Punjab-Haryana High Court
Sajjan Kumar Duhan And Another vs Shehnaz Kaur @ Shehnaaz Gill on 1 July, 2024
CR No.1855 of 2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : CR No.1855 of 2024
Pronounced On : July 01, 2024
Sajjan Kumar Duhan and another .... Petitioners
vs.
Shehnaz Kaur @ Shehnaaz Gill .... Respondent
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Dr. Anmol Rattan Sidhu, Senior Advocate
with Mr. Harlove Singh Rajput, Advocate
and Mr. Jashandeep Singh Bains, Advocate
for the petitioners.
Ms. Fury Jain, Advocate
and Mr. Taranjeet Singh Dosanjh, Advocate
for the respondent.
* * *
GURBIR SINGH, J. :
1. Challenge in the present revision petition is to the order dated
29.08.2023, passed by learned Additional District Judge, SAS Nagar
(Mohali) (for brevity - Appellate Court), thereby allowing appeal filed by
the respondent/plaintiff against the order dated 17.05.2023, passed by
learned Civil Judge (Junior Division), SAS Nagar (Mohali) (for brevity -
Trial Court), dismissing the application filed by the respondent under Order
39 Rules 1 and 2 CPC.
2. The respondent before this Court namely Shehnaz Kaur @
Shehnaaz Gill is the plaintiff/applicant before the learned Trial Court and
petitioners herein are the defendants/respondents. However, in order to avoid
confusion, the parties hereinafter shall be addressed as per their original
status in the suit before the learned Trial Court.
3. Plaintiff Shehnaz Kaur @ Shehnaaz Gill filed suit for declaration
that the Agreement dated 25.09.2019, executed between the plaintiff and
defendants is void and unenforceable and for permanent injunction
restraining the defendants or their agents from raising any ownership
claims/conflicts over the works, performances or other related projects/
activities, authored/performed by the plaintiff solely or jointly and further
permanent injunction restraining the defendants or their agents from
defaming the plaintiff and contacting third parties or threatening them with
legal action if they proceed to sign/work with the plaintiff. The said suit was
also filed seeking damages/compensation for the loss of reputation. Along
with the suit, an application for temporary injunction was also filed.
4. The facts, necessary for disposal of the instant petition, are that the
plaintiff is a renowned and well respected Indian film actor, singer and
model. Defendant no.1 is the Proprietor of defendant no.2 i.e.'Simran Music
Industries', which also operates as 'Single Track Studios' with Youtube
username 'hawkrecords'. The plaintiff has sung as well as performed in
numerous songs and music videos including one song titled 'Vehem', which
was recorded by the plaintiff for the defendants in the year 2019. Neither
any contract/agreement was signed between the parties for recording or
producing the said song nor any amount or consideration was paid to the
plaintiff for the said song.
5. In the year 2019 itself, the plaintiff was invited as a participant in
a reality TV show 'Big Boss Season 13', which was premiered on national
television on 01.10.2019, for which the plaintiff entered the Big Boss House
on 27.09.2019. It was further contended that just two days prior to entering
the Big Boss House, defendants approached the plaintiff requesting and
pleading her to sign a quick "Memorandum of Understanding" regarding a
show of intent with respect to their future working relationship. On denying
the request of the defendants, it was conveyed to the plaintiff that it was
nothing but a succinct MoU regarding song 'Vehem' and could always be
modified, if need be. On repeated requests by the defendants, the plaintiff
signed the same in hurry and left for Big Boss House. After the said show
was over, she started getting many offers. However, to the great dismay of
the plaintiff, she came to know that defendants were sending E-mails to
third parties claiming that the plaintiff was their exclusive artist as per
Agreement dated 25.09.2019 and was not allowed to appear in any other
music video without the permission of defendants. When the plaintiff
approached the defendants and demanded a copy of said Agreement dated
25.09.2019, they refused to share the same.
