Bombay High Court
Rupalli P. Shah vs Adani Wilmer Ltd & Ors on 8 May, 2012
Author: S.C.Dharmadhikari
Bench: S.C.Dharmadhikari
1
nms-lod-719-12-judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO.719 OF 2012
IN
SUIT (L) NO.540 OF 2012
Rupalli P. Shah .. Plaintiff
versus
Adani Wilmer Ltd & Ors .. Defendants
Mr.R.M.Kadam, Sr.Adv a/w A.S.Kamat for the plaintiff.
Mr.M.R.Baya for defendant No.1.
Mr.Virag Tulzapurkar, Sr.Adv a/w Mr.Chakrapani Mishra and R.A.Iyer i/by
M/s.Khaitan & Co for defendant No.2.
CORAM : S.C.DHARMADHIKARI, J.
RESERVED ON : 24th APRIL 2012.
PRONOUNCED ON : 8th MAY 2012.
JUDGMENT:
. Since entire material is placed before the Court, at this ad-interim stage itself, the Motion is heard finally and disposed off by this order.
2} This Notice of Motion is filed by the plaintiff Rupalli P. Shah ::: Downloaded on - 09/06/2013 18:35:13 ::: 2 nms-lod-719-12-judgment.doc claiming to be a Executrix of the last Will and testament of one O.P. Ralhan (the said deceased), who was the producer of various cinematographic films. He expired on 20 th April 1999 leaving behind the plaintiff and defendant No.4 - Manorama Omprakash Ralhan and defendant No.5 - Munesh @ Ricky Ralhan, as his legal heirs. The 1 st defendant claims to be a licensee in respect of a song "Meri Duniya Hai Maa Tere Aanchal Mein" (hereinafter referred to as "the said Song"). It is claimed that the rights in respect of the said song are acquired by the 1 st defendant from defendant No.2 "Saregama India Ltd", a company registered under the Companies Act, 1956 having its registered office at the address mentioned in the cause title. The defendant No.3 is the Court Receiver, High Court, Bombay, who has been appointed as Receiver in Suit No.3748 of 2000 pending before this Court in respect of the copyright vested in the cinematographic films belonging to the said deceased.
3} The suit is filed by the plaintiff on behalf of herself and defendant Nos.4 and 5, seeking to restrain the defendant Nos.1 and 2 from infringing the copyright in the songs from the films belonging to the said deceased and now vested in the estate of the said deceased, of which the ::: Downloaded on - 09/06/2013 18:35:13 ::: 3 nms-lod-719-12-judgment.doc plaintiff claims to be executrix. Thus, no reliefs are claimed against defendant Nos.3 to 5.
4} It is stated that the deceased had produced several cinematographic films, details of which are set out in the para 3 of the plaint. In the year 1969 he had produced a film called "Talash". In that film, inter alia, a song featured which is entitled "Meri Duniya Hai Maa Tere Aanchal Mein"
, namely, the said Song. It is alleged in the plaint that the aforesaid film and the said song were super-hit. The same is popular even today. The songs from the film "Talash" including the said song has immense recall value amongst cine and music lovers. Therefore, these songs are sung at various functions, played over radio channels and even performed live by artists. The copyright in the aforesaid film and songs exclusively vests in the estate of the said deceased.
5} The deceased vide Agreement dated 19th December 1962 entered into with the predecessors of defendant No.2, had granted certain rights to exploit the music in the songs of the films belonging to the deceased for a limited period. By further Agreements dated 19 th January 1965, 24th April 1967, 7th January 1970, 19th December 1972, 15th January 1977 and ::: Downloaded on - 09/06/2013 18:35:13 ::: 4 nms-lod-719-12-judgment.doc 27th April 1980, the rights of exploitation vested in the songs of films produced by the said deceased, were granted and/or extended from time to time in favour of the predecessors of the defendant No.2 for the terms mentioned therein. Annexures C-1 and C-2 to the plaint are copies of the 1977 and 1980 Agreements. It is stated that though defendant No.2 was under obligation to provide for a royalty statement to the deceased from time to time, that was always delayed and/or neglected. Upon the demise of the said deceased, the plaintiff- executrix was unaware of all the rights granted by her father. In and around January 2006, she was informed by defendant No.2 that the said defendants wanted to exploit rights in the films of the deceased, details of which are mentioned in para 3 of the plaint. A copy of the said Letter dated 9 th January 2006 addressed by defendant No.2 to the plaintiff is annexed as Annexure D and the plaintiffs reply thereto is dated 18th January 2006, Annexure E to the plaint. It is stated that in view of the impending disputes within the family of the said deceased, the plaintiff did not enter into any arrangement with respect to the copyright subsisting in the music and songs in the films belonging to the said deceased.
