Madras High Court
Kishore Kumar vs Fellini T.P on 8 January, 2024
Author: P.T.Asha
Bench: P.T.Asha
C.S.(Comm.Div.212 of 2022)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.01.2024
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
A.No.4649 of 2023
and
C.S.(Comm.Div) No.212 of 2022,
O.A.No.646 of 2022,
A.Nos.4462 and 4901 of 2022,
and 28 of 2024
Kishore Kumar ....Plaintiff
-Vs-
1.Fellini T.P
2.*The August Cinemas India Private Limited,
Represented by its Managing Director, Shaji Nadesan,
Prarthana Citi Park Compund,
Vattiyoorkavu,
Thiruvananthapuram,
Kerala-695013.
3.The Show People Private Limited,
Represented by its Founder, Arya,
New No.37, Old No.4, I Block,
2nd Main Road, Anna Nagar East,
Chennai-600 102.
4.Sanjeev
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5.Sasikumaran
6.Aravind Swami
7*.Saina Video Vision Digital Compact Disc
Marketing and Services Private Limited,
Represented by its Founder, Aashiq Bava,
KMC No.VIII/8201,
Chakkalayil, North Street,
Kayamkulam P.O, Alappuzha,
Kerala – 690502.
8.Simply South Entertainment Limited,
Represented by its Director, Shivani Sahathevan,
8th Floor, South Reading Bridge House,
George Street, Reading,
Berkshire, England, RG18LS.
9.Home Screen Entertainment FZE,
Fujairah-Creative Tower,
P.O.Box 4422,
Dubai, UAE.
10.Amazon Prime,
Tower A, SEZ, World Trade Centre,
Rajiv Gandhi Salai,
Perungudi,
Chennai-600 096.
11.M/s.A.P. International,
Represented by its Partner,
Mr.Sanjay A.Wadhwa,
Old No.80, New No.42,
New Avadi Road,Kilpauk,
Chennai – 600010.
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12.Shaji Nadesan
13.P.M.Bava .. Defendants
*(D2 and D7 are struck off as per order dated 25.01.2023.)
PRAYER IN C.S.(Comm.Div.)212 of 2022:Plaint filed under Order
VII Rule 1 C.P.C. Read with Order IV Rule 1 of Original Side Rules of
the Madras High Court, Sections 57 and 62 of the Copyright Act, 1957,
praying to grant a judgment and decree on the following terms;
i) Declaration in favour of the Plaintiff that the Tamil
Cinematograph Film, Rendagam (Ottu in Malayalam) starring Aravind
Swami, Kunchackobogan and others and produced by 2nd and 3rd
Defendants infringes the Plaintiff's Copyright in the Jawa created,
conceived and written by the Plaintiff.
ii) Permanent injunction restraining the Defendants, their men,
agents,successors-in-business, assigns, representatives, servants,
employees or any person claiming through or under them from in any
manner infringing the plaintiff's copyright in the literary work in the
story 'Jawa' in any manner whatsoever including by substantially
publishing/reproducing the said works including Over The Top (OTT)
platforms, Broadcasting, Telecasting or Exhibiting of the infringed film
through any media in any language;
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iii) Permanent injunction restraining the defendants their men,
agents, successors-in-business, assigns, representatives, servants,
employees, or any person claiming through or under them from in any
manner making and releasing any prequel or sequel in any languages of
the said infringed film 'Rendagam' ('Ottu' in Malayalam);
iv) Direct the defendants to deliver up to the plaintiffs all
copies of the story, script and master copy of the Tamil Cinematograph
film Rendagam ('Ottu' in Malayalam);
v) Preliminary decree directing the defendants to render true
and complete accounts of all revenue and profits generated by the
Tamil Cinematograph Film 'Rendagam' and the Malayalam Version of
the film titled Ottu;
vi) Pass a final decree directing the defendants jointly and
severally to pay the plaintiff the profits as revealed through the
accounts rendered in pursuance of the preliminary decree;
vii) Direct the defendants to pay the costs of the suit.
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A.NO.4649 OF 2023 in C.S.(Comm Div)212 of 2022:
Mr.Aravind Swami ....Applicant/6th defendant
-Vs-
Kishore Kumar ....Respondent/Plaintiff
PRAYER IN A.No.4649 of 2023: Application filed under Order XIV
Rule 8 of O.S.Rules read with XIII-A of the C.P.C. (as amended by the
Commercial Courts Act, 2015) and Section 151 of Code of Civil
Procedure to pass summary judgment dismissing the suit
C.S.(Comm.Div.)212 of 2022 with exemplary and compensatory costs.
For Plaintiff : No Apperance
For Defendants
For D1,D4 and D5 : Mr.Meiyappan Mohan
For D3 : Mr.R.Nalliyappan
For D6 : Mr.Roshan Balasubramanian
For D2 and D7 : struck off as per order dated 25.01.2023
For D8 : Not ready in notice
For D9 and D11 : Mr.K.Harishankar
JUDGMENT
This application in A.No.4649 of 2023 has been filed by the 6th
defendant to pass a summary judgment dismissing the suit in
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C.S.(Comm.Div.)No.212 of 2022 with exemplary and compensatory
costs. Before discussing the grounds on which this application for
summary judgment is filed, it would be necessary to briefly allude to
the facts as narrated in the plaint. The parties are referred to in the same
ranking as in the suit.
2. The plaintiff has filed the suit C.S.(Comm.Div).No.212 of
2022 originally against the following defendants 1 to 8 whose name as
found in the short cause-title is extracted hereinbelow:
"1.Fellini T.P.
