Bangalore District Court
Smt. Shumita Deb vs Saregama India Limited on 20 December, 2021
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OS.No.6676/2017
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 20th December 2021
PRESENT
Sri. SADANANDA NAGAPPA NAIK, B.A.L., LL.B.
XVIII Addl.City Civil Judge.
O.S.No.6676/2012
Plaintiff: Smt. Shumita Deb,
D/o Probodh Chandra Dey @
Manna Dey,
No.402, 4th cross, 5th Main,
HRBR 2nd Block,
Bengaluru - 560 043.
(By Sri.V.A., Advocate)
/VS/
Defendant: 1. Saregama India Limited
2nd floor, Spencer Building,
30 Forjett Street, Landmark
The Lane Opp. Bhatia Hospital,
Grant Road (west)
Mumbai - 400 036.
Reptd. By Managing Director.
Also at Kolkata Office
33, Jessore Road, Dum Dum
Kolkata - 700 028.
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OS.No.6676/2017
Also at Bangalore Office
Shop No.480, 3rd Block, 3rd stage,
6th Main Road, 80 Feet road,
Sharada Colony,
West of Chord Road,
1st stage, Basaveshwar Nagar,
Bengaluru, Karnataka - 560 079.
2. Sony DADC Manufacturing (I)
Pvt. Ltd,
Plot No.C-106, TTC Industrial Area
Pawne MIDC, Pawane village,
Navi Mumbai - 400 705,
Reptd. By Managing Director.
(By Sri.D.P.A., Adv., for D1
Sri.D.R.S., Adv., for D2)
Date of institution of 23.09.2017
suit
Nature of the suit Permanent injunction, render
(Suit on pronote, suit accounts, surrender infringing
for declaration and materials and for damages
possession suit for
injunction, etc.
Date of the 30.01.2020
commencement of
recording of the
evidence.
Date on which the 20.12.2021
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 04 02 27
(SADANANDA NAGAPPA NAIK)
XVIII Addl.City Civil Judge, Bangalore.
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J UD GME N T
The plaintiff has filed the present suit against the
defendants for the relief of perpetual injunction, mandatory
injunction and damages for infringing the copyright and other
rights of songs of Late Manna Dey and for costs.
2. The brief and relevant facts as alleged in the plaint
are as follows:
It is the contention of the plaintiff that she is the
daughter of legendary Singer and music composer Probodh
Chandra Dey (Publically known under screen name Manna
Dey) and the sole surviving legal heir. Plaintiff has been privy
to several discussions with him about his views and anguish
on modern music, remixes, cover version, adaptations etc. It is
further contended that the 1st defendant is a limited company
who is presently into recording music. The 1st defendant
claims to have succeeded in interest to Gramophone Company
Ltd., U.K., erstwhile company has purportedly recorded and
distributed certain songs of late Manna Dey. The 2nd defendant
is the manufacturer and distributor of 1st defendant who have
manufactured, distributed and circulated the infringing CD
worldwide.
3. Late Manna Dey started his musical journey since
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1930's after spending more than 50 years in Mumbai, moved
to Bangalore in 2000 to live with his younger daughter
Smt.Sulochana. Plaintiff received training from the legendary
artists and had rendered joint performances with her father.
She and her father released music albums together titled Baba
Mare Gaan during 1995 which came out in cassette and CD
format recorded by Paramount Music Cassettes, Mumbai.
The songs had received good reviews from widesly read
Bengalo Magazines like Sananda, Desh, Anand Bazar Patrika.
During last days her father lived with her and he had left
behind a letter wherein he clearly stated that rights on his
assets and copyrights should be jointly enjoyed by his two
daughters. Her father also gave power of attorney dtd.
26.8.2013 appointing her interalia to stop people from
misrepresentation in any manner, to manage his business, to
receive royalty and protect his proprietary rights to take legal
action for any violation, to safeguard his interest, to release
the newspaper advertisement and other information to the
media to safeguard his interest.
4. It is further contended that after demise of her
father, 1st defendant released the music album CD No.CDNF -
143737 tiled 'Heyto Tomari Jonno' containing 14 songs of her
father sung by Smt.Swagatalakshmi in utter disregard of the
statements of her father during September 2014. The songs in
the infringing CD now embedded in 1 st defendant's new music
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player 'Saregama Caravan" which was launched during May
2017. The songs were a distortion of the original songs of late
Manna Dey. 1st defendant has no right on the songs.
Consequently, in April 2016, 1st defendant had attempted to
release 3 CDs of songs of her father which was sung by 3
different artists. In that regard OS.No.3558/2016 is pending
before this court and 1st defendant along with others were
restrained from in any manner releasing the songs of late
Manna Dey sung by other artists in the event to be held on
1.5.2016.
5. It is further contended that the songs in the
infringing CD are composed and sung by Late Manna Dey.
Late Mannadey had self composed the song 'Ei To Sedin
Tumi' and Ei Kule Ami and Oyi Kule Tumi (song at Sl.No.8 to
11 in the infringing CD). Late Manna Dey composed song
No.2, 3, 9 & 13. The song sung by him would be intensely
involved before fine tuning the melody and sing thereafter.
Thus the songs in the infringing CD were not only sung but
fine tuned by him on several occasions. It is further
contended that her father was against re-mixing songs and
had made public statements about the same. The agreement
produced by 1st defendant in another case failed to
demonstrate that the copyright of the songs set out in
infringing CD rests with him. It is further contended that
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OS.No.6676/2017
Manna Dey's iconic and distinctive style distorted and
prejudiced by the actions of the defendant No.1 & 2. The 1 st
defendant has unfairly, illegally and clandestinely represented
that it is the copyright holder of the songs of Late Manna Dey
and thus engaged Smt.Swagatalakshmi to sing his songs.
Further the defendants 1 & 2 manufactured, reproduced,
released and distributed songs of her father in the infringed
CD without any permission from the copyright holder's legal
heir of plaintiff. Defendants 1 & 2 had intentionally conceived
the idea of Basho saha Gaan wherein Smt.Swagata lakshmi is
narrating her personal experience with late singer which are
utterly false and canvassing her personal familiarity and
following of her music with Late Manna Dey.
6. It is further contended that the infringing songs in
the CD are Jago Notun Probhat Jaago, Ke tumi Tondraharani,
Na Na Jeona, Hoyto Tomari Jonno, Manush Khun Hoye Porre
Manushi Ta Bichar Kore, Ei Sohor Theke Aaro Anek Dure
Chollo Kothai Cholo kothao Chole Jai, Amr Bhalobashar
Rajprosade..Mukut Ta Pore Ache Rajai Shudhu Nei, Ei to
sedin tumi Amare Bochale Amar Abuj Bedona, Tumi Nijer
Mukhei Bolle Jedin sobi Abhinoy, Soti kitchunoi ami dukho
peleo khushi holam jene, O Chand Samle Rakho Jochhnake,
Ei Kule Aami Oi Kule Tumi Maaj Khane Nodi Boye Jay, Chaar
Deyaler Modhe Nanan Drishake Saajiye Niye Bahir Biswake,
Sudhu Ekdin Bhalobsha Mritu Tarpore and Paro Jodi Phire
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Esho.
7. It is further contended that the defendant No.1 & 2
are illegally using the name, photographs, symbols and
sketches of 'Manna Dey' on the infringing CD, it promotions
and even during earlier acts of releasing cover songs and
adaptations. It is further contended that 1st defendant had
unlawfully used the goodwill and reputation personified in the
name 'Manna Dey' to sell its cassettes, CDs, DVDs. The 1 st
defendant added the songs in the infringing CD along with
original soundtrack within the category of 'Manna Dey' in its
protable digital music player ' Saregama Caravan'.
8. Plaintiff has also wrote letter to 1 st defendant to cease
and desist the manufacturing and circulation of the infringing
CD on 11.8.2017 and they gave untenable reply on 7.9.2017.
The defendants 1 & 2 are blatantly proceeding to print
morethan 5000 copies of CD and DVDs pricing each of the
same at Rs.150/- and selling the same worldwide. It is
further contended that the defendants neither obtained
permission and consent from the legal heir of the copyright
holder of Late Manna Dey and have also indulged in making
deceitful narration in the infringed CD towards late Manna
Dey causing more embarassment and harassment to the
plaintiff.
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9. It is further contended that the legendary singer is
the true owner of copyright of the songs whose rights have
accrued to is sole surviving legal heirs of plaintiff. The
defendants are undermining the said fact and taking
advantage of the fact that the singer is no more alive is
appropriating the songs owned by the Manna Dey in its own
favour. The defendant No.1 & 2 have blatantly proceeding to
print more than 5000 copies of CD and DVDs pricing each of
same at Rs.125/- and also being aggressively promoted and
sold online in various portal and websites. Hence, prayed to
decree the suit by granting perpetual injunction restraining
the defendants, their agents, employees, servants, or any
other persons acting through or under them from in any
manner manufacturing circulating, distributing,
disseminating or selling, including by way of remixes,
adaptations or copy versions or in any other manner,
infringing or violating the copy rights and other special rights
over the compositions and songs of late Manna Dey;
For perpetual injunction restraining the defendants,
their agents, employees, servants, or any other persons acting
through or under them from in any manner manufacturing
circulating, distributing, disseminating, communicating,
reproducing or selling, either in physical form or through
electronic portals the CD titled 'Hoyto Tomari Jonno' or any of
the 14 songs and compositions therein;
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To direct the defendant No.1 & 2 to render and furnish
true and correct accounts of (a) Copies of infringing CD
manufactured by defendant No.2 , (b) details of infringing CDs
stored, lying in inventory or with distributors; (c) total sale of
infringing CD through its own and all business channels
(both offline and online) and all information pertaining to
other modes of sale, including electronic sale and
transmission and any other mode of monetization of the
works infringing of the copyrights and other rights of late
Manna Dey';
To order defendant No.1 & 2 for rendition of true and
correct accounts to produce before the court all accounts in
general and invoices, receipts, details of online/electronic
transactions and sales figures in particular;
To direct the defendants, their agents, employees,
servants or any other person acting through or under them to
deliver up for destruction and cancel and destroy or remove
as the case may be, the entire stock of infringing CDs, and
promotional materials pertaining to the infringing CD; and all
other CDs, electronic database and any other material stored
or available in any other form which is infringing of the
copyrights and other rights of late Manna Dey;
To restrain the defendants from using any symbols,
signatures, name, sketches or symbols of Late Manna Dey to
use, promote, advertise, sell, distribute its songs including
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other singer's song through CD, DVD, Digital Music Player
(Caravan), online portals and any other modes;
To direct the defendant jointly and severally to pay a
sum of Rs.10Lakhs to the plaintiff towards unlawful monetary
benefit and violating the moral rights of the Late Legendary
Singer and for costs.
10. Defendant No.1 & 2 appeared through their counsel
and filed written statements denying the plaint averments.
It is the contention of the 1st defendant that the claim of
plaintiff is highly preposterous and arbitrary. There is no
cause of action. The 1st defendant is the owner of the
copyright over the songs contained in the impugned CD.
Plaintiff has no copyright or other right over the songs
contained in the impugned CD or the sound recordings or the
literary works or musical work therein. There is no
infringement of the plaintiff's alleged rights in the 14 songs.
The plaint is vague lacks any material pleadings as regards
how the ownership over the impugned works or songs came to
be vested in Late Manna Dey, and through him, the plaintiff.
The suit is barred by delay and laches. The CD which is
challenged in the present suit was released in September
2014.
11. It is further contended that the 1st defendant
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company is public limited company incorporated under
Companies Act and it was formerly known as Gramophone
Company of India's most respected companies in the music
and entertainment sector. 1st defendant engaged in the
business of production and acquisition of copyrights in the
sound recordings and literary, musical and dramatic works
contains therein and distribution, sale and exploitation of the
same through various modes and mediums. It is further
contended that the 1st defendant is the custodian of over half
of all the music ever recorded in India which makes it the
premiere music destination for South Asian Music and the
most authoritative source of the region's musical heritage. It
is further contended that the 1st defendant is in the business
of musical entertainment and has produced and acquired
and continuous to own copyright in many sound recordings,
literary, musical and dramatic works which form part of the
sound recordings.