6} On 12th May 2010, the plaintiff by her advocate's letter of even ::: Downloaded on - 09/06/2013 18:35:13 ::: 5 nms-lod-719-12-judgment.doc date, informed the defendant No.2 that they had failed and neglected furnishing of the statements and also failed to pay the royalty amounts due and payable to the estate of the said deceased. It was also informed that since none of the Agreements referred to above and executed between the deceased and defendant No.2 were valid or subsisting, defendant No.2 ought to cease and desist from dealing in any manner whatsoever, with the rights of the said deceased. A copy of this letter is Annexure F to the plaint. In reply thereto, the defendant No.2 disputed the stand of the plaintiff and called upon the plaintiff to furnish copies of the prior correspondence. Therefore, there was another letter addressed by the plaintiff's advocate dated 26th August 2010.
7} It is stated that in view of some litigation concerning the estate of the deceased, the plaintiff could not follow up the matter with defendant No.2. However, in December 2011 the plaintiff came across a commercial advertisement on television issued by defendant No.1, wherein, they used the said song from the film "Talash" and the use of this song is unauthorised and without permission of the estate. That constitutes infringement of the copyright and, therefore, notice through advocate was given by the plaintiff to defendant No.1 to cease and desist from using the ::: Downloaded on - 09/06/2013 18:35:13 ::: 6 nms-lod-719-12-judgment.doc said song on 5th December 2011 and by their letter dated 13 th December 2011, the defendant No.1 informed the plaintiff that they had obtained licence to use the said song from defendant No.2 who had represented to them that they own and control copyright in the said song. Thereafter, correspondence followed between the plaintiff and defendant No.1 under which the defendant No.2 claimed that they were sole and absolute owners of the copyright in the sound recordings and the underlying musical and literary works of the songs of the film "Talash" and have exclusive rights of exploitation thereof. It is such correspondence and the stand of the defendant Nos.1 and 2 that has resulted in the plaintiff instituting the present suit claiming, firstly, a permanent injunction in terms of prayer clause (a) and vide prayer clause (b) restraining creation of any third party rights in any of the songs, musical works, musical rights arising out of the cinematographic films produced by Mr.O.P.Ralhan and particularly set out in para 2. There is also a claim for damages.
8} It is in furtherance of such a suit which is filed in this Court by the plaintiff on 1st March 2012, that the application for interim relief and particularly temporary injunction in terms of prayer clause (a) of the Notice of Motion and prayer clause (b) is filed.::: Downloaded on - 09/06/2013 18:35:13 ::: 7
nms-lod-719-12-judgment.doc 9} In reply to this Notice of Motion and after receipt of the papers and proceedings, an affidavit of one Yash Asai, the Manager- Legal of defendant No.2, is filed. In paras 3 and 4 of the said affidavit, this is what is stated:
"3 At the outset, I say and submit that this Hon'ble Court has no jurisdiction to entertain and try the suit. I say at the outset that the plaintiff is guilty of suppresio very as she has failed to annex the relevant Agreement between the plaintiff's father and the defendant No.2, which governs the rights of the defendant No.2 to the alleged infringing work. Annexed hereto and marked as Exhibit A is a copy of the Agreement dated 24th April 1967 between M/s.Ralhan Productions, the interests whereof, the plaintiff purports to represent and the defendant No.2's predecessor in title and interest, the Gramophone Company of India (Private) Ltd ("Agreement"). Defendant No.2 has succeeded to the said agreement in place of the said Gramophone Company of India Pvt Ltd. This Agreement relates to the work in question and governs the transaction. The agreements annexed to the plaint do not relate to the present suit work or apply to the transaction.