2.The August Cinemas India Private Limited
3.The Show People Private Limited
4.Sanjeev
5.Sasikumaran
6.Mr.Aravind Swami
7.Saina Video Vision Digital Compact Disc
Marketing and Services Private Limited
8.Simple South Entertainment Limited"
2.1. The plaintiff has claimed the following reliefs:
(a) For the relief of declaration that the Tamil Cinematographic
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Film, ‘Rendagam’ (‘Ottu’ in Malayalam) (wherever reference is made
to 'Rendagam', it shall also include 'Ottu') starring Aravind Swami,
Kunchacko Boban and others and produced by the defendants 12 and 3
infringes the plaintiff’s copyright in the story ‘Jawa’ created, conceived
and written by the plaintiff;
(b) permanent injunction restraining the defendants, their men,
agents, etc., from in any manner infringing the plaintiff’s copyright by
publishing/reproducing the said works including Over the Top (OTT)
Platforms, Broadcasting, Telecasting or Exhibiting of the infringed film
through any media in any language and from releasing any prequel or
sequel in any language of the said infringed film;
(c) directing the defendants to deliver all copies of the story,
script and master copy of the Tamil Cinematographic Film
‘Rendagam’;
(d) passing preliminary decree directing the defendants to render
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true and complete accounts of all revenue and profits and the final
decree directing the defendants jointly and severally to pay the profits
as revealed in the accounts.
3. It is the case of the plaintiff that he is a writer and an
aspiring Director who had proposed to make and direct the film titled
‘Jawa’. He had created the story and script of this film out of his own
research, thinking, analysis and experience which he had gained by
working as an Associate Director in various movies. He would submit
that he got a 12 page story outline registered with the South Indian
Film Writer’s Association on 09.11.2018 and later a 191 page detailed
story and script registered on 13.03.2020. He had also registered his
story and script with the Screen Writers Association on 04.08.2022.
After registering the story and script, he had started looking out for
Producers and Production Companies to make this story and script into
a feature film in multiple languages.
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4. The plaintiff would submit that he was hunting for
Producers and Production Companies for the said story ‘Jawa’ and that
he had zeroed upon the Producers who had expressed that they had
liked the story and were willing to produce the film. In this connection,
the plaintiff had also narrated the story to the 6th defendant who is a
well-known actor in the Tamil Film Industry and the detailed story and
script has been mailed to him on 21.10.2018. He also contended that he
had personally met the 6th defendant in the month of October 2018 and
narrated the script to him. The 6th defendant had also given his
acceptance to work with the plaintiff in the proposed film as he was
impressed with the story. The plaintiff would submit that the subject
matter of the story is about a deadly gangster who loses his memory in
a fight and his gang follows him in an attempt to bring back his lost
memory to find out the unfinished conspiracy and the secretly hidden
money. It is his case the while he was working on the detailed script to
commence making of the movie, the movie ‘Rendagam’ got released
bilingually in both Tamil and in Malayalam as 'Ottu'. It is his
contention that when he had watched the movie, he found it to be an
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exact replica of the story ‘Jawa’ which he had narrated to the 6th
defendant. The 6th defendant has starred in this movie ‘Rendagam’ and
the same therefore, could not be co-incidence.
5. The plaintiff would submit that he had lodged a complaint
with the South Indian Film Writers Association on 28.09.2022 and an
enquiry had been held on various dates however, no proper response
was received from them. The plaintiff had also contended that he had
narrated the story to the 4th defendant and the defendants 1, 4 and 5
have cleverly plagiarized the story and made the movie ‘Rendagam’
which has been produced by the defendants 1, 2 and 3. The plaintiff
would contend that this movie is an complete infringement of the
plaintiff’s copyright. The plaintiff has in the plaint set out 13
similarities between the movie ‘Rendagam’ and the script of ‘Jawa’ to
highlight the fact that there is an infringement. The plaintiff would
further submit that despite the complaint to the Writers Association, the
defendants had not stopped the screening of the movie and continued to
exploit the same. Therefore, the plaintiff has come forward with the suit
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in question with the reliefs set out hereinabove.
6. The 6th defendant had entered appearance and filed a
written statement setting out in detail the defense to the suit. In the
written statement, the defendants had contended that proper and
necessary parties had not been impleaded and that unnecessary parties
had been impleaded. The plaintiff had thereafter, filed necessary
application for amending the plaint. The amendment was carried out
pursuant to the order dated 03.08.2023, albeit with a delay. Thereafter,
the 6th defendant had come forward with the application which is the
subject matter now before this Court. The application for summary
judgment has been filed for the following reasons:
a. That there is no copyright infringement and the comparison
of the 5 page note sent by the plaintiff to the 6th defendant would
clearly prove the same and therefore, there is no cause of action for
filing this suit;
b. The plaintiff has suppressed the material facts and have
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come to the Court with false and misleading statements and on this
basis, has snatched away an interim order;
c. The statement of truth as required under Order VI Rule
15(a) of the C.P.C. which is applicable to commercial disputes is vague
and defective;
d. The 6th defendant in the affidavit filed in support of this
application at the outset, submitted that the plaintiff had never
approached him in person and did not have any kind of discussion with
him;
e. The e-mails that are alleged to be sent on 16.04.2018,
21.10.2018 and 24.10.2018 have never been received by the 6th
defendant.