6. In May 2020, the defendants wrote another set of E-mails to
another music label company, in which the plaintiff was working and
demanded to settle considerations with them in case they wished to continue
working with the plaintiff. Feeling aggrieved, the plaintiff sent a legal
notice dated 09.05.2020 to the defendants, detailing all the illegal actions of
the defendants and asking them to desist from addressing any further
correspondence to the third parties and making false accusations regarding
the plaintiff and also demanded a copy of the alleged Agreement, which the
defendants asserted was executed between the parties.
7. The defendants sent reply to the legal notice vide representation
dated 15.05.2020 and for the first time, a copy of the alleged Agreement was
shared with the plaintiff. During September-November 2020, the defendants
wrote another set of E-mails to another music label company 'Desi Music
Factory', where the plaintiff was working. A copy of the mails was also sent
to the plaintiff. The plaintiff then sent detailed legal notice dated
25.12.2020, submitting therein that the impugned Agreement was result of
misrepresentation and was absolutely void and unenforceable. It was
grossly unfair and unilateral, founded on inequality of bargaining power and
shrewdly crafted in a way that all liabilities fall only on the plaintiff while
the defendants stood free from all kinds of liability. The contract was also
void for want of consideration, certainty. It was a commercial contract
extendable in perpetuity which amounted to an unfair Negative Covenant
placing an unjust restraint on the plaintiff's right to freedom of trade and
profession and was opposed to public policy. It was also communicated to
the defendants that she had rescinded the said Agreement and was, in no
way, bound by the same. Since the receipt of above said legal notice dated
25.12.2020 by the defendants, for a period of more than two years, the
plaintiff did not receive any further communication or objections from the
side of the defendants, either directly or via correspondence with the third
parties. The matter was thus deemed finally settled and the plaintiff
successfully completed many projects over the two years including songs,
advertisements, music videos, reality shows, movies etc., without any direct
or indirect interference on the part of the defendants. During these last two
years, plaintiff appeared on three more seasons of Big Boss as a guest and
also made guest appearances in other famous reality shows. She also starred
in the Punjabi movie titled 'Honsla Rakh'. She also hosted her own talk-
show on her Youtube channel.
8. After a long gap, on 15.02.2023, the plaintiff was shocked to learn
that the defendants, after maintaining silence for more than two years,
suddenly raised an ownership conflict through their Youtube channel 'Single
Track Studios' with username 'hawkrecords' on the plaintiff's latest music
video titled 'Ghani Syanni' produced by 'Desi Music Factory' and released
in December 2022, due to which Youtube temporarily suspended the
revenue inflow to the producers of the song, as per their protocol. So, the
producers were deprived of all the revenue from Youtube despite the video
having reached 24 million views. This act of the defendants is negatively
impacting the plaintiff and causing irreparable harm to her career and
reputation. It may further lead to the legal complications and copyright
issues in future.
9. Defendants contested the suit as well as the application for stay.
The case of the defendants is that the instant suit is perfect example of
exploitation as well as self-serving approach adopted by the persons who are
nurtured in the music industry by veterans like defendants. It was contended
that the defendants had been working in the music industry for the last 25
years and giving their blood and sweat in order to explore and grab
opportunities, enabling a person swifting from a common man to a celebrity.