4 I say that as per the terms of the Agreement, the ::: Downloaded on - 09/06/2013 18:35:13 ::: 8 nms-lod-719-12-judgment.doc plaintiff is the owner under the Copyright Act, 1957 ("Act") of the original plate of the recordings of the works from the films of M/s.Ralhan Productions, made as per the terms of the Agreement. I say that the said works from the films of M/s.Ralhan Productions include all the works from the time of M/s.Ralhan Productions made within the period of
2 (two) years commencing from 5 th December 1966. I say that by a further extension, the said period of 2 (two) years was extended by a further period of 1 (one) year, thus including all the works from the films of M/s.Ralhan Productions within a period of 1 (one) year commencing from 5th December 1968 within the ambit of the rights of the defendant No.2. I say that in any case, the defendant No.2 has been assigned the rights to the said works and hence the defendant No.2 is well within its rights to use the subject work and grant license in respect thereof and the plaintiff is not entitled to seek any restraint on the right of the defendant No.2 in respect of the said work. Hereto annexed and marked as Exhibit B is a copy of the letter dated 28th November 1968 extending the said period of 2 (two) years of the Agreement. There is no infringement by the defendant No.2 as alleged or at all. The defendant No.2 was/is entitled under the said agreement to rights which belong to the defendant No.2 and not to the plaintiff/estate of the late Mr.O.P.Ralhan. The defendant No.2, as owner of those rights, is entitled to exercise those rights without any interference by the plaintiff. The defendant No.2 is not ::: Downloaded on - 09/06/2013 18:35:13 ::: 9 nms-lod-719-12-judgment.doc infringing any alleged rights of the plaintiff."
10} Apart from this, upon the grounds of delay and estoppel, the relief is opposed. In para 6 of this affidavit, it is stated that the defendant has been making payment of royalty to M/s.Ralhan Productions and which have been received by them until May 2010. Further accounts of the royalty have been also provided and in para 6 of this affidavit, reliance is placed on certain figures and letters, copies of which are annexed as Annexures C and D to this affidavit.
11} In these circumstances and by relying on the claim in relation to copyright and contending that the Agreement dated 24 th April 1967 grants the rights absolutely in favour of defendant No.2, that it is submitted that the Motion be dismissed.
12} There is an additional affidavit which is filed in reply to the Notice of Motion and in this additional affidavit what is contended is that there are certain admissions in letter dated 18 th January 2006 of the plaintiff and, therefore, once again the plea of estoppel is raised.
13} In the rejoinder affidavit of the plaintiff, copies of which are served, ::: Downloaded on - 09/06/2013 18:35:13 ::: 10 nms-lod-719-12-judgment.doc what is essentially urged is, that the Agreement dated 24 th April 1967 is neither suppressed nor misread by the plaintiff. The defendant No.2 does not have any assignment and/or subsisting rights in respect of the works of Mr.O.P.Ralhan. The Agreement was for a limited tenure i.e for two years and extended by one year, during which defendant No.2 was given right to exploit the recordings made under the Agreement. In any event, that Agreement is limited to selling of records manufactured during the period of three years of the subsistence of the said Agreement and beyond the period of three years only such records which are manufactured within the period of three years could be sold. There is no further entitlement much less for manufacturing and selling the records.
14} Thus, on each counts, namely, on the rights in the works, suppression of material facts and on the point of limitation, all the allegations are denied and it is claimed that the Notice of Motion be made absolute.
15} Based on this material, that I have heard the detailed submissions of the senior counsel appearing for the plaintiff and the contesting defendant No.2.
::: Downloaded on - 09/06/2013 18:35:13 ::: 11nms-lod-719-12-judgment.doc 16} Mr.Kadam, learned senior counsel appearing on behalf of the plaintiff submits that the reasons for filing the suit have been set out in the plaint. Mr.Kadam submits that if the order passed by this Court in Notice of Motion No.2700 of 2000 in Suit No.3748 of 2000 is carefully perused, it would be apparent that the plaintiff is fully empowered to protect the estate of the deceased. In any event, the rights have been surrendered to the Court Receiver. It is submitted by Mr. Kadam that the nature of the claim is such that it cannot be said to be covered by the order of this Court in the above referred suit. Alternatively, it is because of inaction on the part of the Court Receiver in not protecting the rights in the works of the deceased, that the plaintiff was required to file this suit. These are, in brief, the reasons for institution of the suit.