12. It is further contended that the 1st defendant itself
is a producer of various sound recordings and by virtue of the
same, is the owner of the underlying musical and literary
works. The 1st defendant is the author of the subject songs by
virtue of being the owner of the original plate of the same. The
owner of the original plate is the owner of the copyright in the
songs. It is further contended that as the inlays/gramaphone
records of the impugned songs also show the name of 1 st
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defendant as the author/publisher of the impugned works, 1 st
defendant is presumed to be the author/publisher of the
same as per the provisions of Copyright Act. The plaintiff has
concealed and misrepresented that late Manna Dey was the
author and owner of the copyright of the songs. The songs at
Sl.No.1, 2, 8, 10 to 14, Late Manna Dey was neither the
composer not the lyricist of the songs. Therefore, he has no
right to claim any ownership over the works incorporated in
the said songs. It is further contended that late Manna Dey
was only the singer of the aforesaid 14 songs. Hence, the
same is not covered under the definition of 'Author' under the
Copyright Act. The 1st defendant was the producer of the
said songs. Lyricists and composers of the said songs have
already assigned their works ie., lyrics and musical works
incorporated in the songs in favour of 1st defendant. It
includes the assignment of all the copyright, performing
rights, and all other rights, title and interest including all
rights of publication or performance in the impugned works
to the 1st defendant. It is further contended that the songs at
Sl.No.4, 6, 7 & 9 were part of cinematograph films. Hence, the
producer of the said films will be the first owner of all the
works incorporated in the said songs as per the provisions of
Copyright Act.
13. It is further contended that the musical works of
the two songs at Sl.No.3 & 5 were composed by late Manna
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Dey and he had assigned the same to the 1st defendant
transferring ownerships and other rights over various musical
works to 1st defendant including the rights production,
reproduction, sale, use etc. There are two agreements ie.,
agreement dtd.6.5.1957 between 1st defendant and Late
Manna Dey in respect of song 'Ei Kule Aami Aar' (Sl.No.3) and
agreement dtd.17.11.1965 in respect of song 'Ei To Sedin
Tumi(Sl.No.5). Under the said agreements, it is mentioned as
the company shall in its absolute discretion be entitled to
manufacture, sell and or catalogue records of all or any of the
titles recorded under the provisions of the agreements and to
authorise any other persons, firms or corporations in any part
of the world so to do when royalties shall be payable as
mentioned in class 5 thereof.
14. It is further contended that the 1st defendant used
to pay royalty amounts to the Late Manna Dey which fact has
been acknowledged by him in the GPA. By virtue of the aid
agreements, and receipt of royalty amounts under the said
agreements, late Manna Dey had transferred all his rights in
favour of 1st defendant. Consequently, Manna Dey did not
have any copyright over the songs (music or lyrics or others)
and the claim of the plaintiff to the contrary is liable to be
rejected. It is further contended that after the demise of
Manna Dey, the plaintiff has, now come before the court to
make unlawful and unjust gains to the detriment of 1 st
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defendant and initiated the present proceedings, despite being
fully aware that all the rights of Manna Dey have been
transferred to 1st defendant by executing the above
agreements. On the above grounds, prayed to dismiss the
suit.
15. The 2nd defendant in its written statement denied
the plaint averments and contended that plaintiff is not
entitled to any equitable relief. Plaintiff has not approached
the court with clean hands. There is no cause of action for
the suit. It is further contended that the 2 nd defendant is a
private limited company, leading home entertainment content
provider and end to end service provider for the entertainment
industry, offering world class digital and physical supply
chain solutions, software services etc. The 2 nd defendant
network consists of service offices, distribution, optical media
production and digital facilities around the globe. It is further
contended that by virtue of a License Agreement dtd.3.4.2014
between the 1st defendant and defendant No.2, the 1st
defendant had granted the 2nd defendant an exclusive, non-
transferable license to reproduce in physical form certain
contents (being the sound recordings and video films) owned
or otherwise controlled by the 1st defendant for manufacture,
marketing and distribution for retail purposes. The said
agreement has been extended from time to time by the
defendants. It is further contended that the 2 nd defendant is
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the manufacturer and distributor of the allegedly infringing
CD based on its agreement with the 1st defendant, which to
the knowledge and belief of the 2 nd defendant, is the owner of
the various songs/ musical works and the copyrights in
respect thereto.
16. It is further contended that the suit has been filed
on the basis of an allegedly infringing CD which was released
to the public in September 2014, as such the present suit is
highly belated and filed after lapse of 3 years from the date of
release of infringing CD and no explanation is forthcoming in
the plaint. The plaintiff has instead chosen to view the songs
in the allegedly infringing CD as 'distortions' as the songs in
the CD are not identical to the songs originally sung by late
Manna Dey. The plaintiff has miserably failed to either plead
or produce sufficient documents to establish that she is the
copyright holder of the alleged infringing songs. Plaintiff has
suppressed various aspects of the matter and correspondence
between the parties. She has not approached the court with
clean hands as such she is not entitled for any reliefs. On the
above grounds, prayed to dismiss the suit.
17. On the basis of the above pleadings my predecessor
has framed the following issues :
1. Whether the plaintiff proves that her father Late
Manna Dey has executed the power of attorney
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dated 26.8.2013 authorising her to do such acts
as claimed in para 9 of the plaint?
2. Whether the plaintiff proves that defendants 1 & 2
violated the personality right of the legendry
singer Manna Dey?
3. Whether the plaintiff proves that she had
inherited the copyright and other special rights
over the composition of songs of late Manna Dey?
4. Whether the defendant No.1 prove that they are
the owners of copyright over the songs contained
in CD?
5. Whether the defendant no.1 proves that they are
the authors of the songs by virtue of the original
plate of the same as per the provisions of the
Copyright Act, 1957?
6. Whether the defendant No.1 prove that late
Manna Dey had transferred all his rights over the
musical works including rights of production,
reproduction, sale use, etc., in its favour as
alleged?
7. Whether the plaintiff proves that she is entitled
for the decree of permanent injunction as prayed?
8. Whether the plaintiff proves that she is entitled
for the decree of mandatory injunction as prayed?
9. Whether the plaintiff proves that she is entitled
for the relief of rendering of account of defendants
as prayed?
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10. Whether the plaintiff is entitled for the damages
as sought for?
11. What order or decree?
Addl.Issues:
1. Whether the plaintiff proves that defendant No.1 has
violated the author's special rights by remixing and
adopting for monitary gain by recording in CD sung
by Smt.Swagatha Lakhsmi as contended?
2. Whether the plaintiff proves that late Manna Dey is
author, composer of the musical work of the 14 songs
covered in the CD referred in the plaint?
18. Plaintiff has got examined her GPA holder as PW1,
got marked the documents at Ex.P1 to P28 and closed her
side. Defendants got examined the Deputy General Manger of
1st defendant as DW1, got marked the documents at Ex.D1 to
D21 and closed their side.
19. Heard the arguments for plaintiff and defendant and
perused entire materials on record. The counsel for the
plaintiff has relied on the following decisions:
1. (2014) 10 SCC 473 - Anvar P.V. Vs. P.K.Basheer &
others.
2. 2001 O Supeme (Cal) 494 - Bhaskar Bhattacharya CEE
PEE Films Pvt. Ltd. Vs Pratik Chowdhury
3. 2015 O Supreme (Mad) 173 - Shivaji Rao Gaikwad Vs.
M/s. Varsha Productions
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OS.No.6676/2017
4. AIR 1987 Delhi 13 - Smt.Manne Bhandri Vs. Kala
Vikas Pictures Pvt.Ltd & Anr.
5. 2012 O Supreme (Del) 1659 - Arun Chadha Vs. OCA
Productions Pvt.Ltd. & Ors.
6. Judgment of Hon'ble High Court of Delhi in RFA
784/2010 - HS Bedi Vs. National Highway Authority of
India
The counsel for the 1st defendant has relied on the
following decisions:
1. MANU/SCOR/13000/2019 - Shumitra Deb Vs.
Saegama India Ltd. & Ors.
2. MANU/KA/5551/2018 - Shumitra Deb Vs. Saegama
India Ltd. & Ors.
3. (1999)3 SCC 573 - Vidhyadhar Vs. Manikrao & Anr.
4. (2005) 2 SCC 217 - Janki Vashdeo Bhojwani & anr. Vs.
Indusind Bank Ltd. & others
5. (2008) 1 All.L.J. 145- Rajni Shukla Vs.Special
Judge(EC Act) Banda & another
6. 2016 SCC Online All 2724 - Siddh Sridevi Vs. Satish
Chandra Tripati
7. Judgment of Hon'ble High Court of Madras in
CRP.PD.NO2631/2017 & CMP No.12571/2017 -
K.Rajalakshmi & Ors.Vs. V.Vijayalakashmi & Others.
8. 2016 SCC Online Bom 2364 - Chitra Jagjit
SinghVs.Panache Media & Ors.
9. (2011) 12 SCC 220 - Rangammal Vs. Kuppuswami & anr.
19
OS.No.6676/2017
10.(2012) 5 SCC 3760 -Maria Margardia Sequeria
Fernandes & Ors. Vs. Erasmo Jakc de Sequeria
11. (1981) 1 SCC 80 - Ramji Dayawala& Sons Pvt. Ltd.
Vs. Invest Import
12. (2003) 8 SCC 745- Narbada Devi Gupta Vs.Birendra
Kumar Jiswal & another
13.(2008) 17 SCC 491- Bachhaj Nahar Vs. Nilima Mandal
& Another
14. (2012) 8 SCC 148 - Union of India Vs. Ibrahim Uddin
& anr.
15. (2012) 13 SCC 80 - Mathai Samuel & Ors.Vs. Eapen
Eapen & Ors.
16.(1977) 2 SCC 820- Indian Performing Rights Society
Vs. Eastern India Motion Pictures Association & Ors.
17. AIR 1989 Ker. 49 - V.T.Thomas & Ors. Vs. Malayala
Manorama Co.Ltd.
18. 2010 SCC Online Cal.2177 - Saregama India Ltd. Vs.
Puneet Prakash Mehra & Ors.
19. 2011 SCC Online Del.4712 - Super Cassettes
Industries Ltd. Vs. Chintamani Rao
20. AIR 1997 SC 2674 - Agriculture Produce Market
Committee - Gondal & others Vs. Giridharbhai
Ramjibhai Chhaniyara & Ors.
21. AIR 2007 DEL.226 - Time Warner Entertainment
Co.LP & Ors.Vs. R.P.G. Netcom Globe & Ors.
22. AIR 1987 DEL.13 - Smt. Mannu Bhandari Vs. Kala
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OS.No.6676/2017
Vikas Pictures Pvt.Ltd.
23. 2003 EWCH 1275 (CH) - Confetti Records (A Firm),
Fundamantal Records, Andrew Alcee Vs. Warner Music
UK Ltd.
24. (2012) SCC Online Del.1508 - Pawan Kumar Dalmia
Vs. HCL Infosystems Ltd & Others.
I have also considered the oral and written arguments of
both counsels and rulings with utmost reverence.
20. My findings on the above issues are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 : Partly in the affirmative
Issue No.5 : In the affirmative
Issue No.6 : In the affirmative
Issue No.7 : In the negative
Issue No.8 : In the negative
Issue No.9 : In the negative
Issue No.10 : In the negative
Addl.Issue No.1: In the negative
Addl.Issue No.2: Partly in the affirmative
Issue No.11 : As per final order,
For the following:
REA S ON S
21. Issue No.1 to 6 and Addl.Issue No.1 & 2: As these
issues are interlinked with each other, they are taken up
together for consideration to avoid repetition.
22. It is the contention of the plaintiff that she is the
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daughter of legendary Singer and music composer Manna Dey
and the sole surviving legal heir. The 1 st defendant is a limited
company who is presently into recording music. 1 St defendant
(earlier known as Gramophone Company Ltd.) has purportedly
recorded and distributed certain songs of late Manna Dey. The
2nd defendant is the manufacturer and distributor of 1 st
defendant's songs and have manufactured, distributed and
circulated the infringing CD worldwide.
23. It is further contended that Late Manna Dey started
his musical journey since 1930's after spending more than 50
years in Mumbai, moved to Bangalore in 2000 to live with his
younger daughter Smt.Sulochana. During last days her father
lived with her and he had left behind a letter wherein he
clearly stated that rights on his assets and copyrights should
be jointly enjoyed by his two daughters. Her father also given
power of attorney dtd. 26.8.2013 appointing her interalia to
stop people from misrepresentation in any manner, to receive
royalty and to protect his proprietary rights, to take legal
action for any violation, to safeguard his interest, to release
the newspaper advertisement and other information to the
media to safeguard his interest.
