Madras High Court
V. Shamsundar vs K.P. Ravichandran on 14 June, 2022
C.S.No. 474 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 14.06.2022
CORAM :
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.S.No. 474 of 2008
V. Shamsundar
Proprietor M/s.Dwarka Films
No.18/13, Loganathan Colony,
Mylapore, Chennai-600 004. ..Plaintiff
Versus
1. K.P. Ravichandran
Proprietor,
M/s. Movie Land
No. 59/60, Singanna Chetty Street,
Chintadripet,
Chennai - 600 002.
2. K.S. Gopalakrishnan
Proprietor Chitra Productions,
Karpagam Studios
No.82, Arcot Road,
Chennai- 600 093.
3. Gemini Colour Laboratory,
No.2, Vembuliamman Koil Street,
Virugambakkam,
Chennai-600 092. ..Defendants
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C.S.No. 474 of 2008
Prayer:
Civil Suit is filed under Section 55 of the Copy Right Act XI of 1957
read with Order IV Rule 1 of the Original Side Rules of this Court read with
Order VII Rule 1 of CPC., praying judgment and decree:-
(i) for a declaration of the plaintiff's sole and exclusive copyright for
distribution, exhibition and exploitation of the Tamil picture "Aathi
Parasakthi" in all versions and dimensions including television rights, video
transfusion rights, audio cassette (CD), DVD and VCD rights, satellite
transmission rights etc., throughout the world.
(ii) for a permanent injunction restraining the defendants from
infringing in any manner with the plaintiff's sole and exclusive copyright of
the Tamil film "Aathi Parasakthi".
(iii) for a mandatory injunction directing the first defendant to
withdraw all the CDs, DVDs, VCDs etc., produced, published and marketed
by him for sale and surrender them into Court.
(iv) to direct the defendants to render a true and proper account of the
realization made by the defendants by selling the CDs, DVDs, and VCDs of
the Tamil film "Aathi Parasakthi", and (v) for costs.
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C.S.No. 474 of 2008
For Plaintiff : Mr.T.Dhanasekaran
D1 : Suit Dismissed for default
as against D1 on 17.11.2008
For D2 and D3 : Set ex-parte on 04.08.2021
----
JUDGEMENT
This suit is filed (i) for declaration of the plaintiff's sole and exclusive
copyright for distribution, exhibition and exploitation of the Tamil picture
"Aathi Parasakthi" in all versions and dimensions including television rights,
video transfusion rights, audio cassette (CD), DVD and VCD rights, satellite
transmission rights etc., throughout the world, (ii) for a permanent injunction
restraining the defendants from infringing in any manner with the plaintiff's
sole and exclusive copyright of the Tamil film "Aathi Parasakthi", (iii) for a
mandatory injunction directing the first defendant to withdraw all the CDs,
DVDs, VCDs etc., produced, published and marketed by him for sale and
surrender them into Court, (iv) to direct the defendants to render a true and
proper account of the realization made by the defendants by selling the CDs,
DVDs, and VCDs of the Tamil film "Aathi Parasakthi", and (v) for costs.
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C.S.No. 474 of 2008
2. The case of the plaintiff is that a very popular Tamil movie "Aathi
Parasakthi" was produced and directed by the second defendant in or around
1975. The movie had a multi-star casting, Genini Ganesh, Muthuraman,
M.N.Nambiar, Surulirajan, S.V. Subbiah, S.V. Sahasranamam,
S.V.Rangarao and OAK Devar who were some of the very popular actors
who had leading roles in the said film. Jayalalitha, Padmini, Vanisri,
Rajashree and Varalakshmi completed the galaxy of stars and Sridevi acted
as a child star. All the songs were hit songs. The movie ran for more than
200 days in most of the 45 centres where it was screened. Subsequently, Sri
Raja Rajeshwari movies, a partnership firm entered into an agreement with
the second defendant on 10th of February, 1975, for the entire world negative
rights for the movie. The lease period was 99 years from that date. A sum of
Rs.30,000/- was paid by the assignee to the second defendant. The copy of
the agreement has been filed along with the plaint. The original had been
filed in a prior proceeding and hence, a certified copy is filed herewith.
