violations of court orders be dismissed.
18. It was also submitted by learned counsel that the defendant No.1
had acted in strict accordance with the CLA dated 26th December 2017,
as the content had to be returned once the license came to an end, specific
clauses being Clauses 1.1, 1.2 and 1.3. It was urged that the plaintiffs had
made misleading averments in the court, and were benefitted with the
interim order dated 3rd June, 2021. Thereafter, they had come back to the
court wanting an injunction against the defendant No.1 from uploading
videos of others; then the demand was that the „community page‟ has not
been restored; and then, an allegation was raised that 69 videos have not
been restored.
19. Learned counsel further submitted that the „two-factor
authentication‟ need arose due to the purchase of the domain "Indya
Records" by the plaintiff. Mr. Kanwal Deep Kohli, the proprietor
defendant No.2 had inadvertently not renewed the domain name.
Thereafter, the plaintiff had attempted to hack into the YouTube channel,
by misusing the email ID of the defendant No.1 [defendants‟ Document
No.001, pages 388 to 390]. None of these emails were brought to the
notice of the court with mala fide intentions by the plaintiff.
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
20. In the circumstances, no orders restraining the defendant No.1 from
running the Suit Channel could be passed. Rather the defendant No.1
should be allowed to run it as the owner without the need to upload the
plaintiff‟s contents or share revenue with it as the CLA had terminated by
efflux of time.
21. In respect of I.A.6086/2021 filed by the plaintiff under Order
XXXIX Rule 2A CPC, it was submitted that 1279 videos have been
uploaded, but a „community post‟ once deleted cannot be restored as they
are „organic‟ and not „created content‟. Therefore, once the 1279 videos
were re-uploaded, which alone were in existence on 18th April, 2019, the
order had been complied with and the contempt application was liable to
be dismissed.
22. As regards I.A.7691/2021 filed by the plaintiff also under Order
XXXIX Rule 2A CPC, Mr. Lohia, learned counsel for the defendant
No.1, submitted that no disobedience has been disclosed. The plaintiff
has admitted the restoration of 1279 videos. With regard to 69 videos, the
plaintiff had been able to supply only 48 videos. They then had sought the
details of the remaining 21 videos from the defendant No.1, who would
not have any such videos in its possession. So, it was the fault of the
plaintiff if they had not kept any back-up. New content was also sent by
the plaintiff for uploading and directions were sought to permit the
plaintiff to "run" and "manage" the Suit Channel. Thus, by means of the
application, the original prayers have been expanded. It was another
matter that the court, vide order dated 16th July, 2021 had declined to
allow new content, and rightly so, as the court could not impose
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
contractual obligations on parties or extend a terminated agreement, or
novate the contract between them. Thus, no such plea could be granted.
Another new relief claimed was for de-linking from the CMS system, in
order to permit the plaintiff to push their own channel, though such a case
has not even been pleaded in the suit. Thus, this application too was liable
to be dismissed.
23. Reliance has been placed on the decisions in Salman Khurshid vs.
Delhi Public School Society, 2018 SCC Online Del 9382, S.P
Chengalavaraya Naidu (Dead) by L.Rs. Vs. Jagannath (Dead) by L.Rs.
and Ors. (1994) 1 SCC 1, State of Uttar Pradesh and Ors. Vs. Ram
Sukhi Devi, 2004 SCC Online SC 1264, Jayesh Kanaiya Lal Shukla and
Ors. Vs. RFCL Ltd. and Ors., 2010 SCC Online Del, Punjab National
Bank Vs. Iqbal Ahmad & Ors., 2003 SCC Online Del 1060 and Mittal
Electronics Vs. Sujata Home Appliances (P) Ltd. and Ors. [Order dated
7th February, 2020 in CS(COMM) 60/2020] to substantiate these
submissions.
24. Finally, it was submitted that the plaintiff has not impleaded the
proper party and thus, the applications were all liable to be dismissed.
25. Mr. Arjun Natarajan, learned counsel for the defendant No.2,
submitted that the defendant No.2 was not making submissions in an
adversarial capacity, but was only seeking to clarify the position.