24. It is further contended that after demise of her
father, 1st defendant released the music album tiled 'Heyto
Tomari Jonno' containing 14 songs of her father sung by
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Smt.Swagatalakshmi in utter disregard of the statements of
her father during September 2014. The songs in the infringing
CD now embodded in 1st defendant's new music player
'Saregama Caravan" which was launched during May 2017.
The songs are a distortion of the original songs of late Manna
Dey. 1st defendant has no right on the songs.
25. It is further contended that the songs in the
infringing CD are composed and sung by Late Manna Dey.
Late Mannadey had self composed the song 'Ei To Sedin
Tumi' and Ei Kule Ami and Oyi Kule Tumi (song at Sl.No.8 to
11 in the infringing CD). Late Manna Dey composed song
No.2, 3, 9 & 13. The song sung by him would be intensely
involved before fine tuning the melody and sing thereafter.
Thus the songs in the infringing CD were not only sung but
fine tuned by him on several occasions. It is further
contended that her father was against re-mixing songs and
had made public statements about the same. It is further
contended that Manna Dey's iconic and distinctive style
distorted and prejudiced by the actions of the defendant No.1
& 2. The 1st defendant has unfairly, illegally and clandestinely
represented that it is the copyright holder of the songs of Late
Manna Dey and thus engaged Smt.Swagatalakshmi to sing
his songs. Further the defendants 1 & 2 manufactured,
reproduced, released and distributed songs of her father in
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the infringed CD without any permission from the copyright
holder's legal heir of plaintiff. Defendants 1 & 2 had
intentionally conceived the idea of Basho saha Gaan wherein
Smt.Swagata lakshmi is narrating her personal experience
with late singer which are utterly false and canvassing her
personal familiarity and following of her music with Late
Manna Dey.
26. It is further contended that the defendant No.1 & 2
are illegally using the name, photographs, symbols and
sketches of 'Manna Dey' on the infringing CD, it promotions
and even during earlier acts of releasing cover songs and
adaptations. It is further contended that 1st defendant had
unlawfully used the goodwill and reputation personified in the
name 'Manna Dey' to sell its cassettes, CDs, DVDs. The 1 st
defendant added the songs in the infringing CD along with
original soundtrack within the category of 'Manna Dey' in its
portable digital music player ' Saregama Caravan'.
28. It is further contended that plaintiff has issued a
cease and desist letter dtd.11.8.2017 to the 1 st defendant not
to manufacture and circulate the infringing CD. Defendant
No.1 has given untenable reply on 7.9.2017. It is further
contended that the defendants neither obtained permission
and consent from the legal heir of the copyright holder of Late
Manna Dey and have also indulged in making deceitful
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narration in the infringed CD towards late Manna Dey
causing more embarassment and harassment to the plaintiff.
28. It is further contended that the legendary singer is
the true owner of copyright of the songs whose rights have
accrued to is sole surviving legal heirs of plaintiff. The
defendant No.1 & 2 have blatantly proceeding to print more
than 5000 copies of CD and DVDs pricing each of same at
Rs.125/- and also being aggressively promoted and sold online
in various portal and websites. Hence, prayed to decree the
suit as prayed.
29. On the other hand, it is the contention of the 1st
defendant that the claim of plaintiff is highly preposterous and
arbitrary. There is no cause of action. The 1 st defendant is the
owner of the copyright over the songs contained in the
impugned CD. Plaintiff has no copyright or other right over
the songs contained in the impugned CD or the sound
recordings or the literary works or musical work therein. There
is no infringement of the plaintiff's alleged rights in the 14
songs. The plaint is vague lacks any material pleadings as
regards how the ownership over the impugned works or songs
came to be vested in Late Manna Dey, and through him, the
plaintiff. The suit is barred by delay and laches. The CD
which is challenged in the present suit was released in
September 2014.
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30. It is further contended that the 1st defendant
company is public limited company incorporated under
Companies Act. It is further contended that the 1 st defendant
is the custodian of over half of all the music ever recorded in
India which makes it the premiere music destination for
South Asian Music and the most authoritative source of the
region's musical heritage. It is further contended that the 1 st
defendant is in the business of musical entertainment and
has produced and acquired and continuous to own copyright
in many sound recordings, literary, musical and dramatic
works which form part of the sound recordings.
31. It is further contended that the 1st defendant itself
is a producer of various sound recordings and by virtue of the
same, is the owner of the underlying musical and literary
works. The 1st defendant is the author of the subject songs by
virtue of being the owner of the original plate of he same. The
owner of the original plate is the owner of the copyright in the
songs. It is further contended that as the inlays/gramaphone
records of the impugned songs show the name of 1 st
defendant as the author/publisher of the impugned works.
The plaintiff has concealed and misrepresented that late
Manna Dey was the author and owner of the copyright of the
songs. The songs at Sl.No.1, 2, 8, 10 to 14, Late Manna Dey
was neither the composer not the lyricist of the songs. It is
further contended that late Manna Dey was only the singer of
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the aforesaid 14 songs. Hence, he is not covered under the
definition of 'Author' under the Copyright Act. It is further
contended that the 1st defendant was the producer of the
said songs and lyricists and composers of the said songs have
already assigned their works ie., lyrics and musical works
incorporated in the songs in favour of 1 st defendant. It is
further contended that the songs at Sl.No.4, 6, 7 & 9 were
part of cinematograph films. Hence, the producer of the said
films will be the first owner of all the works incorporated in
the said songs as per the provisions of Copyright Act.
32. It is further contended that the musical works of
the two songs at Sl.No.3 & 5 were composed by late Manna
Dey and he had assigned the same to the 1st defendant
transferring ownerships and other rights over various musical
works to 1st defendant including the rights production,
reproduction, sale, use etc., as per agreements ie., agreement
dtd.6.5.1957 in respect of song 'Ei Kule Aami Aar' (Sl.No.3)
and agreement dtd.17.11.1965 in respect of song 'Ei To
Sedin Tumi(Sl.No.5).
33. It is further contended that the 1st defendant used
to pay royalty amounts to the Late Manna Dey. By virtue of
the aid agreements, and receipt of royalty amounts under the
said agreements, late Manna Dey had transferred all his
rights in favour of 1st defendant. Consequently, Manna Dey
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did not have any copyright over the songs (music or lyrics or
others) and the claim of the plaintiff to the contrary is liable to
be rejected. It is further contended that after the demise of
Manna Dey, the plaintiff has now come to make unlawful and
unjust gains to the detriment of 1 st defendant and initiated
the present proceedings. On the above grounds, prayed to
dismiss the suit.
34. The 2nd defendant has contended that plaintiff is not
entitled to any equitable relief. Plaintiff has not approached
the court with clean hands. There is no cause of action for
the suit. It is further contended that the 2 nd defendant is a
private limited company, leading home entertainment content
provider and end to end service provider for the entertainment
industry, offering world class digital and physical supply
chain solutions, software services etc. It is further contended
that by virtue of a License Agreement dtd.3.4.2014 between
the 1st defendant and defendant No.2, the 1 st defendant had
granted the 2nd defendant an exclusive, non-transferable
license to reproduce in physical form certain contents (being
the sound recordings and video films) owned or otherwise
controlled by the 1st defendant for manufacture, marketing
and distribution for retail purposes. The said agreement has
been extended from time to time by the defendants. It is
further contended that the 2nd defendant is the manufacturer
and distributor of the allegedly infringing CD based on its
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agreement with the 1st defendant, which to the knowledge and
belief of the 2nd defendant, is the owner of the various songs/
musical works and the copyrights in respect thereto.
35. It is further contended that the suit has been filed
on the basis of an allegedly infringing CD which was released
to the public in September 2014, as such the present suit is
highly belated and filed after lapse of 3 years from the date of
release of infringing CD and no explanation is forthcoming in
the plaint. The plaintiff has instead chosen to view the songs
in the allegedly infringing CD as 'distortions' as the songs in
the CD are not identical to the songs originally sung by late
Manna Dey. The plaintiff has miserably failed to either plead
or produce sufficient documents to establish that she is the
copyright holder of the alleged infringing songs. Plaintiff has
suppressed various aspects of the matter and correspondence
between the parties. She has not approached the court with
clean hands as such she is not entitled for any reliefs. On the
above grounds, prayed to dismiss the suit.
36. Plaintiff has got examined her GPA holder as PW1,
The PW1 in Examination of chief by way of affidavit reiterated
the plaint averment. In support the case of he plaintiff, got
marked the documents at Ex.P1 to P28. Ex.P1 is the Special
Power of Attorney dtd.28.1.2020 executed by Smt. Shumita
Jnan Deb W/o Jnan Ranjan Deb in favour of her husband
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Jnan Ranjan Deb authorising him to act as her true and
lawful attorney. Ex.P2 is the Audio CD named 'Hoyto Tomari
Janya' Bengali Songs, Ex.P3 is the Poster with picture of late
Manna Dey, Ex.P4 is the GPA dtd.26.8.2013 executed by
Sri.P.C.Mnna Dey in favour of his daughter Smt.Shumita Jnan
Deb appointing her as her attorney. Ex.P5 is the Original
death certificate of Manna Dey showing the death of Manna
Dey as 25.10.2013. Ex.P6 is the Death certificate of
Smt.Sulochana Manna Dey shows that she died on 9.1.2012.
Ex.P7 is the certified true copy of death certificate of Smt.
Shuroma Herekar shows that she died on 18.11.2015. Ex.P8
is the Printout of article of Obituary, Ex.P9 & 10 are the email
copies dtd.28.4.2016 exchanged between husband of plaintiff
and Saregama. Ex.P11 is the email copy dtd.10.8.2017
exchanged between husband of plaintiff and Sri.S.F.Karim
Senior Manager of HMV/Saregama. Ex.P12 is the reply email
dtd.7.9.2017, Ex.P13 is the Family Tree certificate
dtd.23.3.2020 showing that Manna Dey left behind his wife
Sulochana Manna Dey and daughters Shuroma Herekar and
Shumita Jnan Deb(plaintiff). Ex.P14 is the True copy of letter
written by Manna Dey, Ex.P15 is the Affidavit dtd.19.6.2013
shows that P.C. Manna Dey has executed the said document
in favour of Smt.Shumita Jnan Deb authorising her to take
severest action if any violation of his rights occurs in respect of
his works, songs and copyrights in any form. Ex.P16 is the
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copy of email dtd.18.12.2020 sent by Sri.Bakul Herekar.
Ex.P17 & 19 are the true copies of condolence letters
dtd.24.10.2013 by President of India and Governor of West
Bengal. Ex.P18 is the True copy of condolence letter
dtd.10.12.2013 issued by Secretary General of Rajya Sabha
addressed to the plaintiff, Ex.P20 is the Copy of email
dtd.19.1.2020 sent Suparna Kanti Ghosh. Ex.P21 & 21(a) are
the Copy of letter dtd.10.6.1997 & its translation written by
Manna Dey to Mr. Beyal. Ex.P21(b) is the Certificate of
authenticity, Ex.P22 is the Copy of 2 photographs downloaded
from internet depicts plaintiff and Sri.Siddaramaiah, Manna
Dey and Kum.Mamatha Banerji Ex.P23 is the copy of
relevant paragraphs of auto biography Manna Dey, memoir by
Kathay Kathay Rathoyejay and published by Pulak
Bandyopadhyay. Ex.P24 & 24(a) are the Copy of relevant
chapters of Sur Samrat Manna Dey and translation copy,
Ex.P25 is the Copy of cover of CD & back cover showing the
name as 'Musical journey with Manna Dey' Ex.P26 is the
promotional photographs by 1st defendant, Ex.P27 & 28 are
the Screenshots of YouTube channel.
37. PW1 in his cross examination has deposed that he is
a B.Sc., Graduate and a businessman. He was also working at
Bombay in a pharmaceutical company as Sales Promotion
Manager earlier. He married the plaintiff on 2.3.1988. His wife
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is B.A.Graduate and a fashion designer. He do not have any
training in music but his wife is highly trained in music and
she is an accomplished singer. His wife is trained by her
Gurujis as well as from her father Manna Dey. His wife has
composed music along with her father. As of now there are no
documents placed before the court to make out that she had
composed music. She had not won any awards for composing
music. His wife is also having some other health issues like
migraine and vertigo problem as such she is unable to travel.