Subsequently, clause 4 shows that the entire world negative rights vest with
the assignee. As per Clause 5 of the deed, the assignor/second defendant
transferred the negatives, both picture and sound in favour of the assignee.
All the Royalty payable to the assignor over the sales of gramophone records
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C.S.No. 474 of 2008
of the picture, as well as the Royalty payable for the broadcast of songs and
sound track, were also assigned to the assignee irrevocably under Clause 6 of
the agreement. Thereafter, the second defendant had to inform about this
agreement to the 3rd defendant, the Central Board of Films Censors etc. to
enable the assignee to exploit the film in future. Under clause 9, the assignor
guaranteed that the picture would not be distributed, exhibited or exploited in
any other version or versions in any dimension during the period of lease.
3. It is the further case of the plaintiff that the second defendant
executed various other documents to perfect the rights of the assignee. The
Film Finance Corporation Limited, the South Indian Film Chamber of
Commerce, Saraswathi Stores, Gemini Colour Laboratories (3rd defendant
herein) and the Censor Board were informed about the assignment. Sree
Raja Rajeswari Movies, was authorized by the second defendant to apply for
re-censor certificate. Saraswathi stores (the recording company) and
S.I.F.C.C. were instructed to send the Royalty amounts to the assignee. The
3rd defendant acknowledged the transfer of rights. Subsequently, the name
of Sree Raja Rajeswari Movies was changed to Dwaraka Films on
30.03.1976 under an addenda to the original partnership deed. The place of
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C.S.No. 474 of 2008
business was shifted to No.30, Meeran Sahib Street, Chennai-2. The
partnership deed was dissolved on 31.03.1984. The business was taken over
with the assets and liabilities by the plaintiff, who became the sole proprietor.
This change was notified to the concerned persons. Re-censor certificate was
issued in October, 1981. All the Royalty amounts were paid to the plaintiff.
The film was screened several times and it continued to be very popular. The
3rd defendant used to take the prints as per the plaintiff's instructions. As is
the practice in the film trade, the negatives of the film are kept by the third
defendant, in trust, for the copyright holder. As and when prints are
required, the owner would instruct the third defendant to prepare prints of the
film and the third defendant would do so on payment of charges. The 3rd
defendant cannot supply prints or the negative to any person without the
specific request from the plaintiff.
4. It is the further case of the plaintiff that the plaintiff had screened
"Aathi Parasakthi" in Doordarshan. After the expiry of the contracts with the
original Distributors, the plaintiff and his predecessors had supplied prints to
other Distributors to screen it in various centres. Till date, the plaintiff has
been doing this and the third defendant has been supplying the prints. The
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C.S.No. 474 of 2008
third defendant is fully aware of the exclusive ownership rights of the
plaintiff.
5. While so, in February 2008, the plaintiff was shocked to find that
DVDs and CDs of the, film had flooded the market. They sported the name
of the first defendant herein as the owner of the copyright. Further, an
illegible censorship certificate is also printed in the wrapper of the discs.
6. Immediately, the plaintiff' caused a lawyer's notice to be issued to
the second defendant on 15.02.2008 to stop selling the movie in any form.
Thereafter, the second defendant issued a reply notice dated 21.03.2008 that
he had acquired the copyright for manufacture and sale of VCDs ad DVDs of
the film from the second defendant and that these rights vested only with the
second defendant. Having no other option, the plaintiff has filed the above
suit. However, the second defendant had irrevocably assigned all his rights in
the film to the plaintiff's predecessor-in-title. These rights now vest with the
plaintiff. The third defendant was authorized to keep the negatives of the
film in trust for the plaintiff. The third defendant is fully aware of the title
vesting with the plaintiff. The third defendant is forbidden from handing over
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C.S.No. 474 of 2008
the negatives to any person other than the plaintiff or the plaintiff's nominee.
It is now obvious that the defendants have colluded with each other and have
committed fraud on the plaintiff.