Learned counsel stated that on 17th December, 2011, Mr. Kanwal Deep
Kohli, the proprietor defendant No.2 had entered into an agreement with
the plaintiff and by the end of January, 2012, a channel was created by
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
Mr. Kanwal Deep Kohli with his user ID and password. He was no longer
interested in the said YouTube channel. No relief had been sought
against the defendant No.2, which was why it had even sought deletion
from the array of the parties on 1st June, 2021. However, learned counsel
submitted that in view of the allegations levelled by the plaintiff and the
defendant No.1 against the defendant No.2, he felt obliged to set the
record straight.
26. Reliance has been placed on paras No.3 to 5 of the written
statement of the defendant No.2 to submit that the relationship of the
plaintiff and Mr. Kanwal Deep Kohli is reflected in Document No.17 of
the plaintiff‟s Documents, being the License Agreement for Internet
Streaming Rights dated 17th December, 2011, that granted non-exclusive
rights, which rights included the right to license, modify/take excerpts,
delete, etc., for uploading it on third party platforms. The Agreement was
a consolidated and a self-contained agreement, superseding all previous
agreements including the one dated 10th June, 2008 and 2nd June, 2009
[Document No.17 of plaintiff]. There was no partnership between the
parties and nor was Mr. Kanwal Deep Kohli an employee of the plaintiff,
as claimed by the plaintiff. The Agreement was between two „principals‟
and the mere use of salutations, such as, „dear sir‟, in the emails, or the
use of „dutifully‟ in the written statement, was in no way a concession to
the claim of the plaintiff that Mr. Kanwal Deep Kohli was its employee.
27. It was further explained by the learned counsel that the defendant
No.2 sought the services of the defendant No.1, as problems due to
copyright strikes, because of the footage commonly used, was occurring
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
since 2011 despite much efforts put in by the defendant No.2 and the
plaintiff to overcome these problems, as explained in the written
statement. The defendant No.2 asked for and was given undertakings by
the plaintiff to overcome these issues and make the Suit Channel
lucrative. However, in order to benefit the plaintiff, Mr. Kanwal Deep
Kohli approached the defendant No.1 to use his CMS system, which was
why he shared the User ID and Password with the defendant No.1. This
resulted in increased viewership from 400 to 1300 in 30 days. Even in the
JVA (placed at page 106 of the defendants‟ documents), as per Clause 20,
both, the defendant No.1 and the defendant No.2 are recognized as
"independent contractors" and there was no fiduciary relationship
between the two, neither was there any agency. The User ID and
Password was given much before entering into the JVA and in „good
faith‟. Learned counsel submitted that Mr. Kanwal Deep Kohli was
troubled that after working for the benefit of all parties for 10 years, he
has been simply dragged into this litigation.
28. Mr. Aditya Gupta, learned counsel for the defendant No.3/Google
LLC, submitted that the plaintiff has sought directions to the defendant
No.3 to disclose payments to the defendant No.1 w.e.f. 2015, which was
an exceedingly vague prayer, which could not be complied with.
Similarly, the reference to "Sikh Ratnvali" in the prayer in I.A.5727/2021
without any reference in the plaint, was improper. The prayer of
disclosure of payments has been sought against the defendant No.3 and
the defendant No.1, but it could be appropriately given only to the
defendant No.1. There was no statutory right or otherwise to seek such
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
reliefs as claimed in prayers „g‟ and „h‟, as such reliefs cannot be sought
against the defendant No.3. It was submitted by the learned counsel that if
the plaintiff is found to be the user, it will automatically have the access
to all revenue details to which the defendant No.1 is now having access.
Nor can the defendant No.3 be asked to audit the accounts as such a
contractual right can be enforced only against the defendant No.1. It was
next submitted that once the court has directed the defendant No.1 to
submit all accounts, the reliefs in this regard claimed against the
defendant No.3 had become redundant. Finally, it was submitted that no
final relief at interim stage can be granted and therefore, the interim
application be dismissed. Reliance has been placed by learned counsel for
the defendant No.3 on decisions in Bank of Maharashtra vs. Race
Shipping & Transport Co. Pvt. Ltd. (1995) 3 SCC 257, State of UP v.