Further deposed that he had verified the document in
connection to the present suit is the CD. He has not signed
any of the agreements which are placed before the court in
connection to the present suit. Some of the averments in his
evidence affidavit are as per his personal knowledge and some
are the facts gathered and some averments are on the basis of
the documents. Manna Dey has two children. Smt. Shuroma
Herekar is the elder daughter of Manna Dey. In the year 1992
Saregama had brought one cover version for which Manna Dey
objected. In 2013, Saregama Senior Manager Mr. Kareem
visited Bengaluru and met Manna Dey to obtain permission
for cover version at that time Manna Dey vehemently objected
for remixes and cover version and advised him to take new
lyricists and new composer and new singers to come out with
good music. He has not produced any document in connection
to any such conversation between Manna Dey and Saregama.
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He has denied the suggestion that Manna Dey never opposed
release of cover version and remixes. He has denied the
suggestion that he was not privy to any of the discussion with
Manna Dey. He is aware that Manna Dey had sung a song
Sathyameva Jayathe for a Kannada movie Kalpavruksha. He is
not aware whether the song Sathyameva Jayathe was sung by
the other singer for another Kannada movie. He has denied
the suggestion that Manna Dey did not object for the song
Sathyameva Jayathe sung by other singer for other movie.
Manna Dey has not filed any case in connection to the song
Sathyameva Jayathe. For the question whether Manna Dey
was a composer for all the songs sung by him, he has
answered that Manna Dey had contributed for the all songs
sung by him. Further deposed that Mr.Manna Dey has not
filed any case against defendant No.1 alleging
misrepresentation. Manna Dey was receiving a royalty till
2012 as per clause 3 of Ex.P.24. Witness further volunteered
that, royalty has been received for 60 years. He has not
produced any statements or documents from notable singers
to show that songs contained in the subject CD are distortion
of the original songs. He has not yet produced any document
to show that the 14 songs contained in the subject CD were
composes by Mr. Manna Dey. They came to know about the
infringement of the subject CD in April 2016. He has admitted
that Mr.Manna Dey had not instituted any suit against
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defendant No.1 during his life time. He has denied the
suggestion that plaintiff has no rights over the songs in the
subject CD and also the rights of Mr.Manna Dey are not
affected. He has admitted that Ex.P.4 GPA do not bear the
signature of Manna Dey. Ex.P.4 GPA was executed at
Narayana Hrudayalaya Hospital at Bangalore. Witness
volunteered that it bears the thumb impression of Manna Dey.
He has admitted that ExP.4 GPA bears the date just prior to 2
months of death of Manna Dey. Plaintiff has filed a suit on the
basis of ExP.4 GPA and as a legal heir. Further deposed that
Manna Dey had 2 children by name Shuroma Herekar and
Shumita Deb (plaintiff). He has admitted that both the
children of Manna Dey has inherited the legacy. Elder
daughter Shuroma Herekar married to Mr.Bakul. They do not
have any children. Mr.Bakul is still alive. He has admitted that
after the demise of Shuroma Herekar, Mr.Bakul has inherited
all her rights. He has admitted that Mr.Bakul is equally
entitled for the rights as that of plaintiff. Witness volunteered
that Mr.Bakul has relinquished all his rights in favour of
plaintiff. He has not produced any documents with respect to
relinquishment of rights by Mr.Bakul infavour of plaintiff. He
has denied the suggestion that plaintiff cannot alone maintain
the suit against the defendants without impleading Mr.Bakul
as co-plaintiff. Manna Dey has sung around 4000 songs in his
lifetime. He is aware of most of the songs he has sung but not
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all the songs. Out of 4000 songs sung by Manna Dey almost
all songs are composed by him. Manna Dey had sung for other
composers also. All 14 of subject CD and Ex.P.2 is composed
by Manna Dey. He has produced the documents to show that
14 songs of subject CD at Ex.P.2 is composed by Manna Dey.
Further deposed that Ex.P.2 itself is the evidence to show that
Manna Dey has composed 14 subject song. He has denied the
suggestion that Manna Dey is not the composer of all 14 songs
of subject CD songs as contended by the plaintiff in his
affidavit. Further deposed that out of 14 songs, 4 songs are
part of Cinematographic film. Manna Dey was not a producer
of those 4 movies. Further deposed that he married plaintiff
in the year 1988. He was born in the year 1953. He did not
have any prior association with Mr. Manna Dey prior to
marriage. Plaintiff has born in the year 1958. He has denied
the suggestion that he do not have any knowledge on what
transpired between 1955-1965. He has admitted that he do
not have any knowledge on the agreements executed between
Manna Dey and the defendant No.1. He has denied the
suggestion that there is no violation of any moral right of
Manna Dey. He has denied the suggestion that the plaintiff do
not have exclusive copyright over subject CD Ex.P.2 and the
present suit is not maintainable. He denied the suggestion
that defendants have not violated any copyright of Manna
Dey or plaintiff. Late.Mr. Manna Dey had health problem
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during 2013. Mr. Manna Dey had heart, kidney and lower
back pain problem. Mr. Manna Dey was admitted to Narayana
Hrudayalaya hospital for a treatment on 17.05.2013 and he
was expired in the hospital on 24.10.2013. Further deposed
that in Ex.P.15 affidavit has got executed by Mr. Manna Dey
when he was in the ICU. Mr. Manna Dey has affixed his left
thumb impression in the presence of Notary. He denied the
suggestion that LTM on Ex.P.15 is not affixed by Manna Dey.
Further deposed that Ex.P.23 extract from Kothaye kothaye
Raat Hoye Jaye Memoir by Pulak Bandyopadhyay is the
Autobiography of Pulak Bandyopadhyay. Page No.22, 24 ,25,
136,214,249 and 250 in Extract of Kothaye kothaye Raat
Hoye Jaye book Ex.P.23 do not pertain to any of the 14 songs
in the CD. He has denied the suggestion that extract of
writings of Latha Mangeshkar, Sandhya Mukherjee, Amjaad
Ali Khan, RD Burman, Kalyan Ji, Hrishikesh Mukherjee,
Suman Gupta, Rupayan Bhattacharya, Manas Chakraborty
do not pertain to 14 songs in the CD.Witness volunteered that
they have not specified the 14 songs in the extract. He denied
the suggestion that writings of Latha Mangeshkar, Sandhya
Mukherjee, Amjaad Ali Khan, RD Burman, Kalyan Ji,
Hrishikesh Mukherjee, Suman Gupta, Rupayan Bhattacharya,
Manas Chakraborty are irrelevant to the present case.
38. On the other hand, defendant No.1 has got examined
the Deputy General Manger of as DW1. The DW1 in his
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examination in chief filed by way of affidavit reiterated the
written statement averments. In support of the oral evidence,
the defendant No.1 got marked the documents at Ex.D1 to
D21. Ex.D1 is the Medical certificate dtd.24.1.2021 issued by
Lokhande's Hospital shows that the plaintiff written
statement suffering from Vertigenous Migraine with severe
vomiting. Ex.D2 is the CD Containing songs, Ex.D3 is the
Inlay of the album Amar Bhalobasar Rajprasade, Ex.D3(a) is
the translation of Ex.D3, Ex.D4, & (a) are the Inlay of the
album containing song Char Deljaler Modhye Nanan
Drishyake with translation, Ex.D5 & 5(a) are the Inlay of the
album containing song Ei shahar Theke Aaro anek dure with
translation, Ex.D6 & 6(a) are the Inlay of the album containing
songHoytoTomar Janya with translation, Ex.D7 &7(a) are the
Inlay of the album containing song Jago, Natun phabhat Jago
with translation, Ex.D8 & 8(a) are the Inlay of the album
containing song Ke tumi tandradharani with translation,
Ex.D9 & 9(a) are the Inlay of the album containing song
Manush Khun Hole pare with translation, Ex.D10 & 10(a) are
the Inlay of the album containing song Na Na Jeona Rakho
Jachnake with translation, Ex.D11 &11(a) are the Inlay of the
album containing song O Chand Sample Rekho with
translation, Ex.D12 & 12(a) are the Inlay of the album
containing song Paro Jodi Phire Eso with translation,
Ex.D13 & 13(a) are the Inlay of the album containing song
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Shudhu Ekdin Bhalobasa with translation, Ex.D14 & 14(a) are
the Inlay of the album containing song Tumi Nijer Mukhei
Bolle Jedin with translation, Ex.D15 & 15(a) are the Inlay of
the album containing song Ei To Sedin with translation,
Ex.D16 & 16(a) are the Inlay of the album containing song Ei
Kule with translation, Ex.D17 & 17(a) is the Inlay of the
album containing song Cheba Akash Notun Ramdhonu with
translation, Ex.D18 & 18(a) are the Inlay of the album
containing song Teen Purusher Gaan with translation,
Ex.D19 is the Statement of account of Saregama India Limited
with ICICI Bank, Ex.D20 is the Original agreement
dtd.17.11.1965 entered into between The Gramaphone
Company of India (Private) Limited and Mr.Manna Dey and
Ex.D21 is the Original agreement dtd.06.05.1957 entered into
between The Gramaphone Company Limited and Mr.Manna
Dey.
39. DW1 in his cross examination has deposed that he is
serving defendant No.1 since May 2013. He has admitted that
his work is related to legal matters only as he is the Deputy
General Manager- Legal and he is not related to
administration work. He has admitted that he has no personal
knowledge about the transaction between Mr.Manna Dey and
defendant No.1. Further deposed that the word "assignment"
is not mentioned in Ex.P.20 and 21 agreements. Ex.P.20 and
21 are formated agreements wherein the name of Mr.Manna
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Dey and dates are typed and written. He has no personal
knowledge as to when the Ex.P.20 and 21 are typed. He
denied the suggestion that because of monopolistic approach
in the market, defendant No.1 has habit of not issuing
agreement copies to the signatories. He has admitted that as
per clause 10 of Ex.D.21, agreement has to be renewed each
year after expiry of initial term. He has admitted the
suggestion that as per clause 11 of Ex.D.20, agreement has to
be renewed each year after expiry of initial term. He has not
produced any documents before the court to show that
Ex.D.20 and 21 are renewed. He has denied the suggestion
that Ex.D.20 and 21 agreements are fabricated and Mr.Manna
Dey has never signed these agreements. He do not know
when the original records are lost as per para No.13 of his
affidavit. He cannot state how may records are lost pertaining
to particular singers. He has not produced any documents to
show what actions they have taken for finding the originals.
He do not know when, where and by whom the songs are
digitalized. He has not produced any documents before the
court as to by which experts songs are digitalized. He do not
know the process of transferring material from analogue to
digital form. He denied the suggestion that he has deliberately
suppressed the originals as it is detrimental to their case. He
is not aware whether original records will have the matrix
imprinted on the edge of records with names of singers,
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lyricists, composers and date of productions. He has admitted
the suggestion that Ex.D3 to 16 are affixed with labels. He has
admitted the suggestion that in Ex.D3 to16 Matrix imprint on
the edge of the records are not visible. He has admitted that if
there is a plain record, a label/ sticker can be affixed on such
plain record. All the 14 songs pertaining to this case are
Bengali songs. He is not aware Mr.Manna Dey had composed
all the songs which was sung by him in Bengali. He is not
aware when Mr.Manna Dey has stopped singing for defendant
No.1. He is not aware Mr.Manna Dey has stopped singing for
defendant No.1 from 1990 as the defendant No.1 wanted to
make cover version of song sung by Mr.Manna Dey through
his nephew. He is not aware whether Mr.Manna Dey was
completely against for making cover versions. He is not aware
where and when the Ex.D2 CD is recorded. He do not know
whether Mr.Manna Dey himself used to compose the songs,
arrange the music, bear expenses of musicians and record the
songs. He is aware about cue sheet in the musical world. He
denied the suggestion that cue sheet will contain the details
of composers, musicians, time spent of recording, expenses
incurred on the recording and signed by the recorders. He has
not produced cue sheet pertaining to 14 songs of subject CD.
He has not produced agreements between 1 st defendant and
other composers in respect of 12 songs. He has admitted that
in Sl.No.10,11 and 13 & 14 of his affidavit, the name of the
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composers shown as Prabhas Dey and Prabhas Dey is the
brother of Mr.Manna Dey. Further deposed that he cannot
recollect whether Prabhas Dey has composed any songs for
any other singers. He has denied that Pulak Banarjee- lyricist
has made a statement that all the songs written by him and
sung by Mr.Manna Dey was also composed by Mr.Manna
Dey. Further deposed that 1st defendant is still not paying
royalty to Mr.Manna Dey as he is no more. Witness
volunteered that 1st defendant has paid royalty to Mr.Manna
Dey until his death. He do not know whether Prabhas Dey
died in the year 2009. He has admitted that bank statements
produced by him as per Ex.D.19 do not show that royalty has
been paid to Mr.Manna Dey on 14 subject songs in the suit.