7. It is the further case of the plaintiff that all the rights relating to the
negatives of the film, were conveyed to the plaintiff by the second defendant
under Section 2(f) of the Copyright Act, 1957 and the same is comprehensive
and "cinematograph film" means and includes visual recording on any
medium and includes Video, DVD, CD etc., including the right for satellite
transmission Section 14(d) of the "Copy Right" gives exclusive right to make
a copy of the film and to communicate the film to the public. Therefore, it is
essentially a right that the plaintiff has in the film, to exclude others from
doing any act set out in Section 51 of the Act. The defendants have infringed
on the plaintiff's copyright in the film. The plaintiff alone has the exclusive
right to exploit the film through CDs, DVDs, VCDs and satellite
transmission. The film being a popular one, the defendants are making
unlawful gains by illegally exploiting the film. Moreover, the plaintiff alone
has the exclusive Censorship Certificate and the defendants are misleading
the general public by publishing unreadable, smudged and illegible
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C.S.No. 474 of 2008
Censorship Certificate in the wrappers of their infringed versions of the film.
The plaintiff is entitled to seek accounting, as the defendants have earned
huge sums of money on selling the film in various versions.
8. The plaintiff apprehends that the defendants 1 and 2 are taking
emergent steps to broadcast the film over satellite channels. If they are
permitted to do so, the plaintiff will suffer great prejudice. As the owner of
the copyright, the balance of convenience is in favour of the plaintiff.
9. The suit is one for infringement of copyright of the plaintiff for the
motion picture "Aathi Parasakthi", which is a "Commercial Dispute" as
defined under Section 2(1)(c)(xvii) of the Commercial Courts Act, 2015. The
jurisdiction is thus, determined and this Commercial Division takes
cognizance of the suit.
10. It is seen from the records that the suit against the first defendant
has been dismissed for default as early as on 17.11.2008. Though the
defendants 2 and 3 have been served and they have filed Vakalath, there is no
representation on behalf of them. However, the defendants did not file any
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C.S.No. 474 of 2008
written statement and therefore, they were called absent and set ex-parte on
23.02.2022 and the ex-parte evidence was recorded on 23.02.2022.
11. The plaintiff has filed Proof Affidavit reiterating the plaint
averments and the representation of the plaintiff was also examined before
the learned Master on 23.02.2022, in which, the plaintiff reiterated the
averments in the Proof Affidavit and PW1 was examined and eighteen
documents, namely, Ex.P1 to Ex.P18 were marked. Ex.P1 is the certified
copy of the Agreement between the plaintiff and Chitra Productions dated
10.02.1975, Ex.P2 is the letter from the plaintiff to the third defendant dated
06.04.1977, Ex.P3 is the original copy of the letter from the third defendant
to the plaintiff dated 20.04.1977, Ex.P4 is the xerox copy of the Re-Censor
Certificate of Aathi Parasakthi [Tamil Colour Film], dated 08.10.1981, Ex.P5
is the Deed of Agreement entered into between the plaintiff and with one
M/s.M.S. Movies, Coimbatore-18, dated 22.10.1990, Ex.P6 is the Deed of
Agreement enttered into between the plaintiff and with one Mr.P. Sasidharan,
Coimbatore-45, dated 16.11.1990, Ex.P7 is the Deed of Agreement entered
into between the plaintiff and with one M/s. Ponmuruga Films, Madurai-1,
dated 23.05.1995, Ex.P8 is the lease agreement entered into between the
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C.S.No. 474 of 2008
plaintiff and with one M/s.Vignesh Pictures, dated 29.03.1996, Ex.P9 is the
Deed of Agreement entered into between the plaintiff and with one M/s.Sri
Amudha Films, Villianur, Pondicherry State, dated 15.05.1999, Ex.P10 is the
Deed of Agreement entered into between the plaintiff and with one
M/s.Ponmuruga Films, Madurai-1, dated 11.06.2000, Ex.P11 is the Deed of
Agreement entered into between the plaintiff and with one Ms.Vaigai Films,
Salem -1, dated 05.08.2000, Ex.P12 is the Deed of Agreement entered into
between the plaintiff and with one M/s. TKP Pictures, Chennai - 600 078,
dated 04.02.2002 Ex.P13 is the Deed of Agreement entered into between the
plaintiff and with one M/s. Rajalakshmi Pictures, Chennai - 600 002, dated
06.07.2005 Ex.P14 is the video DVD cassette cover published by the first
defendant, Ex.P15 is the DVD cassette cover published by the first
defendant, Ex.P16 is the xerox copy of the legal notice of the plaintiffs'
counsel issued to the first defendant, namely, M/s.Modern Cinema, dated
15.02.2008, Ex.P17 is the reply notice issued on behalf of the first defendant
to the plaintiff, dated 21.03.2008 and Ex.P18 is the legal notice on behalf of
the plaintiff's counsel issued to the defendants 2 and 3, dated 14.04.2008.