7. The 6th defendant would submit that on 24.10.2018 at
around 3.18 p.m. he had received an email from the plaintiff containing
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a 5-page synopsis and not a 12 page synopsis or a 191 page detailed
script and the same has been produced as a document on the side of the
6th defendant. The 6th defendant would further submit that on
24.10.2018 at 3.39 p.m. he had responded asking for details of the
producers and casting. On 24.10.2018 at 4.03 p.m. the plaintiff had
replied that he would send the details as soon as possible. The e-mail
address from which these e-mails has been received was
[email protected]. Thereafter, there has been no
communication by e-mails. Apart from the above email the plaintiff
had also communicated with the 6th defendant through whatsapp.
These messages would reveal that the plaintiff has sent only a 5 page
synopsis and not a full fledged script and the 6th defendant has not
received the alleged e-mail dated 24.10.2018 sent by the plaintiff. On
30.10.2018, the 6th defendant has once again through whatsapp sought
for the details of the producers and the cast to which a vague reply was
received from the plaintiff stating that these things are being worked
out. On 31.10.2018, the 6th defendant once again sought for the details
and the plaintiff in his reply dated 02.11.2018 has re-iterated his earlier
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reply. By message dated 10.11.2018, the plaintiff had informed the 6th
defendant that he had identified one producer and was in coversation
with others. The plaintiff assured the 6th defendant that he would come
back with the complete details on the producers shortly. However, there
was no further information in this regard from the plaintiff.
8. Thereafter, on 01.01.2020, the 6th defendant had received a
new year greeting from the plaintiff after which there was no further
communication between the plaintiff and the 6th defendant. The 6th
defendant would submit that the plaintiff has deliberately suppressed
these e-mails and whatsapp messages, despite filing the statement of
truth and submitting an undertaking that all the documents has been
placed before the Court. The 6th defendant would submit that the
aforesaid e-mails and whatsapp messages would clearly establish the
falsity in the plaintiff's claim that he had personally met the 6th
defendant and narrated the story to him and that full fledged story was
sent to the 6th defendant by him on 21.10.2018. The 6th defendant would
submit that his e-mails dated 24.10.2018 would prove the fact that he
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had informed the plaintiff that he had not received any communication
containing the script/storyline from the plaintiff. The communication
between the plaintiff and the 6th defendant ceased after 10.11.2018 with
the plaintiff stating that he would produce the details of the producers
within short time.
9. The 6th defendant would re-iterate the fact that it was only
a 5-page synopsis that he had received from
[email protected] on 24.10.2018 which synopsis he has not
shared with any of the defendants herein. The 5-page synopsis is only
in the form of idea over which there cannot be any copyright. The
movie in which the 6th defendant has acted has no corelation to the 5-
page synopsis given by the plaintiff. The 6th defendant had briefly set
out the story of the movie 'Rendagam' in paragraph 9 of the affidavit
filed in support of this application for summary judgment as follows:
"9. The movie begins by depicting a young man
named Kichu who is hoping to move to Sweden with his
girlfriend. To make money for the same, he takes up a job
for his uncle who is involved with the mafia. The job
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requires him to help David get back his memory so as to
find some the location of some gold, which apparently only
David knows. If Kichu succeeds in this regard, he would be
paid Rs.25 lakhs and if he fails, he would be paid only Rs.5
lakhs. The twist in the plot is that Kichu is actually David
(who has lost his memory) and the character initially
depicted as David is Assainar (who has neither died nor
list his memory). Assainar pretending to be David is trying
to help Kichu (who is actually David) regain his memory
so as to understand the motive for David's betrayal. The
story about the gold is only a ploy and there is actually no
missing gold involved. Kichu/David's girlfriend, uncle and
other members of the gang are revealed to be working on
Assainar's instructions in a plot to help Kichu/David get
his memory back so that Assainar can find out the reason
for the betrayal. It is subtly indicated at the end of the
movie that David's motive to kill Assainar is based on a
promise that he may have made to a woman. It can thus be
seen that the characters, their motivation, plotlines, and
twists are entirely different from the 5-page synopsis for
'Jawa'. It is thus evident that apart from the loss of memory
of one of the characters and that there is some involvment
criminal gangs (both of which are exceptionally common
themes in movies), there is no other real similarity between
the two main story lines."
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10. The 6th defendant would state that a mere perusal of the
storyline and the movie “Rendagam” would clearly prove that the two
are not similar. The 6th defendant has also set out the similarities which
clearly shows that the same are insignificant. The 6th defendant has set
out in detail the differences in the 'Jawa' synopsis and the movie
'Rendagam' in a tabular form. These disimilarities are over 40 in
number.
11. The 6th defendant would further submit that the Malayalam
version was released on 08.09.2022 and the Tamil version was released
on 23.09.2022 and the trailers for these movies were released in the
public domain (including on You Tube) as early as on 23.02.2022, but,
the plaintiff has approached this Court only after the theatrical release.
That apart, the plaintiff who has come to the Court alleging
infringement of the copyright has not filed either the storyboard or a
copy of the Subject film which is essential for testing if there is
infringement of copyright. Further, he has not bothered to even file 12 -
page synopsis of the story which he claims has been registered by him
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with the Writers' Association. Therefore, the very basis upon which the
suit has been institued has not been placed for the consideration of the
Court. Therefore, the 6th defendant has come forward with this
application for summary judgment.
12. The plaintiff has filed a counter with a delay. Though the
learned counsel for the 6th defendant had initially objected to the same
on the ground that the counter cannot be taken on file beyond the time
limit granted under the Act, ultimately, he consented to the counter
being taken on file.