17} Mr.Kadam submits that the entire controversy is based on the construction and interpretation of the Agreement relied upon by the defendant No.2. Mr.Kadam submits that the rights in favour of the defendant No.2 are not all inclusive. If the Agreement dated 24 th April 1967, a copy of which is at Exhibit 1 to the affidavit in reply is carefully perused, it is clear that consideration for the Gramophone Recording ::: Downloaded on - 09/06/2013 18:35:13 ::: 12 nms-lod-719-12-judgment.doc Rights and record sale is envisaged in Clauses 5 and 6. By Clause 7, the right to make record is the only right assigned in favour of defendant No.2 by M/s.Ralhan Productions. Clauses 6, 7 and 8 of the Agreement be read together and in that light Clause 10 be interpreted.
18} Mr.Kadam submits that this Agreement is premised on the fact that the rights in the underlying work, namely, lyrics, song composition and music are that of M/s.Ralhan Productions. The right under that Agreement is restricted to Gramophone Recording Rights and linked to the set of records. By no stretch of imagination, the right to incorporate the gramophone recording in a film is covered by the said Agreement.
Even if the definition of the term "copyright" and the nature of the copyright in the sound recording is taken in to consideration, still, what is evident by the reading of this Agreement is that other rights in the sound recording remain with M/s.Ralhan Productions. The defendant No.2 cannot exceed its rights by relying on Clause 10 of the said Agreement as there is no assignment of rights in its favour as claimed. Mr.Kadam submits that what could be covered by Clauses 11, 12 and 13, is the right to reproduce the recording in audio format, playing audio tape but beyond that nothing else could be claimed by the 2 nd defendant. Even ::: Downloaded on - 09/06/2013 18:35:13 ::: 13 nms-lod-719-12-judgment.doc reliance on the term "plate" and its definition in the Copyright Act, 1957 is of no assistance to the 2 nd defendant as very limited and restricted rights have been covered and crystalised under this Agreement. It cannot be said that by accepting royalty the estate has given up the rights under the underlying works or in the sound recording as well. In fact, Clause 10 of the Agreement is consistent with what 2 nd defendant gets under Clause 7 of the same. It is in these circumstances, that Mr.Kadam submits that the definition of the term "plate" appearing in section 2(t), definition of term "communication to the public" appearing in section 2(ff) of the Copyright Act, 1957 and section 14(1)(e) of the said Act, would not enable the defendant No.2 to expand the ambit and scope of the said Agreement. Even the letter dated 9th January 2006 must be seen as an offer recognising that non-physical sources and rights are not with defendant No.2. Hence, a modification of the Agreement has been suggested by this letter vide para 13. If this right had already accrued, vested and was subsisting under the Agreement dated 24 th April 1967, then, there was no occasion for the defendant No.2 to have made this offer. This clearly means that such a right is not available under the Agreement. Mr. Kadam submits that no modification of the Agreement had been agreed by the plaintiff and, therefore, there is no permission to ::: Downloaded on - 09/06/2013 18:35:13 ::: 14 nms-lod-719-12-judgment.doc sub-licence to others the exploitation in non-physical format/medium. In such circumstances, by the own showing of defendant No.2 it could not have conferred any rights in the said song in favour of the defendant No.1.
19} In support of his submissions Mr.Kadam has placed reliance on the definition of the term "record" as appearing in section 2(w) of the Copyright Act, 1957, which is omitted. He has also placed reliance upon the amendment to the Copyright Act, 1957 and particularly in relation to the definition and substantive provision in relation to "sound recording".
20} On the other hand, Mr.Tulzapurkar, learned senior counsel appearing on behalf of the contesting defendant No.2 firstly submits that the arguments and submissions of Mr.Kadam appearing on behalf of the plaintiff, are not based on the averments in the plaint. Inviting my attention to the averments in the plaint and particularly paras 7 and 12 thereof, Mr.Tulazapurkar submits that the plaintiff has understood that, the rights of the 2nd defendant in the musical works subsisting in the songs of the movies produced by the said deceased and permitted to be exploited by defendant No.2, had already come to an end. Thus, it is not ::: Downloaded on - 09/06/2013 18:35:13 ::: 15 nms-lod-719-12-judgment.doc as if the plaintiff is pleading that the defendant No.2 has not been conferred any rights under the Agreement of 1967 or that this Agreement was not in existence. The argument is that the said Agreement and the arrangement thereunder has already come to an end and the 2 nd defendant is illegally and wrongly continuing the exploitation of the copyright without permission of the estate.