Visheshwar (1995) Supp (3) SCC 590, Union of India v. Modiluft Ltd.,
(2003) 6 SCC 65, State of U.P. v. Ram Sukhi Devi, (2005) 9 SCC 733,
Mehul Mahendra Thakkar v. Meena Mehul Thakkar, (2009) 14 SCC
48, in support of these submissions.
29. In rejoinder, learned senior counsel for the plaintiff submitted that
Mr. Kanwal Deep Kohli had never claimed that he was the owner of the
Suit Channel and that the JVA had transferred it to the defendant No.1 (or
the applicant). Reliance has been placed on the latest email sent by Mr.
Kanwal Deep Kohli to the plaintiff on 16th April, 2021, to show that the
defendant No.2 was not claiming ownership rights in respect of the Suit
Channel. Thus, the claim of the defendant No.1 that the Suit Channel was
the asset of the defendant No.2 was not affirmed by the defendant No.2. It
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
was submitted that interestingly, the balance-sheets of the applicant for
2014, as filed on the record by the defendant No.1 (at page No.124,
Document No.001 of defendants), do not reflect in the list of the assets,
the assets that came to the applicant from the defendant No.2. If
everything was „zero‟, there was no basis for the claim of either the
applicant or the defendant No.1 that the Suit Channel constituted their
asset.
30. Furthermore, the entire set of documents relating to the applicant
seems to be only a story that had been spun as despite being in existence
for about 9 years, after the creation of the Suit Channel, and 7 years after
the JVA, the applicant does not seem to have exploited or got any benefit
from the Suit Channel, as not even a single payment seems to have been
transferred to it. No information regarding the creation of the JVA nor its
documents have been forwarded by either the defendant No.1 or the
defendant No.2 to the plaintiff and there is nothing to show that the
plaintiff was informed of its existence. The communication sent to the
plaintiff only referred to the account of the defendant‟s firm ceasing, but
such an intimation cannot be read as an information of the merger of the
proprietorship firm with the company. Not even Mr. Kanwal Deep Kohli
had informed the plaintiff that his proprietorship/defendant No. 2 had
come to an end. In any case, invoice (at page 206 of plaintiff‟s document)
had been raised when the plaintiff and the defendants were on good
terms. Moreover, it refers to the Agreement dated 17th December, 2011
between the plaintiff and the defendant No.2 and therefore, the change in
the name in the invoice would hardly have indicated merger. Thus, the
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
applicant was not a necessary and proper party to the suit.
31. The opposition by the defendant No.3 was found to be strange by
the learned senior counsel for the plaintiff inasmuch as the argument
appeared to him to have been made in favour of the defendant No.1.
Specific reliefs had been sought against the defendant No.3, who was in
the possession of the details of the financial transactions. The defendant
No.3 has not been asked to render the accounts, but only to disclose them,
which it cannot refuse.
32. YouTube had also recognized the plaintiff as the owner of the Suit
Channel, as it got the „silver button‟ for the Suit Channel and not for the
content. This „silver button‟ had been initially retained by the defendant
No.1, but since it mentioned "Shabad Kirtan Gurbani-Divine Amrit
Bani", the same was voluntarily handed over by the defendant No.1 to
the plaintiff. If the Suit Channel belonged to the defendant No.1, there
was no occasion for the handing over of the „silver button‟. In fact, the
defendant No.1 has taken three conflicting stands, firstly, that the Suit
Channel belonged to YouTube; that it belonged to the defendant No.1;
and that it belonged to the applicant/proposed defendant No.4. This
showed the hollowness of its claims.
33. It was submitted that the Suit Channel was for the plaintiff and
only the plaintiff‟s content had to be uploaded exclusively on the Suit
Channel. The license related to the exclusive content on the Suit Channel,
but it was non-exclusive to permit the defendant No.1 to operate other
channels. There was no business sense in the defendant No.1 after having
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
developed "Sikh Ratnvali", as his exclusive channel on 29th November,
2010, to have created competition for himself by creating another channel
and then getting into an arrangement where he would receive only 30%
share in the earnings and permitting the plaintiff to receive 70%, when it
had an option to retain 100% of business earnings from it.