13. The plaintiff would submit that the application seeking a
summary judgment was not maintainable and that the same has been
filed with self serving allegations and half truths. The plaintiff would
submit that the onus of proving that the plaintiff has no chance to
succeed in his claim solely rests on the 6th defendant and this onus has
not been discharged. The plaintiff would further submit that the criteria
mentioned in Order XIII A of the C.P.C as amended by the Commercial
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Courts Act,2015, to allow the application for summary judgment are
few and this power has to be exercised very sparingly by the Courts. He
would further submit that by taking out such application the very right
which is sought to be exercised by the plaintiff is being denied and it is
needless to state that where evidence is required to be taken to prove
the case then in such cases, the Court should hesitate to allow the
application for summary judgment. The plaintiff would further submit
that to prove his case he has to necessarily adduce evidence and the
same can be done only if the suit is posted for trial.
14. The plaintiff would also set out the possible issues that
emerge on reading the pleadings on either side which is extracted
hereinbelow:
"a. Is the subject film 'Rendagam' ('Ottu' in
Malayalam) an infringement of the Plaintiff's
copyrighted script 'Jawa'?
b. Are there fundamental and material similarities
between the subject film 'Rendagam' ('Ottu' in
malayalam) and the Plaintiff's copyrighted script 'jawa'?
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c. Has the Plaintiff established a causal link to
prove his case by showing that the connection has been
created through the 6th Defendant to the Plaintiff's
copyrighted script 'Java' and the subject film 'Rendagam'
('Ottu' in Malayalam)?
d. Has the Plaintiff narrated the detailed story to
the 6th Defendant?
e. Is the main theme of both the Plaintiff's
copyrighted script 'Java' and the subject film 'Rendagam'
('Ottu' in Malayalam) a story of a gangster who suffers
from memory loss and has forgotten where the stolen
treasure has been kept and the other characters, in a bit
to find the stolen treasure, attempt to revive his memory?
f. Is the Plaintiff entitled to the reliefs as prayed
for and any other reliefs, if so?"
15. He would therefore, submit that the instant case is one
where the plaintiff has to necessarily adduce evidence since the issues
set out above can only be decided on considering the evidence and
cannot be decided merely on basis of the documentary evidence filed
by either side. The plaintiff would submit that the case has been
instituted on the basis of the script which has been registered with the
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Tamil Nadu Writers Association. The very same script has been
narrated to the 6th defendant. That apart, a synopsis has been sent via e-
mail which is an admitted fact. The film in which the 6th defendant has
now starred 'Rendagam' has an uncanny similarity to the script narrated
by the plaintiff.
16. The plaintiff would further submit that a mere pleading that
the plaintiff would not succeed in the suit would not suffice. The 6th
defendant has admitted that he has received the synopsis in the year
2018 itself and therefore, it cannot be mere coincidence he, who had
agreed to act in the film 'Jawa' has acted in the infringing film
'Rendagam'. The plaintiff would submit that the only conclusion that
can be drawn is that the 6th defendant has colluded with the writers,
producers and directors to make the infringing subject film on the basis
of the scipt titled 'Jawa'. The plaintiff had also denied the statement
made by the 6th defendant that he had not received e-mails dated
16.04.2018, 21.10.2018 and 24.10.2018. The fact that the 6th defendant
had admitted that he had received the synopsis and thereafter, has acted
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in the infringing movie requires that he be cross-examined by the
plaintiff. The plaintiff would deny the dissimilarities between the script
and the infringed movie by stating that the dissimilarities are only few.
The striking similarities have to be focussed upon and not
dissimilarities. The differences that have been noted by the 6th
defendant are insignificant and does not in any manner jeopardize the
plaintiff's claim. Further, the 5-page script is an expression of idea in
tangible form and not a mere idea. The plaintiff would deny the
contention of the 6th defendant that there is a defect in the statement of
truth filed by the plaintiff. Therefore, he sought for the dismissal of this
application.
17. The learned counsel for the 6th defendant on the other hand
would submit that there is no similarity and this Court having watched
the movie earlier would be able to notice this fact after going through 5
page mail which was forwarded to him by the plaintiff. Therefore, there
is no necessity to let in oral evidence.
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18. The learned counsel for the 6th defendant would further
submit that the application should be allowed imposing exemplary
costs on the plaintiff owing to his conduct and for filing this frivolous
and vexatious suit lacking in pleadings and cause of action. Further,
after obtaining orders and after this Court had spent over 2 hours
watching the movie "Rendagam" the plaintiff has not chosen to appear
before this Court after he had chosen to take a return of brief from his
counsel and had appeared before this Court. He would rely on the
provisions of Sec 35(3)(a) and (e) of the C.P.C. as amended by the
Commercial Courts Act. The learned counsel would also take this
Court through the discussion and the reason for the Law Commission
to recommand imposition of costs to prevent institution of vexatious
and frivolous litigation as also to ensure that hearing are proceeded
without unnecessary delay. The learned counsel would draw the
attention of this Court to the fact that this suit has had not less than 34
hearings before the present application has been taken up for hearing
today.
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19. He would rely upon the following judgments:
(i) 1978 (4) SCC 118 to support his argument that where
electronic documents are produced, its contents does not require oral
evidence;
(ii) 2003 SCC Online Cal 323 to articulate as what is adaptation
and restitution.