21} A prior para, namely, para 7 of the plaint would also indicate that the plaintiff was aware of the broad arrangement and the wording of the clauses of the Agreement, which is inclusive.
22} Even the chart referred to in para 3 and the ultimate prayers at page 17 of the plaint would indicate that the controversy is not whether any rights were conferred or not. The controversy is whether the rights are subsisting or not. In such circumstances, the cause of action in the plaint is entirely different than what is argued. In fact, Mr.Tulzapurkar submits that now the plaintiff seeks to correct herself by submitting that the Agreement was for two years and thereafter there was an extension.
There is a misconception with regard to Clause 2 of the Agreement, but that has now been clarified by the concession that the Agreement has not ::: Downloaded on - 09/06/2013 18:35:13 ::: 16 nms-lod-719-12-judgment.doc come to an end by flux of time. Mr.Tulzapurkar has invited my attention to the notices preceding the suit at pages 103 and 104 of the paperbook and particularly para 5 thereof. He has also invited my attention to the letter dated 26th August 2010, Annexure H, page 113 of the paperbook.
Relying on the contents of these documents it is urged that it is improper and erroneous to contend that the rights are not permanent. They do not come to an end after two or three years but are awarded in perpetuity.
Mr.Tulzapurkar has relied upon Clauses 4, 6, 7 and 8 of the Agreement in support of this submissions.
23} Alternatively and without prejudice, Mr.Tulzapurkar has invited my attention to the Agreement Annexure A to the affidavit in reply and the definition of the term "record" appearing therein. He has also invited my attention to section 2(t), section 2(xx), 2(y)(iii) of the Copyright Act, 1957 which defines the terms, viz., "Plate", "Sound Recording" and "work" respectively. Mr.Tulzapurkar has then submitted that sections 13 and 14 (1)(e) of the Copyright Act, 1957 and Clause 7 of the Agreement would have important bearing on the controversy raised before this Court even at this prima facie stage. Mr.Tulzapurkar submits by relying upon all this, that the assignment in favour of the defendant No.2 is absolute.
::: Downloaded on - 09/06/2013 18:35:13 ::: 17nms-lod-719-12-judgment.doc There is no restriction in the copyright of the sound recording of the subject work. It is not proper to urge that the definition of the term "Plate" in the Agreement is only for the purposes of describing the device or equipment, but it defines the concept. The word "record" and the definition of the same in the Agreement is lifted and taken from the Copyright Act, 1957 and if that is contra-distinguished with the term "sound recording" as defined in the said Copyright Act post its amendment in 1994, then, it is clear that the defendant No.2 is now the producer or owner of the copyright in the sound recording. The only construction of the Agreement can be that entire record/sound recording rights have been assigned and transferred in favour of defendant No.2.
Once that is not conditional or restricted, then, there is no question of any infringement or the breach of the copyright. There is nothing in the letter at page 96 of the paperbook addressed by defendant No.2. The said letter must be seen in the backdrop of all Agreements and is only to bring to the notice of the parties that some modifications would be required in the Agreement by passage of time. Para 13 of the said letter at page 98 should not be read in isolation. That it is the understanding of the plaintiff that all rights are transferred in favour of M/s.Saregama and that she or the estate is only entitled to the revenue, is apparent from a ::: Downloaded on - 09/06/2013 18:35:13 ::: 18 nms-lod-719-12-judgment.doc reading of the Statement of Account as on 31 st March 2010, a copy of which is at page 107 of the paperbook. Even the reply affidavit from pages 18 to 25 would indicate that M/s.Ralhan Productions have received the cheque against royalties. This is the revenue generated from sale of the non-physical form of the record and that is shared with the plaintiff.
For all these reasons, Mr.Tulzapurkar submits that there is no substance in any of the contentions of the plaintiff and the Motion deserves to be dismissed.