He has admitted that as per Ex.D.19, a payment has been
made to one Pravas Dey on 08.05.2013. Further deposed that
Defendant No.1 has suspense account in the name of
Mr.Manna Dey. Currently, he do not have information on how
much amount that has been transferred to the suspense
account of Mr.Manna Dey. He do not know how much amount
has been accumulated in the suspense account of Mr.Manna
Dey till today. He has admitted that as per clause 8 of
Ex.D.20 and clause 7 of Ex.D.21 agreements, defendant No.1
has to submit statement of accounts once in 6 months to
Mr.Manna Dey. He has not produced any records to show
that from 1957 onwards, they have submitted any statement
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of accounts once in 6 months to Mr.Manna Dey. He has
denied the suggestion that Mr.Manna Dey used to select the
songs, lyrics, lyricists, tunes and arrange the music, compose
and direct the recordists and make payments to all the
musicians as such controlling the entire recording of all
Bengali songs. He has denied that legal heirs of Mr.Manna
Dey are denied the income on the earnings of Mr.Manna Dey.
Witness volunteered that legal heirs of Mr.Manna Dey have
not come forward to claim the royalty. They have not issued
any official communication to legal heirs of Mr.Manna Dey
after his demise. He has admitted that till 2017, Ex.D2 songs
sung by Swagatalakshmi were available in the market. He has
denied that without paying royalty either to Mr.Manna Dey or
to Swagatalakshmi, they are making illegal profit on the songs.
He do no know whether 1st defendant has paid royalty to
Mr.Manna Dey on Ex.D17 and 18 cover version of Mr.Manna
Dey songs. He denied the suggestion that since there is no
term 'Assignment' in Ex.D.20 and 21 agreements, as the
copyright vests with Mr.Manna Dey. He has denied that they
have released the cover versions of Mr.Manna Dey songs
immediately after his demise to make illegal gains. He has
denied the suggestion that you-Tube channel of SAREGAMA is
still streaming the photo and name of Mr.Manna Dey. He
denied the suggestion that he has not produced any
documents to show that defendant No.1 is the copyright
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holder of subject CD songs in Ex.D.2. He has executed the
examination in chief affidavit in Bombay. He has denied that
defendant No.1 is not paying any royalty on the Ex.D.2 songs
to Mr.Manna Dey.
40. In the above circumstances, if we analyse entire
materials on record, it is not in dispute between the parties
that the plaintiff's father is a Singer of 14 CD Songs and
defendants are the manufacturer and distributor of 14 CDs
of songs. It is also not in dispute that Manna Dey had
composed two songs out of 14 CD songs. It is specifically
pleaded in para 14 of the plaint that, the 1 st defendant has
unfairly, illegally and clandestinely represented itself that it is
the copyright holder of the songs of Late Manna Dey and
without any permission from the copyright holder's legal heir-
plaintiff has manufactured, reproduced, released and
distributed the CDs of songs of Late Manna Dey. It is also
specifically pleaded in para 14 of plaint that Late Manna Dey
is the copyright holder of the 14 songs that are Jago Notun
Probhat Jaago, Ke tumi Tondraharani, Na Na Jeona, Hoyto
Tomari Jonno, Manush Khun Hoye Porre Manushi Ta Bichar
Kore, Ei Sohor Theke Aaro Anek Dure Chollo Kothai Cholo
kothao Chole Jai, Amr Bhalobashar Rajprosade..Mukut Ta
Pore Ache Rajai Shudhu Nei, Ei to sedin tumi Amare Bochale
Amar Abuj Bedona, Tumi Nijer Mukhei Bolle Jedin sobi
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Abhinoy, Soti kitchunoi ami dukho peleo khushi holam jene,
O Chand Samle Rakho Jochhnake, Ei Kule Aami Oi Kule Tumi
Maaj Khane Nodi Boye Jay, Chaar Deyaler Modhe Nanan
Drishake Saajiye Niye Bahir Biswake, Sudhu Ekdin Bhalobsha
Mritu Tarpore and Paro Jodi Phire Esho. It is further pleaded
that 1st defendant has caused a distortion of these songs by
engaging Smt.Swagatha Lakshmi to sing the songs of late
Manna Dey. The same has been denied by the 1 st defendant
contending that they are the owner of these songs.
41. Therefore, before adverting to the issue of distortion
of songs, it is necessary to examine whether Late Manna Dey
had copyright over the 14 songs. If at all Late Manna Dey had
Copyright over the 14 songs, then only the contention of the
plaintiff on causing distortion will arise for consideration. The
1st defendant has relied on Ex.D3 to D18 contending that they
are the owners of copyright of 14 CD song. With respect to
infringement mentioned in para 14 of plaint, 1 st defendant has
produced documents on the inlay of the CD of the song - Jago
Notun Probhat Jaago at Ex.D7 & D7(a) to show that 1 st
defendant is the owner of the 1st song. With respect to 2 nd
song in para 14 of the plaint, 1 st defendant has produced
Ex.D8 & 8(a) which are the inlay of the containing 4 songs and
it contains song - Ke tumi Tondraharani and Na Na Jeona. It
shows that the CD is produced in the year 1978. With respect
to 3rd song in para 14 of the plaint, the defendant No.1 has
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produced Ex.D6 & 6(a). The same is the inlay of the song
Hoyto Tomari Jonno, it shows that it is a film song published
in the year 1959. With respect to 4th song in para 14 of the
plaint, the defendant No.1 has produced Ex.D9, D9(a). The
same is the inlay of the song Manush Khun Hoye Porre
Manushi Ta Bichar Kore. It shows that it is a film song
published in the year 1969. With respect to 6 th song in para
14 of the plaint, the defendant No.1 has produced Ex.D5, &
5(a) which are the inlay of the song Ei Sohor Theke Aaro Anek
Dure Chollo Kothai Cholo kothao Chole Jai. It shows that it is
a film song published in the year 1959. With respect to 7 th
song in para 14 of the plaint, the defendant No.1 has
produced Ex.D18, & 18(a) which is the inlay of the song Amar
Bhalobashar Rajprosade..Mukut Ta Pore Ache Rajai Shudhu
Nei. With respect to 8th song in para 14 of the plaint, the
defendant No.1 has produced Ex.D15, 15(a) which are the
inlay of the song Ei to Sedin Tumi Amare Bochale Amar Abuj
Bedona shows that the said song was published in the year
1966. With respect to 9th song in para 14 of the plaint, the
defendant No.1 has produced Ex.D14 & 14(a). It is the inlay of
the songs and the 2nd song is Tumi Nijer Mukhei Bolle Jedin
sobi Abhinoy, Soti kitchunoi ami dukho peleo khushi holam
jene and it is published in the year 1976. With respect to 10 th
song in para 14 of the plaint, the defendant No.1 has
produced Ex.D11& 11(a). It is the inlay of the song O Chand
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Samle Rakho Jochhnake. It shows that it was published in the
year 1976. With respect to 11 th song in para 14 of the plaint,
the defendant No.1 has produced Ex.D16 & 16(a). It is the
inlay of six songs. It includes the song Ei Kule Aami Oi Kule
Tumi Maaj Khane Nodi Boye Jay it was published in the year
1972, With respect to 12th song in para 14 of the plaint, the
defendant No.1 has produced Ex.D4 & D4(a). These are the
inlays of the song Chaar Deyaler Modhe Nanan Drishake
Saajiye Niye Bahir Biswake. With respect to 13 th song in para
14 of the plaint, the defendant No.1 has produced Ex.D13 &
13(a) which are the inlay of the two songs which include song
Sudhu Ekdin Bhalobsha Mritu Tarpore published in the year
1976. With respect to 14 th song in para 14 of the plaint, the
defendant No.1 has produced Ex.D14 & 14(a). It is the inlay of
the song Paro Jodi Phire Esho. It shows that it was published
in the year 1976. These records shows that Manna Dey was
the singer of these songs.
42. Further, on perusal of Ex.D20 agreement between
the Gramophone Company of India Pvt. Ltd., and Mr. Manna
Dey dated.7.11.1965 and Ex.D21 agreement between the
Gramophone Company of India Pvt. Ltd., and Mr. Manna Dey
dated.6.5.1957, it shows that clause 8 of Ex.D21 is containing
a clause that "the company shall be the owner of the original
plate within the meaning of Indian Copyright Act, 1914, and
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any extensions or modifications thereof, of each title recorded
under the provisions of this agreement at the time when such
agreement is made. The company shall be entitled to the sole
right of production, reproduction, sale, use and performance
(including broadcasting) throughout the world by any and
every means whatsoever of the records of the works performed
by the Artiste under this Agreement". The similar clause is
also found in clause 9 of Ex.P20. The Ex.P20 agreement is
signed by Manna Dey and the Director of Gramophone
Company of India Pvt. Ltd. Ex.P21 is signed by Manna Dey
and PK.Sen recording Administrator of Gramophone Company
of India Pvt. Ltd. These agreements are also containing clause
as to Royalty to be paid to the artist Manna Dey on net sales
made in any part of the world.
43. Considering the ownership of songs by the 1 st
defendant, on meticulous perusal of the documents produced
by the 1st defendant, at Ex.D3 to D18 clearly shows that 1st
defendant is the copyright owner of the songs No.2, 3, 7 to 14
as stated in para No.14 of the plaint (as stated in para No.4 of
the evidence of DW1) having original plate in their possession.
Further, on perusal of the Copyright Act, 1957(prir to
amendment of 1994), it shows that the Author is the owner of
the original plate from which the record is made, at the time of
the making of the plate.
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44. Further out of 14 songs, four songs are part of film
songs they are 'Ei Shahar Theke Aaro Anek Dure of the film
Pratham Kadam Phul produced by Ikans Films, 'Hoyato
Tomari Janya' of the film Teen Bhubaner Prey produced by
Satirtha Productions, 'Jago Natum Prabhat Jago' of the film
Duti Mon produced by S.S.Films, 'Manush Khun Hole Pare' of
the film Chirodiner produced by Anima Chitramandir and the
same are not in dispute. Therefore, these 4 films copyright will
vest with the producers of the film. The defendant No.1 need
not obtain permission from the plaintiff for these four songs.
45. Considering the ownership of copyright by the
plaintiff, the plaintiff has relied on Ex.P23 extract of book
Kathykathay Rat Hoye Jay written by Pulak Bandyapadhyay
published by Ananda Publishers Pvt. Ltd., at page 249 & 250.
The relevant portion is extracted hereunder:
"Back then, PK Sen would select songs for HMV.
He would look at the list of artists and would then
decide which artist would sing which song, which
artist would write a song for the other. Artists didn't
even know for whom they were writing the song for,
after the song was made, Mr.Sen would listen to it in
the rehearsal room, further after discussing it with
Pobitro Mitra and then approving it. With his
approval, most of the singers would agree to sing to
the songs, they didn't dare to take about the songs.
Everybody would have to work under that condition
of HMV. Hemanta Mukhopadhyay would be recorded
thrice a year. He would happily even agree to that,
but would think a little about it, he would record
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songs according to their will but the next time, he
would do it according to his will".
Further, the relevant portion at page 295 is extracted
hereunder:
"Manna Dey, recorded the songs with his own
melody. The sad part is that he didn't get his due
credit till date. Even he himself gave the songs that
he composed to his younger brother due to some
inexplicable reason. In HVM the songs credited under
his younger brother, Gyan, his son in law took the
credits from his younger brother and released it
under his company, paramount cassette. After that,
any music researcher will get into an obvious
confusion."
Further the plaintiff has produced the extract from book
Surasamrat Manna Dey a collection of Essays on Manna Dey
edited by Manas Chakraborthy, published by Prathivash
Kolkatta at Ex.P24. The relevant portions at page No.53 - 55
are extracted hereunder:
" Manna Dey was equally good in making songs
a huge success with his own melody sense. He was
even better than that of so called music directors. He
used to put his own thoughts and ways while singing
the songs over the music directors. I was asked by
some music critic why the directors made Manna
Dey sing to classical songs only, not other singers. I
heard and smiled at myself but didn't answer the
critic".