For imposing costs:
(iii) 2012 (6) SCC 430;
(iv) 2012 (5) SCC 370;
(v) OSA 43 of 2020 – Gemini Film Circuit and others vs
Venkateswara Financier.
20. Mr.K.Harishankar, learned counsel appearing on behalf of
the defendants 9, 11 and 13 who are not parties to the Application
under consideration would submit that the respondent/plaintiff has not
come forward with a specific case and against proper parties. The suit
was first filed against one set of parties and interim order dated
05.10.2022 in O.A.No.646 of 2022 was obtained against these persons
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wherein, the defendants 1 to 3 and their nominees 7th and 8th defendants
were each directed to deposit a sum of Rupees Ten lakhs each on or
before 10.10.2022, failing which, the exhibition of the Tamil film,
'Rendagam' and Malayalam version 'Ottu' on the OTT platform would
stand withdrawn. The 2nd and 7th defendants were wrongly described
and by orders in A.Nos.5083, 5085 and 5087 of 2022 dated
25.07.2023, the names of the present 2nd and 7th defendants were
substituted in the place of the earlier parties. The defendants had
complied with the order dated 05.10.2022 in O.A.No.646 of 2022.
However, the amendment pursuant to the orders in A.Nos.5083, 5085
and 5087 of 2022 were not carried out. He would submit that for over 1
½ year, the amendment was not carried out.
21. He would further contend that the plaintiff has not come
forward with a specific case regarding
(a) the script; and
(b) the manner in which it was conveyed to the 6th respondent.
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22. The learned counsel would submit that as regards the script,
in paragraph no.8 the plaintiff would describe it as a 12 page line of
story and 191 page of detailed story on script. However, Doc No:5
which is the Certificate of Registration, issued by the Screen Writers'
Association contains a 6 page script. The learned counsel for the 6th
defendant would submit that it is this script that had been e-mailed to
him. Therefore, there is no clarity as to the script of the movie JAWA
which has been infringed.
23. As regards the manner in which the script has been
communicated to the 6th defendant also there is no clarity. In paragraph
no.7, the plaintiff would give out that he had in person narrated the
story to the 6th defendant in the year 2018. He would also state that the
story script and synopsis were sent by e-mail. Neither the date of the e-
mail nor the document itself has been produced by the plaintiff. There
is also no details about the date and month in which the story was
narrated in person to the 6th defendant. The narration in person in
paragraph 10 is stated to be in the month of October 2018 and e-mailed
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on 21.10.2018. He would further submit that the plaintiff has nowhere
pleaded as to when the 6th defendant has given his acceptance to work
with the plaintiff in the proposed film.
24. He would rely on the judgment of a Division Bench of this
Court reported in 2011 SCC Online Mad 1633 in support of his
argument that there can be no copyright with reference to a story line.
He would contend that a mere reading of the plaintiff's 6 page story line
or the 191 page script would clearly prove that the movie and this
storyline/script are not the same.
DISCUSSION:
25. On 20.12.2023, when the matter was posted before this
Court for arguments in this application, the plaintiff appeared in person
before this Court and informed this Court that he has taken back the
brief from his earlier counsel Mr.C.Iyyapparaj, Mr.G.Paramasivam and
Mr.Rishab Jain and was going to entrust the case to one M/s.Siva
Sendhamizhan who had his office at Spencer Plaza. The matter was,
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C.S.(Comm.Div.212 of 2022)
therefore, adjourned to 22.12.2023 with a direction to the Registry to
print the name of Mr.Sendamizhan, if his vakalat is filed and registered
or else to print the name of the plaintiff. On 22.12.2023, since the
learned counsel viz., Mr.Sendamizhan has not lodged his vakalat, the
case was listed with the cause list showing the plaintiff's name. The
plaintiff was very much aware that the matter was to be listed on
22.12.2023 as orders were passed in his presence on 20.12.2023.
26. Though the plaintiff's name was printed, this Court felt that
he should be given an opportunity and the matter was adjourned to
03.01.2024 and thereafter, to 08.01.2024. On both these dates, the
plaintiff has deliberately kept away. Since the application was filed for
summary judgment by the 6th defendant and as the entire case revolved
around the fact whether the plaintiff's script and the 6th defendant's
motion pictures was similar this Court had proceeded to hear the
arguments. Further, this Court had earlier viewed the movie
“Rendagam” and therefore, it would suffice that the same be compared
with the script sent to the 6th defendant.
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C.S.(Comm.Div.212 of 2022)
27. The application for summary judgment is filed primarily on
the ground that the plaintiff has no real prospect in succeeding in his
claim. Further, the entire case revolves around a comparison of the
script emailed to the defendant and the movie Rendagam/Ottu which
does not require any oral evidence being let in as the same can be
dispossed by considering the documents submitted by either party.
28. The plaintiff who has come to this Court with a specific
case that his story line 'JAWA' which he had narrated/emailed to the 6th
defendant has been infringed upon to produce and exhibit this movie
Rendagam(Tamil)/Ottu (Malayalam) featuring the 6th defendant has
failed to produce the said script/storyline that he has emailed to the 6th
defendant.
29. An application in A.No.4462 of 2023 was filed for
appointing an expert panel to watch the movie 'Rendagam'. On the
request of the learned counsels, this Court had passed an order on
07.09.2023 posting the matter on 15.09.2023 at 5.00 p.m for the Court
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C.S.(Comm.Div.212 of 2022)
to watch the movie 'Rendagam' in the presence of the counsels. When
the movie was viewed on 15.09.2023 not only where the counsels for
the parties present, but, this Court was also informed that the plaintiff
was also present in person. The matter was later posted for filing
counter in the instant application on 26.09.2023. The counter was not
filed on the adjourned date but was filed only on 03.10.2023.