24} Mr.Tulzapurkar has relied upon judgment of the learned single Judge of the Delhi High Court reported in AIR 2003 Delhi 236 in the case of Prentice Hall India Pvt Ltd vs. Prentice Hall Inc and others and particularly, the observations therein that once the subject Agreement has been worked out for number of years and in the process the parties have acted in a particular manner, then, the course of conduct is relevant for the purpose of ascertaining as to how the parties understood and acted on the Agreement (Para 44, page 246). Mr.Tulzapurkar also relies upon the Work Synchronization Agreement between defendant No.2 and defendant No.1, based on which the song or a portion thereof has been utilised in the jingle or advertisement or publicity material by the defendant No.1.
::: Downloaded on - 09/06/2013 18:35:13 ::: 19nms-lod-719-12-judgment.doc 25} The defendant No.1 has adopted the arguments of Mr.Tulzapurkar.
26} With the assistance of the learned counsel appearing for the parties, I have perused the plaint and the annexures so also the affidvits on record. I have also perused the relevant provisions of the Copyright Act, 1957 and the decisions that have been brought to my notice. The object of the Act is summarised in the following words by the Hon'ble Supreme Court in the case of Eastern Book Company and others vs. D.B.Modak and another reported in AIR 2008 SC 809:
"8 The copyright protection finds its justification in fair play. When a person produces something with his skill and labour, it normally belongs to him and the other person would not be permitted to make a profit out of the skill and labour of the original author and it is for this reason the Copyright Act, 1957 gives to the authors certain exclusive rights in relation to the certain work referred in the Act. The object of the Act is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others. Copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright. A copyright law ::: Downloaded on - 09/06/2013 18:35:13 ::: 20 nms-lod-719-12-judgment.doc presents a balance between the interests and rights of the author and that of the public in protecting the public domain, or to claim the copyright and protect it under the copyright statute. One of the key requirements is that of originality which contributes, and has a direct nexus, in maintaining the interests of the author as well as that of public in protecting the matters in public domain. It is a well-accepted principle of copyright law that there is no copyright in the facts per se, as the facts are not created nor have they originated with the author of any work which embodies these facts. The issue of copyright is closely connected to that of commercial viability, and commercial consequences and implications.
9. The development of copyright law in India is closely associated with the British copyright law. Statute of Anne, the first Copyright Act in England, was passed in 17th century which provided that the author of any book already printed will have the sole right of printing such book for a term mentioned therein. Thereafter, came the Act of 1814, and then the Act of 1842 which repealed the two earlier Acts of 1709 and 1814. The Copyright Act of 1911 in England had codified and consolidated the various earlier Copyright Acts on different works. Then came the Copyright Act of 1956. In India, the first Copyright Act was passed in 1914. This was nothing but a copy of the Copyright Act of 1911 of United Kingdom with suitable ::: Downloaded on - 09/06/2013 18:35:13 ::: 21 nms-lod-719-12-judgment.doc modifications to make it applicable to the then British India. The Copyright Act of 1957, which is the current statute, has followed and adopted the principles and provisions contained in the U.K. Act of 1956 along with introduction of many new provisions. Then came the Copyright (Amendment) Act, 1983 which made a number of amendments to the Act of 1957 and the Copyright (Amendment) Act, 1984 which was mainly introduced with the object to discourage and prevent the widespread piracy prevailing in video films and records. Thereafter, the Copyright (Amendment) Act, 1994 has effected many major amendments in the Copyright Act of 1957.
11. Copyright is purely a creation of the statute under the 1957 Act. What rights the author has in his work by virtue of his creation, are defined in Sections 14 and 17 of the Act. These are exclusive rights, but subject to the other provisions of the Act. In the first place, the work should qualify under the provisions of Section 13, for the subsistence of copyright. Although the rights have been referred to as exclusive rights, there are various exceptions to them which are listed in Section 52.
13. Works in which copyright subsists. - (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say, -
::: Downloaded on - 09/06/2013 18:35:13 ::: 22nms-lod-719-12-judgment.doc
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording, (2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 40 or section 41, apply, unless -
(i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India;
(ii) in the case of an unpublished work other than a work of architecture, the author is at the date of the making of the work a citizen of India or domiciled in India; and
(iii) in the case of a work of architecture, the work is located in India.