34. According to learned senior counsel, all these facts establish only
one thing, that the Suit Channel was the property of the plaintiff and no
one except the plaintiff could stake ownership over the same. It was
submitted that the defendant No.1 not being the owner of the Suit
Channel was least concerned if the Suit Channel died, despite earning
about Rs.9 lakhs per month from it. Therefore, the defendant No.1 be
directed to handover the User ID and Password to the plaintiff. The
plaintiff would keep the accounts of the earnings till the disposal of the
suit. Thus, it was submitted that the application for impleadment be
dismissed, and the interim orders be passed in favour of the plaintiff and
the defendant No.1 be punished for wanton disobedience of court orders.
DISCUSSION
35. From the trend of arguments advanced before this Court, it is clear
that the bone of contention is the ownership of the Suit Channel. The
defendant No.1, through the applicant/Indya Records and Films Private
Limited, claims to be the owner of the Suit Channel. The applicant states
in the application that it is a necessary party to this suit as, on the
determination of the ownership, the Suit Channel would become their
asset, whereas the plaintiff has asserted that the Suit Channel was created
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
for it and was initially managed by Mr. Kanwal Deep Kohli, proprietor of
defendant No.2, who, later on, engaged the services of the defendant No.1
to manage the Suit Channel and for that purpose, created a JVA. Mr.
Kanwal Deep Kohli has taken the stand that he had created the Suit
Channel. Strangely, while he has not spelt out in so many words that he is
the owner of the Suit Channel, he has declared that he has no interest in
it.
36. The claim of the applicant is that the assets of Mr. Kanwal Deep
Kohli in his proprietorship firm, namely, defendant No.2/M/s. Indya
Records had been transferred to it under the JVA. However, there is
absolutely no document that sets out the Suit Channel as an asset of the
the defendant No.2 or Mr. Kanwal Deep Kohli‟s own assets and which
stood transferred to the applicant when it was created through the JVA.
Moreover, there is not a whisper of any money coming to the share of the
JVA entity or its having asserted any such claim since it came into
existence seven years ago.
37. The JVA describes the defendant No.2/Indya Records as being in
the business of production, distribution, marketing, and sale of content
and the defendant No.1 also being in the same field. Interestingly, they
agreed to have a Joint Venture for production, procurement, exploitation,
production and acquisition of films, audio and audio-visual content,
especially created for the digital platforms, etc.. In the JVA, „content‟ has
been defined, but there is no reference whatsoever to a „YouTube
channel‟. Prima facie, therefore, it is clear that the Suit Channel was not
part of the JVA. The Suit Channel stood created in the year 2012 while
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
the JVA was entered into in 2013. Therefore, it is reasonable to assume
that had the Suit Channel been part of the assets of defendant No.2, which
merged with the applicant/entity pursuant to the JVA, there would have
been no reason why it would not have found mention in the document.
The Agreement further records that the company was to "acquire content"
and then license it to the defendant No.1 for commercial exploitation on a
revenue-sharing basis. There is reference to platform owners, but not a
whisper on the Suit Channel, or any YouTube channel for that matter.
38. It is thus more than apparent, that the applicant has failed to
disclose any right or interest that would make it a proper or necessary
party to this suit.
39. Coming to the relationship between the plaintiff and Mr. Kanwal
Deep Kohli, the proprietor of defendant No.2, the written statement of the
defendant No.2 reveals that he was familiar with the work of the plaintiff,
which was the creation of Gurbani and Shabad Kirtan videos, and being
impressed with the quality of their work, felt interested to help its
commercial exploitation. To this end, it appears that in 2011, the
defendant No.2 entered into an agreement for streaming the plaintiff‟s
content through internet. The defendant No.2 was to manage the
streaming on behalf of the plaintiff and the revenue was to be shared. The
defendant No.2 had uploaded the videos through third parties, but that
created several copyright issues. He then conceived the idea of creating a
dedicated Gurbani channel for optimum exploitation. Mr. Kanwal Deep
Kohli claims to have conceived the name for the channel and also claims
to have purchased the URL www.amritbani.com (Document No.2 of
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
defendant No.2). As on date, admittedly, the plaintiff having purchased
the domain name is its owner. He requested another person, namely, Shri
Bobby Singh (Shri Harpreet Singh Sahni), who was a freelancer, to
actually create the YouTube channel, as it required technical know-how.