30. The 6th defendant's specific case is that he had received a
script containing first 5 page and not the 12 page synopsis or the 191
page script. In fact, from a reading of the plaint, this Court is unable to
conclude as to which story line/script the plaintiff had forwarded to the
6th defendant. However, since the 6th defendant accepts that he has
received a 5 page script, the same has to be the one filed as Doc.No.5
with the plaint.
31. This Court had watched the movies 'Rendagam' on
15.09.2023, thereafter, when the script produced as Doc.No.5 is
perused, the same does not bear resemblance to the script of the
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C.S.(Comm.Div.212 of 2022)
plaintiff. The similarity stops with the fact that the movie revolves
around gangsters and the hero suffering from a memory loss. The
similarity ends there. However, the film 'Rendagam' is totally different
from the 5 page script of the plaintiff. The differences are set out
below:
S.No. JAWA RENDAGAM/OTTU
1. The film deals with a bad The film focuses on the theme of
man turning into a good betrayal.
man who distributes the
money that he has earned
in the wrong way to auto
drivers and others.
2. The lead characters are The lead character is called
called “Kabali and Jawa” “David/Kichu ” and Assainar.
throughout the movie. Assainar pretends to be David
initially it is Kichu who is David.
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C.S.(Comm.Div.212 of 2022)
S.No. JAWA RENDAGAM/OTTU
3. Kabali and Jawa do not David and Assainar belong to the
know each other prior to same underworld in Mumbai and
Jawa loss of memory. David was Assainar's right hand
Kabali is the simple thief in man.
Tamil Nadu having no
connection to the
underworld.
4. Jawa suffers a memory loss The person who is depicted to
and this continues till the have lost his memory is actually
end of the movie. pretending to have lost his
memory and the person Kichu
who is sent to revive the memory
of David is the one who has
actually lost his memory.
5. Kabali is a small time thief There are no such scenes in this
who trains children to steal movie.
idols from temple at
Thirumayam.
6. The manner in which Kichu (who is David) and
Kabali meets Jawa is while David/Assainar (who is Kichu)
escaping from locals and meet in mall where Assainar is
police and also some working as popcorn vendor.
foreigners after a robbery.
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C.S.(Comm.Div.212 of 2022)
S.No. JAWA RENDAGAM/OTTU
7. Jawa is carrying a bag No such incidents in the movie.
containing Rs.200 crores
and Kabali and
accomplices were keen on
stealing the said amount for
which purpose they
rescued Jawa.
8. Jawa is admitted to a No such incident in the movie.
hospital where a doctor
operates on him and saves
his life. The doctor
diagnoses Jawa with
memory loss but says there
is a chance that his memory
will recover. Kabali insists
that the doctor will have to
stay with them until Jawa
regains his memory and
abducts the doctor.
9. Jawa is a polyglot and can There is no such proficiency
effectively speak multiple attributed to both Assainar as well
languages including Hindi, as David.
Malayalam and Telugu.
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C.S.(Comm.Div.212 of 2022)
S.No. JAWA RENDAGAM/OTTU
10. Jawa causes all sorts of There is no such incident in the
problems to Kabali and his movie. The only love interest
gang. Kabali's niece Mithra depicted is David's girlfriend who
falls in love with Jawa. ultimately turns out to be
Assainar's accomplice whom
David kills at the end.
11. Kabali and Jawa There is no such scene depicted.
voluntarily surrender
themselves to the police
and the police prepares to
actually kill them in an
encounter and Jawa's
people rescue them.
12. Jawa's gang members kill No such incident or premise.
many people while
rescuing him.
13. Jawa is welcomed back in No such incident or premise.
Mumbai by hundreds of
people wielding Ak-47s.
14. Many people in Mumbai No such incident and only in one
including criminals and scene a police officer recognizes
law enforcement officers Assainar at checkpoint and lets
are in fear of Jawa's arrival. him go without any questioning.
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C.S.(Comm.Div.212 of 2022)
S.No. JAWA RENDAGAM/OTTU
15. Jawa's gang goes on the No such incident.
killing spree and commit
various murders,
accompanied by Jawa and
Kabali.
16. Jawa is asked to kill a lady No such incident or premise.
“as beautiful as
Nayanthara” who is
actually a CB-CID Officer.
17. The CB-CID lady through Assainar reveals the truth of what
a flashback narrates the actually happened to David. There
story of Jawa and how he is no lady cop.
became a don and her roles
in his plans.
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C.S.(Comm.Div.212 of 2022)
S.No. JAWA RENDAGAM/OTTU
18. Mithra advises Jawa to No such incident or premise.
pretend as if he has
regained his memory and
continue his activities to
help police find Sota Bhai.
He is told that if he regains
his memory, he will be a
villain capable of
destroying India but if he
does not, he can be a Hero
who saves India from
rowdyism.
19. Mithra and Jawa embark No such incident or premise.
on destroying all goons in
Bombay.
20. The police are then No such incident or premise.
depicted chasing Jawa and
Jawa and Kabali escape
and arrive at Trichy.
