Madras High Court
A.M.Gopalan vs Eros International Media Limited on 19 August, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.08.2021
CORAM
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.S. No.739 of 2018
and
A.No.8478 of 2018
A.M.Gopalan,
Trading as
Sree Gokulam Movies,
No.66, Old No.356,
Arcot Road, Kodambakkam,
Chennai 600 024,
Rep. by Power Agent Mr.V.C.Praveen
.... Plaintiff
Versus
Eros International Media Limited,
9th Floor, Supreme Chambers,
Off Veer Desai Road,
Mumbai 400 053. ... Defendant
Prayer: Plaint under Order IV Rule 1 of Original Side Rules and Order
VII Rule 1 of CPC read with Sections 51, 55 and 62 of the Copyrights
Act, 1957 and the Copyright (Amendment) Act, 2012, praying for the
following:
a. A permanent injunction restraining the defendant their directors,
successors, servants, agents, employees, programmers, subordinates,
assigns, representatives, distributors, stockists, dealers and all other
persons claiming through or under them or howsoever otherwise, from
directly or indirectly in any manner from committing acts of passing off
and enabling others to pass off the plaintiff's title with respect to the
movie “Kayamkulam Kochunni” by displaying such works on the
defendant's website or other social media platforms, or from in any
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2
manner or other social media platforms, or from in any manner claiming
that the impugned movie originates from them, or in any other manner
whatsoever;
b. A permanent injunction restraining the defendants, jointly and
severally, their directors, successors, servants, agents, employees,
programmers, subordinates, assigns, representatives, distributors,
stockists, dealers and all other persons claiming through or under them or
howsoever otherwise from directly or indirectly in any manner copying,
reproducing, adapting, putting up for public display, or in any manner
infringing the plaintiff's copyrighted work in the promotional material,
trailers, or music videos, clips, or any portion or the entirety of the movie
“Kayakulam Kochunni” or in any other manner whatsoever;
c.A preliminary decree to be passed in favour of the plaintiff
directing the defendants to render account of profits made by use of the
plaintiff's copyrighted work with respect to the movie “Kayamkulam
Kochunni” or and a final decree be passed in favour of the plaintiff's for
the amount of profits thus found to have been made by the defendants,
after the latter have rendered accounts;
d. The defendant be ordered to pay to the plaintiff a sum of Rs.
5,00,00,000/- (Rupees Five Crores) as damages for the wrongful and
illegal activities amounting to the unauthorised use and infringement of
the plaintiff's copyrighted works with respect to the movie “Kayamkulam
Kochunni”;
e. The Defendant be ordered to pay to the Plaintiff's a sum of Rs.
2,00,00,000/- (Rupees Two Crores only) being the amount spent on
marketing the film with Defendant's banner;
f. for costs.
For Plaintiff : M/s.Chandini Pradeep
for Mr.Arun C.Mohan
For Defendant : Mr.Jayesh Dolia
for M/s.Aiyar & Dolia
https://www.mhc.tn.gov.in/judis/
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JUDGMENT
The suit for permanent injunction alleging infringement of
copyright and passing off, in respect of movie “ Kayakulam Kochunni”
(Malayalam). Consequential relief to render accounts and pay damages.
2.The plaint averment are: The plaintiff during the Month of
August 2017, started production of a Malayalam movie titled
“Kayakulam Kochunni” on an estimated budget of Rs. 50 crores. The
defendant during the month of July 2018 sought the distribution right of
the movie. After initial negotiation, a contract was circulated by the
defendant whereby the defendant would obtain the theatrical exploitation
right for a minimum guarantee amount of Rs. 17 crores plus GST. In
addition, the defendant was to pay an additional Rs 3 crores to the
plaintiff for the digital, audio and airborne rights. In pursuant to the said
agreement and to get a head start on promoting the film, the plaintiff
obliged the defendant’s request to allow for music videos and trailers to
be posted on the defendant’s website. In addition, the plaintiff also
allowed the defendant to use their banner “EROS” on all the trailers and
promotional materials.