Explanation.- In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-
section shall be satisfied by all the authors of the work.
(3) Copyright shall not subsist -
(a) in any cinematograph film if a substantial part of ::: Downloaded on - 09/06/2013 18:35:13 ::: 23 nms-lod-719-12-judgment.doc the film is an infringement of the copyright in any other work;
(b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.
xxx xxx xxx "14. Meaning of copyright- (1) For the purposes of this Act, "copyright" means the exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any
(a) substantial part thereof, namely:-
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 specified in relation to the work in sub-clauses (i) to (vi);::: Downloaded on - 09/06/2013 18:35:13 ::: 24
nms-lod-719-12-judgment.doc xxx xxx xxx "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 -
xxx xxx xxx
(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;
ig xxx xxx xxx "52. Certain acts not to be infringement of copyright.-
(1) The following acts shall not constitute an infringement of copyright, namely:-
(a) .....
xxx xxx xxx
(q) the reproduction or publication of -
(i) ......
xxx xxx xxx
(iv) any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the Court, the Tribunal or other judicial authority, as the case may be;
xxx xxx xxx"
13. Subject to the provisions of Section 13 and the other ::: Downloaded on - 09/06/2013 18:35:14 ::: 25 nms-lod-719-12-judgment.doc provisions of the Act, there shall be a copyright throughout India in original literary work, dramatic, musical and artistic works, cinematograph films and sound recording, subject to the exceptions provided in sub-sections (2) and (3) of Section 13. For copyright protection, all literary works have to be original as per Section 13 of the Act.
Broadly speaking, there would be two classes of literary works : (a) primary or prior works: These are the literary works not based on existing subject-matter and, therefore, would be called primary or prior works; and (b) secondary or derivative works: These are literary works based on existing subject-matter. Since such works are based on existing subject-matter, they are called derivative work or secondary work. Work is defined in Section 2(y) which would be a literary, dramatic, musical or artistic work; a cinematograph film; and a sound recording. Under Section 2(o), literary work would include computer programmes, tables and compilations including computer databases. For the purposes of the Act, Section 14(1) enumerates what shall be a copyright which is an exclusive right, subject to the provisions of the Act, to do or authorize the doing of the acts provided in clauses (i) to (vii) in respect of a work or any substantial part thereof in the case of a literary, dramatic or musical work, not being a computer programme. Section 2(k) defines the `government work' which would be a work which is made or published by or under the direction or control of, amongst others, any ::: Downloaded on - 09/06/2013 18:35:14 ::: 26 nms-lod-719-12-judgment.doc Court, Tribunal or other judicial authority in India. By virtue of this definition, the judgments delivered by the Supreme Court would be a government work. Under Section 17(d), the Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright in a government work. In the absence of any agreement to the contrary, the government shall be the first owner of the copyright in the judgments of the Supreme Court, the same being a government work under Section 2(k). Section 52(1) expressly provides that certain acts enumerated therein shall not constitute an infringement of copyright and sub-clause (iv) of clause (q) excludes the reproduction or publication of any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the Court, the Tribunal or other judicial authority from copyright. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. The reproduction or publication of the judgments delivered by the Supreme Court by any number of persons would not be infringement of a copyright of the first owner thereof, namely, the Government, unless it is prohibited. The question, therefore, is whether by introducing certain inputs in a judgment delivered by a court it becomes original copy-edited judgment and the person or authority or company who did so could claim to ::: Downloaded on - 09/06/2013 18:35:14 ::: 27 nms-lod-719-12-judgment.doc have embodied the originality in the said judgment and the judgment takes the colour of original judgment having a copyright therein of its publisher.
14. In many cases, a work is derived from an existing work. Whether in such a derivative work, a new copyright work is created, will depend on various factors, and would one of them be only skill, capital and labour expended upon it to qualify for copyright protection in a derivative literary work created from the pre-existing material in the public domain, and the required exercise of independent skill, labour and capital in its creation by the author would qualify him for the copyright protection in the derivative work. Or would it be the creativity in a derivative work in which the final position will depend upon the amount and value of the corrections and improvements, the independent skill & labour, and the creativity in the end-product is such as to create a new copyright work to make the creator of the derivative work the author of it; and if not, there will be no new copyright work and then the original author will remain the author of the original work and the creator of the derivative work will have been the author of the alterations or the inputs put therein, for their nature will not have been such as to attract the protection under the law of copyright."