12. On a perusal of the oral and documentary evidence adduced on
behalf of the plaintiff and in the absence of any evidence on behalf of the
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C.S.No. 474 of 2008
defendant to disprove the evidence produced by the plaintiff, this Court is of
the view that the plaintiff has proved the case with respect to the reliefs (i) to
(iii) sought for in this suit.
13. Accordingly, the Civil Suit is decreed in respect of prayers (i) to
(iii) as prayed for. As far as prayer (iv) is concerned, since there is no
material produced to show that there was loss suffered by the plaintiff and no
true accounts have been filed to enable this Court to come to the conclusion,
with regard to the loss suffered by the plaintiff, this Court is not inclined to
decree the same in favour of the plaintiff. Accordingly, the prayer (iv) in the
suit is rejected. No costs.
14.06.2022
Index : Yes / No
Speaking order : Yes/No
msm
List of Witnesses examined on the side of the plaintiff:
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C.S.No. 474 of 2008
P.W.1 : Mr.V. Shamsundar
List of documents marked on the side of the plaintiff:
Sl.
Exs. Date Description of Documents
No.
Certified copy of the Agreement between
1. P1 10.02.1975
the plaintiff and M/s.Chitra Productions
Letter from the plaintiff to the third
2. P2 06.04.1977
defendant
Original copy of the letter from the third
3. P3 20.04.1977
defendant to the plaintiff
Xerox copy of the Re-Censor Certificate
4. P4 08.10.1981 of "Aathi Parasakthi" [Tamil Colour
Film]
Deed of Agreement entered into between
5. P5 22.10.1990 the plaintiff and with one M/s.M.S.
Movies, Coimbatore-18.
Deed of Agreement entered into between
6. P6 16.11.1990 the plaintiff and with one Mr.P.
Sadidharan, Coimbatore-45.
Deed of Agreement entered into between
7. P7 23.05.1995 the plaintiff and with one M/s.
Ponmuruga Films, Madurai-1.
Lease Agreement entered into between
8. P8 29.03.1996 the plaintiff and with one M/s.Vignesh
Pictures
Sl.
Exs. Date Description of Documents
No.
Deed of Agreement entered into between
9. P9 15.05.1999
the plaintiff and with one M/s.Sri
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C.S.No. 474 of 2008
Sl.
Exs. Date Description of Documents
No.
Amudha Films, Villianur, Pondicherry
State
Deed of Agreement entered into between
10. P10 11.06.2000 the plaintiff and with one
M/s.Ponmuruga Films, Madurai-1
Deed of Agreement entered into between
11. P11 05.08.2000 the plaintiff and with one Ms.Vaigai
Films, Salem -1
Deed of Agreement entered into between
12. P12 04.02.2002 the plaintiff and with one M/s. TKP
Pictures, Chennai - 600 078.
Deed of Agreement entered into between
the plaintiff and with one M/s.
13. P13 06.07.2005
Rajalakshmi Pictures, Chennai - 600
Video DVD cassette cover published by
14. P14 --
the first defendant
DVD cassette cover published by the
15. P15 --
first defendant
Xerox copy of the legal notice of the
16. P16 15.02.2008 plaintiffs' counsel issued to the first
defendant viz., M/s.Modern Cinema
Reply notice issued on behalf of the first
17. P17 21.03.2008
defendant to the plaintiff
Legal notice on behalf of the plaintiff's
18. P18 14.04.2008
counsel issued to the defendants 2 and 3
List of Witness examined on the side of the defendant: Nil
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C.S.No. 474 of 2008
List of document marked on the side of the defendant: Nil
VBSJ
14.06.2022
msm
V.BHAVANI SUBBAROYAN, J.
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C.S.No. 474 of 2008
msm
C.S.No. 474 of 2008
14.06.2022
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