3. 10 days prior to the proposed date of movie release, the
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defendant sought for reworking the existing agreement and severely
undercut the consideration payable to the plaintiff. It became apparent
after exchange of emails, that the defendant would no longer honor the
agreement between the parties and hence, notice to cease and desist letter
dated 25/08/2018 was sent to the defendant. The defendant replied on
21/09/2018 blatantly denying any consensus between them in respect of
theatrical distribution rights and digital audio and airborne right of the
said movie.
4.The plaintiff’s copyrighted content appeared on the
defendant’s website only because there was an agreement to that effect.
The reply of the defendant that there was no consensus about the
copyright is ludicrous statement. After exploiting the copyright of the
plaintiff in their website and promoting their presence in the Malayalam
movie field, the defendant is trying to strong arm the plaintiff into
submitting to an conconscionable contract with the defendant. As a
result, the plaintiff is forced to spend on reworking the existing music
videos, trailers and promotional materials so as to delete the defendant’s
banner “EROS”.
5.On receipt of the suit summons, the defendant had entered
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appearance, in the interim injunction application filed counter and this
court on 31.01.2019 disposed the interim injunction application
recording the statement of the defendant that they have deactivated the
songs concerned from the platform in question, disposed the
applications.
6.Thereafter, the defendant filed the written statement with 19
days delay. The delay was condoned and the written statement was taken
on file vide order dated 12.06.2019.
7.In the written statement, the maintainability of the suit
challenged. Pointing out absence of written agreement and want of
consensus ad idem between the parties, the suit was sought to be
dismissed. Further, referring a written agreement dated 07.07.2015 by
Divo Private Limited with EROS Digital FZ LLC, it was contended by
the defendant the suit is bad for non joinder of necessary party.
8.Based on the facts controvert in the pleading of the parties,
issues were framed and the suit was fixed for examination of witnesses
before the Additional Master II for recording evidence. The plaintiff was
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asked to file his proof affidavit in lieu of chief examination on or before
31.07.2019. The examination of witnesses on either side was supposed to
commence on 05.08.2019 and completed by 20.09.2019. The late date for
filing written arguments was fixed as 30.09.2019.
9. Since the plaintiff failed to complete the examination of
witness as per the case management schedule, this Court refixed the case
management hearing on cost of Rs.5000/- vide order dated 16.10.2019.
Accordingly, case management hearing was rescheduled for completion
of recording evidence by 20.11.2019. Then again, P.W.1 examination
itself could not be completed within the time fixed. Cross of P.W.1 was
partially done and the case was reverted back to the Court by Master for
refixation of case management hearing. Accordingly, on 07.01.2020, this
Court extended the time for examination of witnesses and directed the
parties to complete the examination of witnesses on either side and list
the matter before the Court on 24.02.2020. Thereafter also, the plaintiff
has not shown any interest to bring his witness for examination.
10. On 24.02.2020, when the matter was listed, this Court
passed the following order:
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“Despite extension of time for completing the
examination of witness, the parties could not adhere the time
frame. Hence, they seek for re-fixation of the time schedule.
2.Taking note of the reason given by the learned
counsels, the case management hearing is fixed as below:-
Continuation of PW-1 cross shall commence on
10.03.2020 and get completed by 20.03.2020.
3.The learned counsel appearing for the defendant
states that he has one witness for examination.
4.Proof affidavit of the said witness shall be filed in
the Registry on or before 24.03.2020 after serving copy to the
learned counsel appearing for the plaintiff.
5.Examination of DW1 witness shall commence on
30.03.2020 and get completed by 08.04.2020.
6. Post the matter before this Court for argument on
15.04.2020.”
11. From the notes of the Additional Master, this Court finds
that on 10.03.2020, plaintiff's witness was not present. Hence, adjourned
to 19.03.2020. On that day, the plaintiff counsel not present and
therefore, further adjourned to 20.03.2021. On that day, due to covid
notification, the plaintiff counsel as well as defendant counsel were not
present. The Master on 01.02.2021, listed the case and ordered the
matter to be posted before this Court.