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C.S.(Comm.Div.212 of 2022)
S.No. JAWA RENDAGAM/OTTU
21. The story ends apparently The climax of the film depicts a
by showing the redemption shootout where David single-
of Jawa by him distributing handedly kills most of Assainar's
money to various needy gang. David then leaves the scene
people and implying that of the shootout with the motive to
he would become a kill Assainar.
politician.
22. The entire story takes place The movie is split almost evenly
around Trichy, Tamil between Mumbai, a road trip with
Nadu, and Mumbai. a significant stop in Goa, and
Mangalore. Though the purpose of
the road trip is to deliver a car in
Coimbatore, none of the characters
ever enter Tamil Nadu or Kerala.
23. No such incident or A road trip where a number of
premise. The character significant locations are visited is
seems to just recover his used as a ploy to help the
memory on his own character recover his memory.
towards the end of the film. David is taken back to the place
where the Assassination attempt
was made on Assainar in the hope
of it helping him recover his
money.
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C.S.(Comm.Div.212 of 2022)
S.No. JAWA RENDAGAM/OTTU
24. The 5 -page synopsis has There are numerous short
one long flashback. flashbacks through the course of
the movie from different
character's points of view. It is
often not clear as to who is having
the flashback.
25. No such incident or Assainar who is intially portrayed
premise. as David reveals towards the end
of the film that the entire plot was
staged to help Kichu (David)
remember why he betrayed
Assainar. It is also revealed at the
end that David betrayed Assainar
owing to a promise made to a
woman. However, neither the
woman nor her motives are
depicted.
Therefore, it is clear that the movie 'Rendagam' has no similarity
with the script 'Jawa'. The 191 page script also does not bear a
similarity to the movie 'Rendagam'. The only similarity as already
submitted is the story of a gangster and memory loss.
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C.S.(Comm.Div.212 of 2022)
32. Section 14 gives the meaning of copyright and Section
14(a) deals with literary, dramatic or musical work not being a
computer programme. Sub-section (vi) therein, deals with making an
adaption this work. The plaintiff's case is that his work which he had
shared with the 6th defendant has been adapted into the movie
'Rendagam' and therefore the defendants have infringed his work.
33. The Hon'ble Supreme Court in the judgment in the case
R.G Anand vs M/S. Delux Films & Ors reported in 1978 (4) SCC 118
was dealing with a case where the plaintiff, a playwright, dramatist and
producer of stage plays had gone to Court stating that the defendant had
adapted his play 'Hum Hindustani' into a hindi movie 'New Delhi'. The
suit was dismissed and the decision was upheld in appeal by the High
Court. Challenging this concurrent judgment and decree, the plaintiff
had approached the Hon'ble Supreme Court. The Hon'ble Supreme
Court after discussing the legal provision and the judicial precedents in
this regard, observed as follows:
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C.S.(Comm.Div.212 of 2022)
"45.......Thus, the fundamental fact which has to be
determined where a charge of violation of the copyright is
made by the. plaintiff against the defendant is to
determine whether or not the defendant not only adopted
the idea of the copyrighted work but has also adopted the
manner, arrangement, situation to situation, scene to
scene with minor changes or super additions or
embellishment here and y there. Indeed, if on a perusal of
the copyrighted work the defendant's work appears to be
a transparent rephrasing; or a copy of a substantial and
material part of the original, the charge of plagiarism
must stand proved........"
34. After extracting a summary of the film and comparing it
with the script of the play, the Hon'ble Judges observed that though
there were some similarities, these similarities were on trivial points.
The Hon'ble Supreme Court, ultimately, agreed with the decision taken
by the two Courts of fact.
35. In the case on hand also, the similarities are on trivial
points and the story line of the plaintiff has not been copied by the
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C.S.(Comm.Div.212 of 2022)
defendants. This is evident from a mere perusal of the script/story line
of 'JAWA' and the story of the movie 'Rendagam', which this Court has
watched and the dissimilarities pointed out in paragraph 31 supra. This
Court has viewed the entire movie and has compared it with the 5 page
script forwarded with the 6th defendant, it does not require a trail. The
judgment in the case R.G Anand vs M/S. Delux Films & Ors reported
in 1978 (4) SCC 118 supra continues to hold the field and therefore,
this Court holds that there is no infringment as pleaded by the plaintiff.
The script/story line of the plaintiff and the story line of the movie are
totally different.
36. The plaintiff has argued that the suit has to be dismissed
with exemplary costs taking into account the conduct of the plaintiff
and the fact that the plaintiff has pleaded a frivolous and vexatious
case. The plaintiff has come to Court alleging that his script/story line
has been infringed. However, from the pleading and the documents it
appears that there are 2 story lines (a 12 page one and a 5 page one) and
a 191 page script. The plaintiff has not established as to which story
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C.S.(Comm.Div.212 of 2022)
line/script has been infringed. In fact, the plaintiff has not enclosed the
script that he has narrated/emailed to the 6th defendant. Therefore, the
very basis on which the suit is instituted, is flawed.