"Manna Dey was a great musician. A great
music director. His vastness of musical talent has
not been uncovered completely even today. At the
dawn of his musical career he was an assistant to
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some great music directors like Sachin Dev Barman,
Khem Chand Prakash and his uncle Krishna Chanda
Dey."
Further the relevant portion in page No.302 of Ex.P24
interview with Rupayan Bhattacharya & Manas Chakraborty is
extracted hereunder:
" Is this the only reason why you left HMV?
There is also the royalty factor. They are so unwilling
to pay up. Then there is so much inequlity within
HMV. Inequality among different singers. I am not
going into the details, don't want any mudslinghing.
You know, every time I recorded songs in Kolkata
during the Pujas, I made the payment for all the
musicians. HMV barely paid two-fifty to five hundred
only, whereas the bill amount was round about ten
thousand. The rest I paid. But if the recording was
happening in Bombay, HMV used to pay all of thirty
thousand to the artists. I never gave much of thought
about myself. Still don't I used to think that if this is
what HMV thinks my value is, so be it. I accept it.
But once I came to know how they really are treating
me, that hurt me. That very day I went up to them
and asked for a release from their services."
46. The above said extracts contained in Ex.P23 & 24
relevant pages of Auto Biography and relevant chapters of Sur
Samrat Manna Dey do not discloses about the alleged 14
songs have been composed or produced by the Late Manna
Dey. It also do not discloses that Late Manna Dey was the
lyricist of 14 songs. The plaintiff has also admitted in his
cross examination that these Ex.P23 & P24 books do not
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relates to 14 songs.
47. On perusal of the material songs, it is evident that
for the song 'Jago, Natun Prabhat Jago' at Sl.No.1 of para 14
of the plaint, Pulak Banerjee and Hemanta Mukherjee are the
lyricist and Composer. For the song 'Ke Tumi Tandraharani'at
Sl.No.2 of para 14 of the plaint, Pulak Banerjee and Prabhas
Dey are the lyricist and composer. For the song 'Na Na Jeo
Na'at Sl.No.3 of para 14 of the plaint, Pulak Banerjee and
Prabhas Dey are the lyricist and composer. For the song 'Hoyto
Tomari Janya' at Sl.No.4 of para 14 of the plaint, Sudhin
Dasgupta is the lyricist and composer. For the song 'Manush
Khun Hole Pare' at Sl.No.5 of para 14 of the plaint,
Gauriprasanna Mazumder and Nachiketa Ghosh are the
lyricist and composer. For the song 'Ei Sahahar Theke Aaro
Anek Dure' at Sl.No.6 of para 14 of the plaint, Sudhin
Dasgupra is the lyricist and composer. For the song 'Amar
Bhalobasar Rajprasade' at Sl.No.7 of para 14 of the plaint, the
Pulak Banerjee and Nachiketa Ghoh are the lyricist and
composer. For the song 'Ei To Sedin Tumi' at Sl.No.8 of para
14 of the plaint, Pulak Banerjee and Manna Dey are the
lyricist and composer. For the song 'Tumi Nijer Mukhei Bolle
Jedin' at Sl.No.9 of para 14 of the plaint, Pulak Banerjee and
Prabhas Dey are the lyricist and composer. For the song 'O
Chand Samle Rakho Jochhnake' at Sl.No.10 of para 14 of the
plaint, Pulak Banerjee and Prabhas Dey are the lyricist and
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composer. For the song 'Ei Kule Aami Aar'at Sl.No.11 of para
14 of the plaint, Bankim Ghosh and Manna Dey are the
lyricist and composer. For the song 'Char Deyaler Modhye
Nanan Drishyake' at Sl.No.12 of para 14 of the plaint, Sudhin
Dasgupta is the lyricist and composer. For the song 'Shudhu
Ekdin Bhalobasa' at Sl.No.13 of para 14 of the plaint, Pulak
Banerjee and Prabhas Dey are the lyricist and composer. For
the song 'Paro Jodi Phire Eso'at Sl.No.14 of para 14 of the
plaint, Pulak Banerjee and Ratu Mukherjee are the lyricist and
composer.
48. In the above circumstances, if we analyse entire
material on record, there is nothing on the record to show that
the Late Manna Dey was the producer, lyricist or composer of
the songs. However, late Manna Dey was the singer of the 14
songs. The only issue need to be decided is whether the singer
is having copyright over the songs.
49. In order to consider the copyright ownership of the
singer, it is relevant to refer to the provisions of the Copy right
Act and the case laws which are extracted here under for
reference:
Sec.2(d) "author" means - ( under the new Act)
(ii) in relation to a musical work, the composer;
(v) in relation to a cinematograph film or sound
recording the producer;
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Further, the definition of Author under Sec.2(d)(v)&
(vi) of the Act prior to amendment on 10.5.1995(old Act)
read as follows:
(v) in relation to cinematograph film, the owner of
the film at the time of its completion and
(vi) in relation to a record, the owner of the original
plate from which the record is made, at the time
of the making of the plate.
Sec.2(f) "cinematograph firm" means any work of
visual recording on any medium produced through a
process from which a moving image may be produced by
any means and includes a sound recording
accompanying such visual recording and
"cinematograph" shall be construed as including any
work produced by any process analogous to
cinematography including video films;
Sec. 2(m) "infringing copy" means -
(i) in relation to literary dramatic musical or artistic
work, a reproduction thereof otherwise than in the
form of a cinematographic film;
(ii) in relation to a cinematographic film a copy of
the film made on any medium by any means;
(iii) in relation to a sound recording any other
recording embodying the same sound recording
made by any means;
(iv) in relation to a programme or performance in
which such a broadcast reproduction right or a
performer's right subsists under the provisions of
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this Act the sound recording or a cinematographic
film of such programme or performance,
if such reproduction copy of sound recording is
made or imported in contravention of the provisions
of this Act.
Sec.2(uu) "producer" in relation to a cinematograph
film or sound recording means a person who takes the
initiative and responsibility for making the work;
Sec.14 Meaning of copyright- For the purposes of
this Act, "copyright" means the exclusive right subject to
the provisions of this Act, to do or authorize the doing of
any of the following acts in respect of a work or any
substantial part thereof, namely :-
a. in the case of a literary, dramatic or musical work
not being a computer programme,-
i. to reproduce the work in any material form
including the storing of it in any medium by
electronic means,
ii. to issue copies of the work to the public not
being copies already in circulation,
iii. to perform the work in public, or
communicate it to the public,
iv. to make any cinematograph film or sound
recording in respect of the work,
v. to make any translation of the work
vi. to make any adaptation of the work
vii. to do, in relation to a translation or an
adaptation of the work, any of the acts
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specified in relation to the work in sub clauses
(I) to (vi)
b. in the case of a computer programme-
c. to do any of the acts specified in clause (a)
i. to sell or give on hire, or offer for sale or hire,
any copy of the computer programme,
regardless of whether such copy has been sold
or given on hire on earlier occasions
d. in the case of an artistic work,-
e. to reproduce the work in any material form
including depiction in three dimensions of a two
dimensional work or in two dimensions of a three
dimensional work,
i. to issue copies of the work to the public not
being copies already in circulation
ii. to issue copies of the work to the public not
being copies already in circulation
iii. to include the work in any cinematograph film,
iv. to make any adaptation of the work
v. to do in relation to an adaptation of the work
any of the acts specified in relation to the work
in sub clauses (i) to (iv)
f. in the case of a cinematograph film-
g. To make a copy of the film, including a
photograph of any image forming part thereof.
i.To sell or give on hire, or offer for sale or hire,
any copy of the film, regardless of whether such
copy has been sold or given on hire on earlier
occasions.
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ii. To communicate the film to the public
h. in the case of a sound recording-
i. to make any other sound recording embodying it,
i. to sell or give on hire, or offer for sale or hire,
any copy of the sound recording regardless of
whether such copy has been sold or given on
hire on earlier occasions,
ii. to communicate the sound recording to the
public
Explanation - For the purposes of this section, a
copy which has been sold once shall be deemed to
be a copy already in circulation.
Section 16 in the Copyright Act, 1957 - No
copyright except as provided in this Act.--No person shall
be entitled to copyright or any similar right in any work,
whether published or unpublished, otherwise than under
and in accordance with the provisions of this Act or of any
other for the time being in force, but nothing in this
section shall be construed as abrogating any right or
jurisdiction to restrain a breach of trust or confidence.
Sec.17. First owner of copyright- Subject to the
provisions of this Act, the author of a Work shall be the
first owner of the copyright therein :
Provided that -
a. in the case of a literary, dramatic or artistic work
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made by the author in the course of his employment
by the proprietor of a newspaper, magazine or
similar periodical under a contract of service or
apprenticeship, for the purpose of publication in
newspaper, magazine or similar periodical, the said
proprietor shall, in the absence of any agreement to
the contrary, be the first owner of the copyright in
the work in any newspaper, magazine or similar
periodical, or to the reproduction of the work for the
purposes of its being so published, but in all other
respects the author shall be the first owner of the
copyright in the work.
b. Subject to the provisions of clause (a), in the case
of a photograph taken, or a painting or portrait
drawn, or an engraving or a cinematograph film
made, for valuable consideration at the instance of
any person, such person shall, in the absence of any
agreement to the contrary, be the first owner of the
copyright therein.
c. In the case of a work made in the course f the
author's employment under a contract of service or
apprenticeship, to which clause (a) or clause (b) does
not apply, the employer shall, in the absence of any
agreement to the contrary, be the first owner of the
copyright therein.
cc. In the case of any address or speech delivered in
public, the person who has delivered such address
or speech or if such person has delivered such
address or speech on behalf of any other person,
such other person shall be the first owner f the
copyright therein notwithstanding that the person
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who delivers such address or speech, or as the case
may be, the person on whose behalf such address or
speech is delivered, is employed by any other person
who arranges such address or speech or on whose
behalf or premises such address or speech is
delivered;]
d. In the case of a Government work, Government
shall, in the absence of any agreement to the
contrary, be the first owner of the copyright therein.
dd. In the case of a work made or first published by
or under the direction or control of any public
undertaking, such public undertaking shall, in the
absence of any agreement to the contrary, be the
first owner of the copyright therein.
Explanation - For the purposes of this clause and
Section 28-A, "public undertaking", means-
i. an undertaking owned or controlled by
Government, or
ii. a Government Company as defined in Section
617 of the Companies Act, 1956 or,
iii. a body corporate established by or under any
Central, Provincial or State Act;
e. in the case of a work to which the provisions of
Section 41 apply, the international organization
concerned shall be the first owner of the copyright
therein.
Sec.31(c): Statutory licence for cover versions.
(1) Any person desirous of making a cover version,
being a sound recording in respect of any literary,
dramatic or musical work, where sound recordings of
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that work have been made by or with the licence or
consent of the owner of the right in the work, may do
so subject to the provisions of this section:
Provided that such sound recordings shall be in
the same medium as the last recording, unless the
medium of the last recording is no longer in current
commercial use.
(2) The person making the sound recordings shall
give prior notice of his intention to make the sound
recordings in the manner as may be prescribed, and
provide in advance copies of all covers or labels with
which the sound recordings are to be sold, and pay
in advance, to the owner of rights in each work
royalties in respect of all copies to be made by him,
at the rate fixed by the Commercial Court in this
behalf:
Provided that such sound recordings shall not
be sold or issued in any form of packaging or with
any cover or label which is likely to mislead or
confuse the public as to their identity, and in
particular shall not contain the name or depict in
any way any performer of an earlier sound
recording of the same work or any cinematograph
film in which sound recording was incorporated
and, further, shall state on the cover that it is a
cover version made under this section.
(3) The person making such sound recordings shall
not make any alteration in the literary or musical
work which has not been made previously by or
with the consent of the owner of rights, or which is
not technically necessary for the purpose of making
the sound recordings:
Provided that such sound recordings shall not
be made until the expiration of five calendar years
after the end of the year in which the first sound
recordings of the work was made.
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(4) One royalty in respect of such sound recordings
shall be paid for a minimum of fifty thousand copies
of each work during each calendar year in which
copies of it are made:
Provided that the Commercial Court may, by
general order, fix a lower minimum in respect of
works in a particular language or dialect having
regard to the potential circulation of such works.