12.Accordingly the suit was listed on 28.07.2021. After
hearing the counsels and on the request of the plaintiff, this Court posted
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the matter today (19.08.2021) for fixing fresh case management hearing.
It is unfortunate, the plaintiff could not assist the Court by furnishing the
date on which witness could be present. It is represented that the case
management hearing was filed in the Registry today morning. When
sufficient time was granted to inform the Court about the convenience of
the witness to come and depose, no attempt made to proceed with the
examination of witness.
13.The suit was instituted as a commercial dispute for claims
of copyright infringement and passing off. The Commercial Courts Act,
2015 enacted to adjudicate commercial disputes expeditiously had fixed
specific time limits for each stage of proceedings under this Act. While
so, the plaintiff having resorted to file the suit before the commercial
division of this court had miserably failed to adhere the time schedule
and had breached it all stages. The examination of witnesses which was
supposed to be completed by 20.09.2019 even after three extensions ( of
which one on payment of costs) did not proceed any further after cross
examination of PW-1 partly on witness 29.01.2020. The declaration of
covid -19 notification on 19.03.2020 cannot be an excuse to delay the
trial even after the lock-down substantially relaxed. Courts are
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functioning on hybrid mode without any inconvenience or impediment to
the litigants. Therefore, in view of non compliance of the case schedule
management fixed and re-fixed on more than two occasions, court
eschew the oral evidence so far recorded. Proceed with the merit of the
suit based on pleadings.
14.The suit under the Copyright Act is filed alleging breach of
the agreed terms. Admittedly, no written contract entered between the
parties. Only the email exchanged between them are relied to infer the
Terms of Agreement. Along with the plaint, 11 documents were filed.
Pending suit three more documents were permitted to file subject to
proof and relevancy. None of these documents indicates there was a
concluded contract between the parties in respect of exploitation of the
copyright in any manner whatsoever for a specific consideration. In the
plaint, it is a specifically stated by plaintiff that pending finalising finer
details of the agreement, they were in consensus with respect to the
compensation relating to the theatrical exploitation rights along with the
digital audio and airborne rights. Whereas in the written statement, the
above said averment is categorically denied. According to the defendant,
no consensus arrived between the parties regarding the terms and
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conditions. When there is no agreement or contract, no legal obligation to
perform can be imposed on the defendant.
15.Contracts in respect of exploitation of copyright is a
complex matter. It involves intangible right which is divisible both
vertically (theatrical, satellite, video, etc) and horizontally (music,
picture, languages, story, area etc) unless the finer details gets concluded,
the negotiations towards the final agreement cannot be deemed to a
concluded contract. Precisely for the said reason, the law under section
19(1) of the Copyright Act say, “ No assignment of the copyright in any
work shall be valid unless it is in writing signed by the assignor or by his
duly authorised agent”. In the instant case, no fact or circumstances is
available to infer an equitable assignment.
16.The email correspondences between the parties are purely in
the nature of negotiation. It only indicates that the parties were engaged
in dialogue to arrive at a conclusion. Since the negotiation has broken,
the copyright holder has come to the court for injunction relief and other
consequential relief. As far as the injunction relief is concern, pending
suit it is recorded in the interlocutory proceedings that the defendant has
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withdrawn the objectionable content from their website.
17.Any adjudication for other relief sought in the suit, the
content of the documents are necessarily to be proved through its author
or person conversant and competent to speak about it. The plaintiff in
this case has failed to marshal the witness within the time given to prove
the fact asserted in these emails.
18.Hence suit is dismissed with costs of Rs 5000/- payable to
the defendant. The connected application is closed.
19.08.2021
vri
DR.G.JAYACHANDRAN,J.
VRI
https://www.mhc.tn.gov.in/judis/
C.S.NO.739 OF 2018
and
A.No.8478 of 2018
19.08.2021
https://www.mhc.tn.gov.in/judis/