The Agreement in question was duly signed by the parties and was attested
by two witnesses, for legal and valid consideration without any unlawful
object. The Agreement was legal and valid and was not void. The
defendants are a leading name in the Punjabi Media and Entertainment
Industry, who regularly entered into exclusive arrangements and agreements
with different artists. The song titled 'Vehem' was sung by the plaintiff and
it was recorded for the defendants. It is wrong that there was no agreement
or contract between the parties for recording the said song and no
consideration was paid. A sum of Rs.2,11,000/- was paid to the plaintiff and
various other expenses were incurred by the defendants over the production,
promotion, distribution and releasing of the said song by the defendants
under their name, as per mutual agreement between the parties. It was
further contended that the defendants did not approach the plaintiff, rather
she came to the office of the defendants on 25.09.2019 in order to sign the
Agreement in question. The audio/video song/work was released on
02.10.2019, as per desire of the plaintiff whereas it was fixed for release on
27.09.2019 i.e. the date on which the plaintiff was to enter the Big Boss
House but the plaintiff herself delayed the release of the song in order to
create hype among the audience after entering the Big Boss House. The E-
mails/communications were sent to different persons in the music industry
claiming that the plaintiff was their exclusive artist as per the contract dated
25.09.2019 in order to avoid multiplicity of litigation. The defendants
admitted having raised ownership conflict through their Youtube channel on
the plaintiff's latest video due to breach of contract by the plaintiff. It has
been further submitted that the act of the defendants in not raising any
dispute with respect to the song released by the plaintiff titled "Tu Yahin
Hain" on 29.10.20201 is result of their mutual understanding and request of
plaintiff to the defendants for not raising any claims qua this song due to
demise of her better half Sidharath Shukla. The same cannot be portrayed as
acquiescence to harass the defendants.
10. The learned Trial Court has dismissed the application on
17.05.2023, filed by the plaintiff for temporary injunction, on the ground
that no finding can be given with respect to the Agreement dated 25.09.2019
that the same is result of misrepresentation, without consideration or against
public policy. The plaintiff is already working on different projects. So, no
prima facie case is made out in favour of the plaintiff and relief claimed in
the application is not such which cannot be compensated in terms of money.
11. The learned Appellate Court, vide order dated 29.08.2023,
allowed the appeal and has held that the Trial Court has failed to take into
consideration that by writing E-mails to third parties, with whom the
plaintiff was doing certain projects, the reputation of plaintiff was lowered.
The third party would avoid entering into contract with the plaintiff, which
would cause irreparable loss to the plaintiff. After issuing notice by the
plaintiff in December 2020, the defendants kept quiet for two years, which
prima facie shows that the contract was not validly executed and was
specifically rescinded. The major period of contract had already been
passed and the defendants could not be allowed to obstruct the working of
the plaintiff with different projects by writing letters to third parties and in
case, the Agreement is held to be valid, the defendants can be compensated
in terms of money. Prima facie case existed in favour of the plaintiff and
application for temporary injunction was allowed.
12. Learned counsel for the defendants/petitioners has argued that the
plaintiff has not raised any dispute that the Agreement in question was not
signed by her. The same was attested by two independent witnesses. It was
fully lawful, for valuable consideration and was binding on the parties.
Plaintiff has alleged misrepresentation and fraud in the plaint regarding the
alleged Agreement in question but plaintiff worked with the defendants
which resulted in delivery and release of song titled 'Vehem'. The plaintiff
did not file even a single complaint against the defendants for any offence or
fraud. The defendants sent different E-mails to third parties in order to bring
to their notice with respect to breach of trust on the part of the plaintiff. In
order to avoid medium of litigation, they preferred the medium of mediation.
The plaintiff, in her struggling stage of her career, was backed by the
defendants. After earning fame, the behaviour of the plaintiff changed and
she resiled from the Agreement. Negative Covenant is there in the
Agreement and the same binds the parties that at the fag end of the period of
Agreement, defendants cannot be restrained from exercising the right what
belonged to them. Reliance in this regard is placed on judgment of Hon'ble
Delhi High Court in Global Music Injunction Pvt. Ltd. vs. Shatrughan
Kumar Aka Khesari Lal Yadav & Others - FAO (OS) (COMM) 7/2023
and CM Appls. 2067/2023 and 2070/2023.
13. Learned counsel for the plaintiff/respondent has argued that the
Agreement dated 25.09.2019 is result of misrepresentation and without
consideration. So, the same is void and unenforceable. The plaintiff had
already written to the defendants in the legal notice dated 25.12.2020 that
she had rescinded the said Agreement. Since the Agreement itself stood
rescinded, the defendants cannot force the plaintiff to comply with the
negative covenant in the Agreement. After issuing legal notice dated
25.12.2020, the plaintiff did not receive any further communication or
objections from the defendants, which meant that the matter stood finally
settled. Thereafter, the plaintiff also completed various projects over the
period of two years, that too without any interference on the part of the
defendants, either directly or indirectly. Reliance in this regard has been
placed on a judgment of Delhi High Court titled Simran Music Company
vs. Prit Brar and others - Law Finder Doc Id # 445409.
14. I have heard the submissions made by learned counsel for the
parties and have also gone through the record.
15. A bare reading of the Agreement dated 25.09.2019 shows that the
same was effective for five years w.e.f. 25.09.2019, stating therein that the
plaintiff could not sing and record for any other Company. The plaintiff was
to make four official Audios and Videos for the defendants in each year. It
was further stated therein that the plaintiff would not perform or sign for any
other concern/party/individual/person/organization etc. without written
permission of the defendants. The relevant contents of the said Agreement
are as under :-
".....
3) That Party of 1st part shall make 4 (Four)
Official Audio & videos of the party of 2 nd Part in each
year mentioned in the term & Monthly That Party of 2 nd
part can ask for termination of this contract only if the
term mentioned in Point is not completed & (USA)
Show Not Included 2020.
4) That party of 1st part will record
Cassettes/recorded/Song work of party of IInd part with
different span of time and will release/supply/promote
the same all over the territory from time to time. The
party of IInd part will sign in the first instance for giving
a performance/singing songs and/or any other matter/
material on which voice and sound can be transferred
exclusively for the party of First part and None Else.
As per market conditions, Ist party may release
Cassettes in the given period but party of IInd part will
have to record all the cassettes even after the expiry of
Five year's time. Any compilation &/or different
combination of various songs extracted from the
contents of this agreement will not be calculated as a
new recorded/visual work, that the 1st party releases in
near future. Further, the party of second part will not
perform/sign for any other concern/party/individual/
person/organisation without the written.consent/legal
permission/courtesy of the party of the Ist part which
may be on appropriate stamped/Judicial paper
executed in the presence of judicial or executive
authority only and in Future on Music Or Videos, first
party i.e. Simran Music Industries (Smi Records) will
take all the responsibility of the expenses.
5) That it is further clarified that the currency of
time period will be automatically extended until the
completion of the contents of the agreement i.e. the
party of IInd part will not sign/perform/record Her
voice for any other concern/person until the release of
last cassette/recorded work in the market by the party
of the first part. All these cassettes &/or recorded
works will be released one by one
6) That as a full and final settlement the party of
the first part i.e. SMI has paid party of II nd part a lump
sum royalty of Rs.2,11,000.00/- (Rupees Two lacs
eleven Thousand only) per one recorded works during
the currency of period as advance in cash as full and
final consideration and 2nd party has received it in
cash. The above agreement is mainly for name & fame
of the party of IInd part.
7) That the party of first part may record the
recorded work in the voice of the party of II nd part in
any studio available in India/territory at its own choice
under the music arrangement/direction of any of the
professional Music Director of its own choice
8) That the party of 1st part may also sell
copyrights of any of the recorded work/cassettes in
voice of party of IInd part under this contract to any of
the recording/music co. in the territory defined.
9) Party of 2nd part is at liberty to collect songs
from different lyricists, but the selection procedure of
songs/recorded work (matter to be recorded would be
in the hands of party of 1st part and the party of 1st part
will not be bound to pay the charges of songs furnished
by Party of 2nd part and the same will be get recorded,
if selected. At the costs/liability of party of 2 nd part.