(5) The person making such sound recordings shall
maintain such registers and books of account in
respect thereof, including full details of existing
stock as may be prescribed and shall allow the
owner of rights or his duly authorised agent or
representative to inspect all records and books of
account relating to such sound recording:
Provided that if on a complaint brought before
the Commercial Court to the effect that the owner of
rights has not been paid in full for any sound
recordings purporting to be made in pursuance of
this section, the Commercial Court is, prima facie,
satisfied that the complaint is genuine, it may pass
an order ex parte directing the person making the
sound recording to cease from making further
copies and, after holding such inquiry as it
considers necessary, make such further order as it
may deem fit, including an order for payment of
royalty.
Explanation.--For the purposes of this section cover
version means a sound recording made in
accordance with this section.]
Sec.51. When copyright infringed-
Copyright in a work shall be deemed to be infringed-
a. when any person, without a license granted by
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the owner of the Copyright or the Registrar of
Copyrights under this Act or in contravention of the
conditions of a license so granted or of any
conditions imposed by a competent authority under
this Act-
i. does anything, the exclusive right to do which is
by this Act conferred upon the owner of the
copyright, or
ii. [(Note: Subs. by Act 38 of 1994, S.16(1) (w.e.f. a
date to be notified)) permits for profit any place to
be used for the communication of the work to the
public where such communication constitutes an
infringement of the copyright in the work, unless
he was not aware and had no reasonable ground
for believing that such communication to the
public would be an infringement of copyright, or]
(b) when any person-
i. make for sale on hire, or sells or lets for hire, or
by way of trade displays or offers for sale or hire,
or
ii. distributes either for the purposes of trade or to
such an extent as to affect prejudicially the
owner of the copyright, or
iii. by way of trade exhibits in public, or
iv. imports into India,
any infringing copies of the work:
Provided that nothing in such clause (iv) shall apply
to the import of one copy of any work for the private
and domestic use of the importer.]
Explanation - For the purposes of this section, the
reproduction of a literary, dramatic, musical or
artistic work in the form of a cinematograph film
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shall be deemed to be an "infringing copy".
Sec. 55. Civil remedies for infringement of
copyright -
(1) Where copyright is any work has been infringed,
the owner of the copyright shall, except as otherwise
provided by this Act, be entitled to all such
remedies by way of injunction, damages, accounts
and otherwise as are or may be conferred by law for
the infringement of a right.
Provided that if the defendant proves that at
the date of the infringement he was not aware and
had no reasonable ground for believing that
copyright subsisted in the work, the Plaintiff shall
not be entitled to any remedy other than an
injunction in respect of the infringement and a
decree for the whole or part of the profits made by
the defendant by the sale of the infringing copies as
the court may in the circumstances deem
reasonable.
(2) Where, in the case of a literary, dramatic,
musical or artistic work, a name purporting to be
that of the author or the publisher, as the case may
be, appears on copies of the work as published, or,
in the case of an artistic work, appeared on the
work when it was made, the person whose name so
appears or appeared shall, in any proceeding in
respect of infringement of copyright in such work,
be presumed, unless the contrary is provided, to be
the author or the publisher of the work, as the case
may be.
(3)The costs of all parties in any proceeding in
respect of the infringement of copyright shall be in
the discretion of the court.
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Sec.57 Author's special right.--
(1) Independently of the author's copyright and even
after the assignment either wholly or partially of the
said copyright, the author of a work shall have the
right----
(1) Independently of the author's copyright and even
after the assignment either wholly or partially of the
said copyright, the author of a work shall have the
right--"
(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any
distortion, mutilation, modification or other act in
relation to the said work which is done before the
expiration of the term of copyright if such
distortion, mutilation, modification or other act
would be prejudicial to his honour or reputation:
Provided that the author shall not have any right to
restrain of claim damages in respect of any
adaptation of a computer programme to which
clause (aa) of sub-section (1) of section 52 applies.
Explanation.--Failure to display a work or to
display it to the satisfaction of the author shall not
be deemed to be an infringement of the rights
conferred by this section.
(2) The right conferred upon an author of a work by
sub-section (1), other than the right to claim
authorship of the work, may be exercised by the
legal representatives of the author.
50. It is pertinent to note that initially this court had
granted interim order against the defendants. Thereafter, the
I.A., filed under Order 39 rule 1 & 2 CPC was dismissed. The
63
OS.No.6676/2017
said order was challenged before Hon'ble High Court of
Karnataka. The Hon'ble High Court of Karnataka dismissed
the appeal in MFA.No.7420 & 7421/2018 dtd.13.12.2018
reported in MANU/KA/5551/2018. The relevant observations
are extracted here under:
Para 7. The learned counsel appearing for
respondents/defendants canvassed the points that
Sri. Manna Dey never claimed copyright in respect of the subject matter songs, and the plaintiff, being his daughter cannot assert any kind of copyright. He referred to plaint where cause of action for suit is stated to have firstly arisen three years prior to date of suit. It is evident that she did not take action for three years. Delay defeats rights, and this delay itself can be considered to dismiss the appeal. He further argued that Late Manna Dey was not the author for 12 songs, this is not disputed. He only sang those songs and he did not have copyright over these songs. Out of 12 songs, 4 songs were part of cinematograph films, and the producers of those films assigned their interest in favour of defendants. With regard to two songs composed by Manna Dey, he executed two agreements assigning interest in favour of defendants and therefore the plaintiff has no right to claim copyright. He also argued that while deciding an application for temporary injunction relating to copyright, equitable considerations do not arise as copyright is statutory. With regard to Section 31C of the Copyright Act, the learned counsel for the respondent argued that the said Section is not applicable because the CD that the defendants have released is not a cover version. These being the circumstances, the plaintiff cannot claim an order of temporary injunction. A perusal of the impugned order shows that the court below has rightly come to 64 OS.No.6676/2017 conclusion that there is no case for granting temporary injunction. When the discretion appears to have been exercised properly, the appellate court should not interfere. Therefore he argued for dismissing the appeal.
Para 8. I have considered the points of arguments. The plaintiff is complaining of infringement of copyright by the defendants in respect of 14 songs. It is undisputed fact that out of the 14, only 2 songs were composed by Manna Dey and therefore according to section 2(d)(ii), he was the author of those two songs. The other 12 songs were not composed by Manna Dey and therefore he was not the author. Of these 12 songs, the songs at Sl.Nos. 4, 6, 7 and 9 were part of cinematograph films. For these reasons even if all these 12 songs had been sung by Sri Manna Dey, the plaintiff cannot say that her father was the author or the first owner of the songs. The copyright vests with the producer of the cinematograph films and the authorship with the composer of those songs. So far as 2 songs composed by Manna Dey is concerned, the defendants rely upon two agreements referred to above. According to the plaintiff these agreements were only performance agreements for a particular period and not agreements showing assignment of his rights by Manna Dey. It is very difficult to accept this argument at this stage because the clauses 6, 7, 8 and 9 make it very clear that the predecessor in interest of the defendant company had been given absolute discretion to manufacture, sell, catalogue the records of all or any of the titles in any part of the world. In fact, clause (8) further makes it clear that the company was the owner of the original plate within the meaning of the Indian Copyright Act, 1914. Though in clauses (1) and (2) of the agreement there is a reference to the word 'performance', if the 65 OS.No.6676/2017 agreement as a whole is read, it is possible to interpret that Sri. Manna Dey had agreed to give performance as per the requirement of Gramophone Company besides agreeing to other conditions envisaged in clause 6 and onwards. The learned counsel for the appellant has relied upon two judgments in the case of K.P.M.Sundhram and Deshmukh and Company (supra), In these two judgments it is held that if the consideration under the agreement consists of payment of royalties or a share of profits rather than a sum of money as downright payment, it is difficult to say that there is assignment of interest. I do not think that at the time of deciding an application for temporary injunction, such a minute examination of the terms of the agreement is permitted and such an exercise can be taken up only after conclusion of recording of evidence. The agreements produced by the respondents show a kind of assignment by Sri Manna Dey for consideration and therefore these two agreements cannot be ignored now by simply holding them as performance agreements.
Para 12. The learned counsel for the respondent has referred to judgment in Super Cassettes Industries Limited vs Mr.Chintamani Rao and Others [2011 SCC Online Del 4712] a case decided by the Hon'ble High Court of Delhi which has held that copyright is a statutory right and no person is entitled to copyright in any work otherwise than in accordance with the provisions of the Act. Therefore, applying this ratio, it can be very well held that the plaintiff cannot claim copyright of her father based on a power of attorney said to have been executed by her father. The plaint does not show existence of statutory right in her favour. Thus I find that the plaintiff has not made out a case for grant of temporary injunction as has been prayed for in the 66 OS.No.6676/2017 two applications filed by her. The trial court has come to right conclusion that a case for grant of temporary injunction does not exist. The reasons given by trial court cannot be disturbed even though it is possible to take other view by upholding the plaintiff's case. Therefore, I conclude that these two appeals should be dismissed. Accordingly, they are dismissed.
51. In Vidyadhar Vishnu Panth Vs. Manikrao - reported in 1999 (3) SCC 573 it is held at para 17 Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand 67 OS.No.6676/2017 and Ors., drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.
In Janki Vashdeo Bhojwani Vs. Indusind Bank - reported in 2005 (2) SCC 217 it is held at para 17 & 18 that On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2 WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors. AIR 1998 Raj.
185. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the 68 OS.No.6676/2017 plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.
In Indian Performance Right Society Vs. Eastern Indian Motion Pictures reported in 1977(2) SCC 820 wherein it is held in para 17 & 24 This takes us to the core of the question namely, whether the producer of a cinematograph film can defeat the right of the composer of music .... or lyricist by engaging him. The key to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricist for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric there- fore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein 'and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work. It is, therefore, crystal clear that the rights of a music composer or ....lyricist Can be defeated by the producer of a cinematograph film in the manner laid down in 69 OS.No.6676/2017 provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plain- tiff in pursuance of his engagement to give effect to certain situations in the drama entitled "Lady Andley's Secret", which was to be put on the stage was not an independent composition but was merely an accessory to and a Fart and parcel of the drama and the plaintiff did not have any right in the music.
A somewhat un-Indian feature we noticed in the Indian copyright Act falls to be mentioned. Of course, when' our law is intellectual 'borrowing from British reports, as admittedly it is, such exoticism is possible. 'Musical work', as defined in Sec.2(p) reads:
"(p) musical work means any combination of melody and harmony or either of them printed, reduced to writing or otherwise graphically produced or reproduced."
Therefore, copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful rendering. It is the melody or harmony reduced to print, writing or graphic form. The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the rags, the bhava, the lava and the sublime or exciting singing. Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal. Strangely enough, 'author', as defined in Sec.2(d), in relation to a musical work, is only the composer and Sec.16 confines 'copyright' to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitlement of the musician or group of 70 OS.No.6676/2017 musical artists to copy- right is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law. I make this observation only because act in one sense, depends on the ethos and the aesthetic best of a people; and while universal protection of intellectual and aesthetic property of creators of 'works' is an international obligation, each country in its law must protect such rights wherever originality is contributed. So viewed, apart from the music composer, the singer must be conferred a right. Of course, law-making is the province of Parliament but the Court must communicate to the lawmaker such infirmities as exist in the law extant.
In Super cassettes Industries Ltd. Vs.Chinthamani Rao reported in 2011 SCC Online Del.4712 it is held in para 23 that Copyright is a statutory right, and no person is entitled to claim copyright or any similar right in any work, otherwise than in accordance with the provision of the Act. (See Section
16). Therefore, whatever rights are claimed by the parties, must spring from the Act and there are no equitable rights which either party can claim under the law of copyright. I, therefore, have no hesitation in rejecting the argument of Ms. Pratibha Singh that the singer has an independent right to perform his/her recorded song on a public stage without obtaining the license from the copyright holder in the original literary and musical works. There is no equitable right, which inheres in the singer of the song, to perform the song in a 71 OS.No.6676/2017 public forum, only because it may be the same singer who may have recorded the song initially, which may have become popular.