37. The plaintiff has instituted the suit originally against
unnecessary parties and obtained an interim order of deposit of a sum
of Rs.50,00,000/-(Rupees Fifty Lakhs only). Even after the 6th
defendant had brought this to the notice of the Court, steps have not
been taken immediately to amend the plaint and even after the
amendment was ordered, steps have not been taken to carry out the
amendment immediately. The plaintiff after the filing of this appeal and
after this Court had viewed the movie 'Rendagam' had taken back the
brief from his erstwhile counsel and despite appearing in person before
this Court and representing that he has engaged the services of another
named counsel had not entrusted the brief to the other lawyer nor
appeared before this Court. The conduct of the plaintiff, therefore,
indicates his indifference to the process of law and an intent to protract
the litigation. Therefore, the contention of the learned counsel for the
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C.S.(Comm.Div.212 of 2022)
defendants is that the suit should be dismissed with costs is well-
founded. The plaintiff taking advantage of the minimal Court fee has
filed the suit without adequate pleadings/documents, obtained interim
orders, whereby, a sizeable amount of Rs.50,00,000/-(Rupees Fifty
Lakhs only) belonging to the 11th defendant lies in deposit. The Hon'ble
Supreme Court in the judgment in the case Shanmugam. A Vs Ariya
Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai
Sangam & Ors reported in 2012 (6) SCC 430 had observed that the
number of cases based on false and evasive pleadings is causing delay
in the administration of justice. They have observed as follows in
paragraph nos. 36 and 39.
"36. Unless wrongdoers are denied profit or undue
benefit from frivolous litigations, it would be difficult to
control frivolous and uncalled for litigations. Experience
also reveals that our Courts have been very reluctant to
grant the actual or realistic costs. We would like to explain
this by giving this illustration. When a litigant is compelled
to spend Rs.1 lac on a frivolous litigation there is hardly any
justification in awarding Rs. 1,000/- as costs unless there
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C.S.(Comm.Div.212 of 2022)
are special circumstances of that case. We need to decide
cases while keeping pragmatic realities in view. We have to
ensure that unscrupulous litigant is not permitted to derive
any benefit by abusing the judicial process.
39. Our courts are usually short of time because of
huge pendency of cases and at times the courts arrive at an
erroneous conclusion because of false pleas, claims,
defences and irrelevant facts. A litigant could deviate from
the facts which are liable for all the conclusions. In the
journey of discovering the truth, at times, this Court, on later
stage, but once discovered, it is the duty of the Court to take
appropriate remedial and preventive steps so that no one
should derive benefits or advantages by abusing the process
of law. The court must effectively discourage fraudulent and
dishonest litigants."
The Hon'ble Judges had ordered costs of Rs.25,000/-(Rupees
Twenty Five Thousand only) taking note of the calling of the appellant
but directed him to vacate the premises.
38. In another judgment in the case Maria Margadia Sequeria
Fernandes & Ors vs Erasmo Jack De Sequeria (D) Tr.Lrs.& Ors
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C.S.(Comm.Div.212 of 2022)
reported in 2012 (5) SCC 370, the Hon'ble Supreme Court had ordered
costs for vexatious litigation. They had observed as follows in
paragraph no.82 by which, they had ordered costs of a sum of
Rs.1,00,000/-(Rupees One Lakh only).
"82.It is a matter of common experience that Court's
otherwise scarce time is consumed or more appropriately,
wasted in a large number of uncalled for cases. In this
very judgment, the Court provided that this problem can
be solved or at least be minimized if exemplary cost is
imposed for instituting frivolous litigation. The Court
observed at paged 267-268 that imposition of actual,
realistic or proper costs and/or ordering prosecution in
appropriate cases would go a long way in controlling the
tendency of introducing false pleadings and forged and
fabricated documents by the litigants. Imposition of heavy
costs would also control unnecessary adjournments by the
parties. In appropriate cases, the Courts may consider
ordering prosecution otherwise it may not be possible to
maintain purity and sanctity of judicial proceedings."
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C.S.(Comm.Div.212 of 2022)
39. A Division Bench of this Court in an unreported judgment
in O.S.A.No.43 of 2020 had come down heavily on vexatious
litigation. The Bench observed that the object of the Commercial
Courts Act would stand defeated, if unscrupulous litigants take
advantage of the system instituting frivolous litigation and dragging the
matter for a long time. The Bench had imposed costs of Rs.25,00,000/-
(Rupees Twenty Five Lakhs only).
40. As already set out the plaintiff has come to Court
knowingfully well that the allegation on which his suit is based is
without basis and despite that, has also used the judicial process to
direct the defendants to deposit Rs.50,00,000/-(Rupees Fifty Lakhs
only) which has been lying in deposit for over a year. The plaintiff has
taken his own time to file an application for amendment and after the
same has been ordered, had taken 1 ½ year to carry out the amendment.
He had also not taken steps to engage another counsel, despite this
court directing him to either engage the services of another counsel or
appear in person. This Court has also spent over 2 hours post Court
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C.S.(Comm.Div.212 of 2022)
hours to view the movie to find out if there was any similarity in the
story line of the plaintiff and the movie 'Rendagam'. There is no such
similarity which would conclusively prove that the 5-page script has
been adapted into the movie. Nearly 34 hearings have been held in the
instant case and during the last 2 hearings the plaintiff despite
undertaking to engage another counsel or appear in person has failed to
do both.
41. Therefore, while allowing this application in A.No.4649 of
2023 and dismissing the suit in C.S.(Comm.Div.212 of 2022), there
shall be a direction to the plaintiff to pay costs of Rs.50,000/-(Rupees
Fifty Thousand only) to the Adyar Cancer Institute (WIA), East
Canal Bank Road, Adyar, Chennai, on or before 15.03.2024.
Consequently, connected applications are closed.
08.01.2024
Index : Yes/No
Internet : Yes/No
Neutral Citation : Yes/No
ssa
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C.S.(Comm.Div.212 of 2022)
P.T. ASHA, J,
ssa
A.No.4649 of 2023 and
08.01.2024
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