He created the „gmail ID‟, furnishing his firm‟s initials i.e., "IR". He had
also explained that the sharing of the User ID and Password with the
defendant No.1 was only in order to facilitate and manage the uploading
of the content of the plaintiff. In other words, the defendant No.1 had not
been transferred any ownership rights by Mr. Kanwal Deep Kohli, who
created the Suit Channel by registering the domain name.
40. YouTube was launched as a Consumer Media Company, which
allowed people to watch, upload and share personal video clips at
www.youtube.com. Of course, now, YouTube is owned by Google LLC
(defendant No.3 herein). The basic function of the YouTube website is to
provide a digital platform for it‟s "users" to "upload" and "view" video
clips free of charge. The "users", before uploading a video, must register
and create an account with the website and accept its terms of use. The
"users" can sign into their account and select a video to upload from their
personal computer, mobile phone or other devices, and instruct the
YouTube system to upload the video by clicking on a virtual upload
„button‟.
41. From the facts of the present case, it is clear that it was Mr. Kanwal
Deep Kohli , proprietor of defendant No.2, who had completed the
registration process for creating the Suit Channel and opening an account
with YouTube and thus was its "user", but admittedly, "used" it only on
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
behalf of the plaintiff. But he has not claimed to be the "owner" because
it is apparent that the Suit Channel is only a means for uploading the
content, which admittedly belonged to the plaintiff. There is no doubt
that even in the Agreement between the plaintiff and the defendant No.1,
the Suit Channel was intended only to facilitate the uploading of the
content provided by the plaintiff. The initial communications between the
parties, as referred to during the arguments, establish that all those
concerned understood and accepted the position that the Suit Channel was
intended for use only to upload the plaintiff‟s content and nothing else. If
any ownership is to be ascribed, then upon a prima facie view, keeping in
mind the purpose of the Suit Channel, that right of exclusive use available
to an owner would be that of the plaintiff and no one else.
42. Admittedly, the defendant No.2 and the defendant No.1 managed
the Suit Channel, in that, they were the ones who selected the videos and
uploaded them from their devices by clicking on a virtual upload „button‟
and dealt with all other issues, etc., including the monetization of the
content and copyright violations. In lieu of its services, revenue was
shared between the plaintiff and the defendant No.1 i.e., 70% going to the
plaintiff and 30% going to the defendant No.1 as per the agreements
between them. Had the Suit Channel been the exclusive property of the
defendant No.1, there was no logic in taking the smaller share as the
Agreements were with the plaintiff on a „non-exclusive basis‟, whereas
the Suit Channel was to be „exclusively‟ used for the plaintiff‟s content.
The analogy of an exclusive showroom is not apposite. That analogy fits
better with the E-commerce platforms, such as, Amazon, Flipkart, etc.,
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
where those platforms permit various manufacturers and
distributors/retailers to offer their products for sale. The Suit Channel
having an absolutely different purpose would rather be more similar to a
company-owned exclusive showroom, owning the premises as well as the
stocks.
43. The defendant No.1 had no right, therefore, to pull down the videos
of the plaintiff after the last Agreement came to an end because the
uploading of the videos of the plaintiff on its own behalf could not
conceivably result in copyright violations. This argument is a specious
one and only a feeble attempt to justify an act that was unwarranted.
Similarly, so long as the Suit Channel was earning revenue, the defendant
No.1 was obligated to disclose the revenues to the plaintiff and could not
have staked claim to the entire revenue as it has done. Unfortunately,
despite the directions of this court to the defendant No.1 to file the
complete accounts with the plaintiff, the defendant No.1 has not complied
with the same. It is on account of the failure of the defendant No.1 to do
so that directions will have to be issued to the defendant No.3/Google
LLC to file before the court the earnings of the Suit Channel from 16th
April, 2021 till date. Defendant No.1 was also obligated to hand over the
User ID and Password to the plaintiff once the Agreement to manage the
Suit Channel had terminated. The User ID and Password was hand over
by Mr. Kanwal Deep Kohli, the proprietor of defendant No.2 to defendant
No.1, not as "assets" but only to "manage" the Suit Channel on behalf of
the plaintiff. The "user" created the domain. That "user" was not the
defendant No.1, but Mr. Kanwal Deep Kohli, who has declared it was
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
created for the plaintiff and he has no interest in it. It is the plaintiff who
stands in the position as the "user" and is entitled to the custody of the ID
and Password.