In Smt.Mannu Bhandari Vs. Kala Vikas Pictures (P) Ltd. & Another reported in ILR (1986) I Del.191 it is held in para 10 that What is the substance of the protection of special rights guaranteed by Section 57, Sub-Clause (a) of Clause (1) of the Section prohibits any distortion of mutilation of the author's work. The words "other modification" appearing in the sub-clause (a) will have to be read ejusdem generis with the words "distortion" and "mutiliation". The modification should not be so serious that the modified form of the work look quite different work from the original. "Modification" in the sense of the perversion of the original, may amount to distortion or mutilation. But, there can be. a modification simplicitor such as where 'A' is changed to 'B', both being quite, distinct. Sub- clause (a) thus provides inviolability to an intellectual work. Sub-clause (b) provides for remedies for protection of honour and reputation of the author. The bundle of rights and remedies provided by Section 57 is in tune with the modem development in law relating to protection of intellectual property of the author and the international agreements and treaties in that regard. The learned Judge is not right in saying that because the modifications are permissible under 72 OS.No.6676/2017 the Contract of Assignment the Plaintiff had failed to prove the breach of Section 57.
52. It is settled principle of law as held by House of Lords, in Vickers Sons and Maxim Ltd. Vs. Evans(1910) AC 444 as quoted with approval by the Hon'ble Apex Court in Jamma Masjid, Mercara Vs. Kodimaniandra Deviah and Ors. AIR 1962 SC 847 and reiterated in Shiv Shakti Co-operative Housing Society Vs.Swaraj Developers, AIR 2003 SC 2434 and in a catena of decisions that the court cannot read anything into a statutory provision which is plain and unambiguous. On bare perusal of the above said provisions and aforesaid case laws, it is evident that with respect to copyright in respect of the songs, if the songs are made in the films, it is the producer of the film, who is considered an author and the owner of the copyright as per Sec.2(d)(v). If it is a musical work as defined under Sec.2(d)(ii), it is the composer of the music, who would be the owner in respect of the songs. Further, there is a specific bar under Sec.16 of Copyright Act that no person shall be entitled to copyright except provided under the Act.
53. In the present case, the plaintiff or her father are not composers, producers or the lyricist of the alleged infringing 12 song in a CD containing 14 songs. But for song No.11 -Ei Kule Aamui Oi Kule Tumi Maaj Khane Nodi Boye 73 OS.No.6676/2017 Jay and song No.8 - Ei to Sedin Tumi Amare Bochale Amar Abuj Bedona as mentioned in para 14 of the plaint, there is no dispute by the parties that the Manna Dey is the composer of these songs. Therefore, it can be said that Late Manna Dey is the author of these two songs as per Sec.2(d)(ii). However, on perusal of Ex.D15, 15(a) and Ex.D16 & 16(a), documents on the inlays of the songs it shows that the same are of the year 1966 & 1976 and the same has been produced from the custody of the 1st defendant. Plaintiff has not produced the original plates pertaining to the above said songs. Therefore, the 1st defendant is the copyright owner of these plates by virtue of Sec.2(d)(vi) of the provisions of Copyright Act 1957 (Original Act prior to amendment in 1994), as the provisions of Copyright Act, prior to amendment in 1994 was providing that in relation to record the owner of the original plate from which the record is made at the time of making of the plate. Further, when the composer does any work in course of his employment of contract, the employer becomes the owner of the copyright. It is also settled principle of law as held in Indian Performing Right Society as stated supra, that when a film producer commission a composition of music or lyricist for reward or consideration for the purpose of film or composition of music or lyrics, he become the 1 st owner of the copyright. Hence, the contention of the plaintiff that Manna Dey is the copyright owner of these two songs cannot be 74 OS.No.6676/2017 accepted. If at all the plaintiff is entitled for any right under the Contract of Manna Dey with the 1st defendant, they may seek for enforcement of contractual obligations as per law. However, the plaintiff cannot claim the right over the songs for which her father was only a singer for 14 songs and composer for only two songs for which 1st defendant is having a right. The entire Copyright Act do not vest any right with the singer over the songs sung by a singer.
54. Even if it is considered that the plaintiff's father was the composer of the other 12 songs, apart from the Ex.P23 & 24 extract of the book, the plaintiff has not produced any documents to show that Manna Dey himself has composed these songs. Further the plaintiff has not examined the author of these books before the court. In the absence of the same, it cannot be believed that Manna Dey himself has composed these songs. When the plaintiff has not produced any documents, the documents produced by 1st defendant at Ex.D3 to D18 will more probabilise the case of the 1 st defendant that they are the copyright owner of 10 songs and other 4 songs of the films are owned by the producer of the four films.
55. In the present case, admittedly, the plaintiff has come before the court by alleging that the defendants have infringed the copyright by producing cover versions. On bare 75 OS.No.6676/2017 perusal of Sec.31(c), it provides rights only for the owner of the copyright and not for the singer of the songs. If any person desires of making cover versions, they need to obtain license or consent of the owner of the right in the work. As the plaintiff is not the owner of 14 songs in the CD, the contention of the plaintiff, that defendants have not obtained consent from the legal heir of Manna Dey do not arise for consideration. Even if it is considered that Manna Dey is the copyright owner of the songs, when the exact song is reproduced or when record embodying the same recording is made as defined under Sec.2(m)(i) or (iii) of the Act, then only it becomes an infringing copy and the same amounts to infringement. In the present case, there is no exact reproduction of the original 14 songs sung by late Manna Dey. Therefore, the question of infringement do not arise for consideration.
56. In the present case, the plaintiff has produced the GPA dtd.26.8.2012 before the court at Ex.P4. The same clearly shows that Late Manna Dey has executed the said document infavour of plaintiff and has given power to do the things on his behalf in respect of immovable property, bank accounts, royalty sharing agreement with HMV(Saregama), to take possession of vehicles, to take possession and custody of awards and to stop people from misrepresentation in any manner. Therefore, the contention of the defendants that 76 OS.No.6676/2017 Manna Dey has not authorised the plaintiff is not tenable, However, as Manna Dey is expired on 24.10.2013, GPA has also come to an end upon the death as there is nothing to show that the GPA is irrevocable.
57. Further, on perusal of Ex.D20 & D21, it clearly shows that the Late Manna Dey has transferred his rights over the musical work for production, reproduction, sale, use in favour of 1st defendant on the basis of Royalty at the time of agreement on 6.5.1957 and 17.12.1965. Therefore, it can be held that Late Manna Dey had transferred his rights as contained in Ex.D20 & D21 Agreements. However, the said agreements do not disclose any of 14 songs. However, as the 1st defendant has produced the inlays at Ex.D3 to D18, it can be said that by actively participating in singing songs, for a record though a plate, it shows that he has consented for reproduction, sale, and use in favour of 1 st defendant. Further, there is nothing on record to show that Manna Dey had himself had filed a suit against the 1 st defendant claiming rights over the original 14 songs sung by him.
58. With regard to the claim for damages, when the plaintiff has not proved that Late Manna Dey was the Author/Copyright owner, the question of considering damages do not arise for consideration. Further, there are no records produced to show that plaintiffs sustained damages.
77OS.No.6676/2017
59. Further, the plaintiff has contended that 1st defendant has violated the author's special right. On perusal of the Sec.57 of Copyright Act, it is evident that author of the copyright even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation. In the present case, when the plaintiff has not proved that Late Manna Dey was the author/copyright owner of the songs, the question of considering special rights do not arise for consideration. Even if it is considered that the plaintiff's father was author of the songs, there is no evidence on the record to show that there is distortion, multilation, modification which have made prejudicial to the honour and reputation late Manna Dey. The plaintiff has also not examined any followers of the song of Manna Dey alleging the distortion, mutilation of the songs which caused loss to honour and reputation of late Manna Dey. Therefore, the contention of the plaintiff that 1 st defendant has violated the author's special right by remixing and adopting for monitary gain for recording in CD sung by Smt.Swagathalakshmi is not tenable.
78OS.No.6676/2017
60. Further, as there is no dispute as to composition of two songs 'Ei To Sedin Tumi' and 'Ei Kule Aami Aar' by Late Manna Dey, Addl. issue No.2 has to be answered partly in the affirmative with respect to composition of the above two songs. Therefore, I answer issue No.1, 5 & 6 in the affirmative and Issue No. 2 and Addl.Issue No.1 in negative and Issue No.4 and Addl.Issue No.1 in partly affirmative.
61. Issue No.7 to 10: Inview findings on the above issues, the plaintiff is not entitled for the reliefs sought in the suit. Hence, I answer issue No.7 to 10 are in the negative.
62. Issue No.11: In the result, I proceed to pass the following:
O RDE R Suit of the plaintiff is hereby dismissed. No order as to costs.
Draw decree accordingly.
[Dictated to the Judgment Writer directly on computer, computerised, and print out taken by him, corrected and then pronounced by me, this day the 20th December 2021.
(SADANANDA NAGAPPA NAIK) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU 79 OS.No.6676/2017 AN N E XU RE
1. No.of witnesses examined on behalf of plaintiff/s :
PW1 : Jnan Ranjan Deb
2. No.of documents marked on behalf of plaintiff/s :
Ex.P1 : Special Power of Attorney dtd.28.1.2020 Ex.P2 : Audio CD named 'Hoyto Tomari Janya' Bengali Songs Ex.P3 : Poster with picture of late Manna Dey Ex.P4 : GPA dtd.26.8.2013 Ex.P5 : Original death certificate of Manna Dey Ex.P6 : Death certificate of Smt.Sulochana Manna Dey Ex.P7 : Certified true copy of death certificate of Smt. Shuroma Herekar Ex.P8 : Printout of article of Obituary Ex.P9 & 10: email copies dtd.28.4.2016 Ex.P11 : email copy dtd.10.8.2017 Ex.P12 : Reply email dtd.7.9.2017 Ex.P13 : Family Tree certificate dtd.23.3.2020 Ex.P14 : True copy of letter written by Manna Dey Ex.P15 : Affidavit dtd.19.6.2013 Ex.P16 : Copy of email dtd.18.12.2020 Ex.P17&19: True copy of condolence letters dtd.24.10.2013 Ex.P18 : True copy of condolence letter dtd.10.12.2013 Ex.P20 : Copy of email dtd.19.1.2020 Ex.P21,21(a): Copy of letter dtd.10.6.1997 & its translation Ex.P21(b) : Certificate of authenticity Ex.P22 : Copy of 2 photographs downloaded from internet Ex.P23 : Copy of relevant paragraphs of auto biography Ex.P24,24(a): Copy of relevant chapters of Sur Samrat Manna Dey and translation copy Ex.P25 : Copy of cover of CD & back cover Ex.P26 : The promotional photographs by 1st defendant Ex.P27 & 28: Screeshots of YouTube channel.80
OS.No.6676/2017
3. No. of witnesses examined on behalf of defendant/s :
DW1 : Yash Asai
4. No. of documents marked on behalf of defendant/s :
Ex.D1 : Medical certificate dtd.24.1.2021 Ex.D2 : CD Containing songs Ex.D3 : Inlay of the album Amar Bhalobasar Rajprasade Ex.D3(a) : Translation of D3 Ex.D4,4(a): Inlay of the album containing song Char Deljaler Modhye Nanan Drishyake with translation Ex.D5,5(a): Inlay of the album containing songEi shahar Theke Aaro anek dure with translation Ex.D6, 6(a):Inlay of the album containing songHoytoTomar Janya with translation Ex.D7,7(a): Inlay of the album containing song Jago, Natun Phabhat Jago with translation Ex.D8,8(a): Inlay of the album containing song Ke tumi tandradharani with translation Ex.D9,9(a): Inlay of the album containing song Manush Khun Hole pare with translation Ex.D10,10(a): Inlay of the album containing song Na Na Jeona Rakho Jachnake with translation Ex.D11,11(a): Inlay of the album containing song O Chand Sample Rekho with translation Ex.D12, 12(a): Inlay of the album containing song Paro Jodi Phire Eso with translation Ex.D13, 13(a): Inlay of the album containing song Shudhu Ekdin Bhalobasa with translation Ex.D14, 14(a): Inlay of the album containing song Tumi Nijer Mukhei Bolle Jedin with translation Ex.D15, 15(a) Inlay of the album containing song Ei To Sedin with translation Ex.D16, 16(a):Inlay of the album containing song Ei Kule with translation 81 OS.No.6676/2017 Ex.D17, 17(a)Inlay of the album containing song Cheba Akash Notun Ramdhonuwith translation Ex.D18, 18(a): Inlay of the album containing song Teen Purusher Gaan with translation Ex.D19 : Statement of account Ex.D20 : Original agreement dtd.17.11.1965 Ex.D21 : Original agreement dtd.06.05.1957 XVIII Addl. City Civil Judge Bangalore City.
82 OS.No.6676/2017 Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
O R DE R Suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore