Madras High Court
P.Ponnuchamy vs M/S.Utv Motion Pictures on 20 January, 2023
O.S.A.No.131 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.01.2023
CORAM :
THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
O.S.A.No.131 of 2020
P.Ponnuchamy .. Appellant
Vs
1.M/s.UTV Motion Pictures,
A Division of UTV Software Communications Ltd.,
rep. by its Authorized Signatory
Govind Dhananjeyan,
No.5, Kush Kumar Road,
Nungambakkam,
Chennai-600 034.
2.A.L.Vijay Anand .. Respondents
Prayer: Appeal filed under Section 13 of the Commercial Courts Act,
2015 read with Order XXXVI Rule 1 of the Original Side Rules read
with Clause 15 of the Letters Patent against the fair and decreetal
order dated 11.2.2020 made in A.No.9660 of 2020 in C.S.No.620 of
2012.
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For the Appellant : Mr.J.Ravikumar
For the Respondent : Mr.Satish Parasaran
Senior Counsel
for M/s.Meghana Nair
for respondent No.1
JUDGMENT
(Delivered by the Hon'ble Acting Chief Justice)
This original side appeal is directed against the order dated
11.2.2020 passed by the learned Single Judge in A.No.9660 of 2019
in C.S.No.620 of 2012.
2. Learned counsel for the appellant submitted that the
appellant/plaintiff has filed a suit, being C.S.No.620 of 2012, for
declaration to declare the movie “Thandavam” produced by the first
defendant and directed by the second defendant starring Actors
Vikram and Anushka and others as an infringement of the appellant's
exclusive copyright in his literary work “Vikramaditan” and for
permanent injunction restraining the defendants, their men, agents,
servants or any one acting under them from seeking censor
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O.S.A.No.131 of 2020
certificate for or distributing, exhibiting, telecasting the movie
“Thandavam” in any language or dealing with the above said movie in
any manner except with written license from the plaintiff.
3. Learned counsel further submitted that the first defendant
filed its written statement on 6.8.2019 denying the averments made
by the appellant/plaintiff and during the pendency of the suit, the
appellant/plaintiff has filed an application in A.No.9660 of 2019 for
inserting the following prayers in the prayer portion of the plaint:
“v) to direct the 1st Defendant to pay a sum of
Rs.36,00,000/- towards royalty for the script of the
plaintiff used in making the movie “Thandavam”.
vi) to direct the 1st Defendant to render true account
of profits made by the 1st defendant by selling the
rights of the movie to the Satellite Channel and online
media partners such as Netflix, YouTube and Amazon
Prime Video, etc, and/or by selling the rights of the
movie for remake and dubbing in the Telugu Language
or such other language(s).”
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O.S.A.No.131 of 2020
4. Learned counsel for the appellant/plaintiff would submit that,
opposing the prayer, the first defendant has filed a detailed counter-
affidavit on 21.1.2020.
5. Learned counsel for the appellant/plaintiff then submitted
that there is an enabling provision in Section 40 of the Special Relief
Act, 1963, which clearly speaks that where no such damages have
been claimed in the plaint, the Court shall, at any stage of the
proceedings, allow the plaintiff to amend the plaint on such terms as
may be just for including such claim. However, the learned Single
Judge disallowed the application giving an adverse finding that the
appellant/plaintiff has slept over the matter for almost nine long
years and suddenly woke up from deep slumber to file an application
for the purpose of amending the prayer. When Section 40 of the
Specific Relief Act, 1963 enables the plaintiff to amend the plaint, it
is absolutely untenable on the part of the learned Single Judge in
dismissing the application of the appellant.
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O.S.A.No.131 of 2020
6. The further submission of learned counsel for the appellant is
that in view of the dismissal of the application, the appellant/plaintiff
has been put to irreparable prejudice and, therefore, the impugned
order of the learned Single Judge is liable to be set aside.
7. In reply, Mr.Satish Parasaran, learned Senior Counsel
appearing for the first respondent submitted that the argument of
learned counsel for the appellant/plaintiff that by virtue of Section 40
of the Specific Relief Act, 1963, the plaintiff can be permitted to
move an application to amend the plaint at any stage of the
proceedings, would send a wrong signal inasmuch as the plaintiff has
slept over the matter for almost a decade keeping the suit pending all
these years. Therefore, the learned Single Judge, after appreciating
the delaying tactics of the appellant/plaintiff, rightly dismissed the
application, which does not call for an interference.
8. We find merits in the submissions made by learned Senior
Counsel for the first respondent. When the appellant/plaintiff has
filed a suit in C.S.No.620 of 2012 for the relief aforesaid, it is not
known as to why he has moved an application in A.No.9660 of 2019
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after a long gap of nine years. Since the application for amendment
was filed long after the dismissal of the application seeking interim
injunction on 26.9.2012 and as the appellant/plaintiff has been
exploiting the copyright in the movie “Thandavam” continuously and
uninterruptedly for more than 9 years, a finding has been given by
the learned Single Judge that all along the appellant/plaintiff did not
deem it fit to amend the prayer.
9. The law relating to allowing of amendment applications is
encapsulated by the Hon'ble Supreme Court of India in Life
Insurance Corporation of India v. Sanjeev Builders Private
Limited and another, cited in 2022 SCC OnLine SC 1128, in and
by which, it is categorically held that the Court has to take into
account the overall facts and circumstances of the case, and exercise
its discretion as to whether the amendment has to be allowed or not
and the Court can also consider the factor as to the application being
beyond the period of limitation, though limitation itself may not be a
factor. In this case, the learned Judge after considering the overall
facts and circumstances of the case has exercised the discretion to
disallow the amendment and we do not find any infirmity in the
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conclusion arrived at by the learned Single Judge. Therefore, the
original side appeal fails and it is dismissed accordingly. There will
be no order as to costs. Consequently, C.M.P.No.6256 of 2020 is
closed.
(T.R., ACJ.) (D.B.C., J.)
20.01.2023
Index : Yes/No
Neutral Citation : Yes/No
bbr
To:
The Sub Assistant Registrar
Original Side
High Court, Madras.
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O.S.A.No.131 of 2020
T.RAJA, ACJ.
AND
D.BHARATHA CHAKRAVARTHY, J.
bbr
O.S.A.No.131 of 2020
20.01.2023
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