Party of 2nd part will not deny recording the songs
collected by Party of 1st part from its own sources. If
the 2nd party sings any song duet and or solo with any
other person, copyrights of that song/recorded work
will be automatically transferred with the 1 st Party and
the full legal liability of the 2 nd party i.e. Ms.
SHEHNAZ KAUR ALIAS SHEHNAZ KAUR GILL.
10) That Party of 2nd part will perform Her
public program/performance or other proceedings with
regard to Her singing profession throughout the world
under the control and supervision of party of 1st part
and party of 2nd part out of all Her earnings (that
includes prizes in shape of any currency and otherwise)
after deducting all expenditure of musicians,
conveyance and sound services etc. that 1 st party will
keep Her 40% part and will hand over 40% to party of
1st part i.e. SMI & Balance 20% Share For
Management (Gurpreet SINGH GALOT ALIAS
GURPREET KHETLA) ....."
16. It is established principle of law that negative covenants, operative
during the period of employment when the employee is bound to serve the
employer exclusively, are not to be regarded as restraint of trade, and
therefore, do not fall under Section 27 of the Indian Contract Act, 1872.
17. It is also well established that freedom of contract must be
founded upon equality and bargaining power between the contracting
parties. The party having less bargaining power is left with little or no
choice but to accept the unfair and unreasonable terms imposed upon it by
the party with superior bargaining power.
18. In the case in hand, plaintiff sent the notice in December to the
defendants rescinding the contract on the ground that it was result of
misrepresentation and fraud. The defendants did not reply to the said notice.
Meanwhile, the plaintiff worked on different projects. Defendants did not
interfere directly or indirectly. The defendants did not raise any issue.
There is no explanation as to why the defendants did not give reply to the
notice sent to them by the plaintiff in December 2020, rescinding the
contract. Moreover, the defendants have not taken any step to restrain the
plaintiff from working anywhere else in violation of terms of the contract.
As per terms of the agreement, the defendants were to make four official
Audios and Videos of plaintiff in each year. Defendants neither took any
step nor gave any notice to the plaintiff for performing her part of the
contract. The defendants seemed to have acquiesced in December 2020 to
the notice of the plaintiff, whereby plaintiff informed the defendants that she
had rescinded the agreement. Defendants did not directly and indirectly
interfere in the working of the plaintiff for the said period and allowed the
plaintiff to work independently. The silence of defendants prima facie
establishes that they took the Agreement to have been rescinded, as
conveyed by the plaintiff.
19. Looking from another angle, defendants Company, due to its
goodwill and reputation in the music industry, is placed on higher pedestal,
whereas the plaintiff, who was an aspiring singer, was dreaming to create
her place in the music industry and accordingly, in order to fulfill her
dreams, acceded to the unfair terms mentioned in the Agreement.
20. To grant injunction, the Courts are required to see three
ingredients i.e. prima facie case, balance of convenience and irreparable loss
or injury. In the present case, prima facie, the terms of the Agreement in
question are unfair and the same is result of one party having superior
bargaining power and the other party at a very inferior position with low
bargaining power. So, the Agreement cannot be prima facie considered to
be valid and therefore, cannot be said to be binding the plaintiff. The
defendants did not interfere the working of the plaintiff for a long period of
two years after receiving legal notice from her, rescinding the Agreement in
question. Balance of convenience is also in favour of the plaintiff. If the
plaintiff is estopped from working, except for the defendants, on the basis of
unfair Agreement, the plaintiff would suffer irreparable loss and injury. In
the case Global Music Injunction Pvt. Ltd. (supra), the Court came to the
conclusion that both the parties to the contract were having equal bargaining
power for mutual benefits and agreement was not one-sided. Since this
judgment is distinguishable on facts, it is of no help to the petitioners/
defendants.
21. In view of what has been discussed in the preceding paragraphs,
this Court is of the view that there is no merit in the present revision petition.
The same is accordingly dismissed.
22. Pending applications, if any, shall stand disposed of along with
this judgment.
July 01, 2024 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