44. The plaintiff has thus disclosed a prima facie case in its favour as
the Suit Channel was created for uploading only its contents. The
„balance of convenience‟ lies with the plaintiff as the defendant No.1 has
failed to disclose any basis whatsoever for claiming the ownership of the
Suit Channel, as it is not reflected as an asset either with the erstwhile
firm of the defendant No.1 or the entity created by the JVA being the
applicant before this court. On the other hand, even defendant No.2 has
clarified unequivocally that the ID and Password had been handed over to
defendant No.1 even before the JVA, only to manage the Suit Channel.
The action taken by the defendant No.1 has already impacted the interests
of the plaintiff, as learned senior counsel for the plaintiff pointed out that
the subscriber base would have to be built up again on account of the
break in the services provided through the Suit Channel and further
because the defendant No.1 despite having his own YouTube channel for
uploading whatever material it was desirous of, chose to upload third
party videos on the Suit Channel that was created exclusively for the
plaintiff‟s content. As to the question of „irreparable loss and injury‟, the
impact on viewership, the loss of goodwill and viewer satisfaction cannot
be measured only in monetary terms.
45. The court cannot agree with the contention raised by the defendant
No.1 that the plaintiff has been expanding the reliefs claimed, inasmuch
as the modifications that have been sought on different dates, and which
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
have been granted by the court, were a result of the actions of the
defendant No.1, including the blocking of the plaintiff from uploading its
own content on another YouTube channel belonging to it, through the
CMS system in the name of the defendant No.1.
46. In light of the foregoing discussions:
(a) The application being I.A.7062/2021, filed by the defendant
No.1 under Order XXXIX Rule 4 CPC seeking setting aside/modification
of the ex parte ad interim injunction granted by this court vide order dated
20th April, 2021, is dismissed.
(b) I.A. 6086/2021 and I.A.7691/2021, both filed by the plaintiff
under Order XXXIX Rule 2A CPC, are disposed of requiring the
defendant No.1 to file an affidavit, (i) disclosing the restoration of the
entire content of the plaintiff in the Suit Channel, (ii) affirming that the
Username, Password and other details of the Suit Channel have been
handed over to the plaintiff.
The affidavit be filed within a week of this order, failing which
further action, as contemplated under law and Order XXXIX Rule 2A
CPC, will be initiated against the defendant No.1 through its
Directors/Officers responsible for compliance of this order.
(c) I.A.5727/2021 filed by the plaintiff under Order XXXIX Rules
1 & 2 CPC is disposed of, further restraining the defendant No.1, its
directors, promoters, as the case may be, servants, agents, franchisees or
anyone acting for and, on its behalf, from removing, copying, destroying,
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
transferring, or deleting the plaintiff's content on the Suit Channel or
uploading third party videos on the Suit Channel.
(d) The defendant No.1 shall also disclose on an affidavit the
revenues earned since the year 2015 till date. The defendant No.1 shall
further disclose on an affidavit the revenue that has been transferred by it
to the plaintiff till date, including after the expiry of the Agreement
between the two and shall continue to disclose on an affidavit the up-to-
date revenue collected from the Suit Channel.
If within one week of this order, the defendant No.1 fails to
disclose these revenue details, the defendant No.3/Google LLC, on being
informed by the plaintiff about the same, shall do so within a week
thereafter.
(e) The participation of the applicant/Indya Records and Films
Private Limited in the suit neither appears to be proper nor necessary for
the just disposal of the suit. Accordingly, I.A. 6250/2021 filed by the
applicant under Order I Rule 10 CPC for its impleadment is dismissed.
47. All the five applications i.e., I.A.5727/2021, I.A.6086/2021
I.A.7691/2021, I.A.6250/2021 and I.A.7062/2021, are accordingly
disposed of.
48. It is made clear that nothing contained in this order shall be a
reflection on the merits of this case.
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
CS(COMM) 192/2021
49. List on 7th July, 2022 for framing of issues.
50. The order be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
MARCH 02, 2022
s
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:02.03.2022
12:12:27