::: Downloaded on - 09/06/2013 18:35:14 ::: 28nms-lod-719-12-judgment.doc 27} Both sides agree that in the present matter the question is of interpretation of the Agreement dated 24th April 1967.
28} That Agreement is executed between M/s.Ralhan Productions and the predecessor in title of defendant No.2, namely, the Gramophone Company of India Ltd. That relates to the recordings of the works from the films of M/s.Ralhan Productions. That includes the works from the films which are referred to in para 3 of the plaint. That Agreement recites that M/s.Ralhan Productions are the clients and the predecessor in title of the defendant No.2, is the company. It is a common ground that the expression "Company" includes its legal successors and assigns.
29} What the definitions in the Agreement state is that for the purpose of this Agreement the word "Work" will have the same meaning assigned to it by section 2(y)(i) of the Copyright Act, 1957.
30} The word "record" is defined in Clause 1(b) which reads as under:
"The word "record" shall mean a double-sided disc record, a magnetic tape or any other sound bearing contrivance or ::: Downloaded on - 09/06/2013 18:35:14 ::: 29 nms-lod-719-12-judgment.doc appliance reproducing a performance or performances by the Clients' artistes and musicians of one or more works owned by the Clients."
31} Thereafter, in Clause 2 what is stated is that during a period of two years computed from 5th December 1966, the clients M/s.Ralhan Productions shall supply to the company at their own expense the artists and musicians etc to perform musical and/or other works from their films for the purpose of making gramophone records, and the artists and musicians etc shall attend at the Company's studio or such other place as may be appointed by the Company and shall at such place and time record such works as the Company shall select, for Mechanical Reproduction Rights including the right to make gramophone records and such rights belong to the said M/s.Ralhan Productions. Clause 3 states that for repetition of this work, the artists and musicians shall be supplied.
32} What Clause 4 recites is that notwithstanding Clauses 2 and 3, M/s.Ralhan Productions at their own expense alternatively and subject to the consent of the company supply the company sound tracks or recorded ::: Downloaded on - 09/06/2013 18:35:14 ::: 30 nms-lod-719-12-judgment.doc tape of their musical and/or other works and the company shall utilise such sound tracks or recorded tapes for the purpose of re-recording therefrom and the subsequent manufacture of gramophone records as referred to in the above mentioned clause, provided they are, in the opinion of the company, suitable for such purpose.
33} M/s.Ralhan Productions agreed to indemnify the company from and against all actions, claims and damages which may be incurred by reason of the such re-recording an subsequent manufacture, issue and sale of gramophone records derived from sound tracks or recorded tapes supplied by M/s.Ralhan Productions. Clause 5 contains a covenant by the clients said M/s.Ralhan Productions that during the period of two years it will not allow any of its musical and/or other work to be recorded or re-
recorded by any of their artists and musicians etc or from any film sound tracks or recorded tapes or other modes for any other person, firm or corporation whatsoever carrying on a business similar to or in competition with that of the company in all or any of its branches.
34} Since heavy reliance is placed on Clauses 6, 7, 10 and 12, they are reproduced herein below:
::: Downloaded on - 09/06/2013 18:35:14 ::: 31nms-lod-719-12-judgment.doc "6 The Company during the said period of two year(s) and thereafter while the records recorded or re-recorded under the provisions of this Agreement remain on sale by the Company shall pay to the Clients a royalty on nett sales made in any part of the world of all records of the performance of the artistes and musicians etc as aforesaid calculated on the retail selling price in the country of manufacture for the time being at the following rates:-
(a) In the case of a double-sided disc record:-
( i) Performance by the Clients' artistes of any
work or works owned by the Clients on any one side of a record 2 and 1/2% per side
(ii) Performance by the Clients' artistes of any work or works owned by the Clients along with performance by other artistes of a work or works not owned by the Clients, on any one side of a record a share proportional to the umber of works of 2 and 1/2% per side
(b) In the case of any other record, the same shall be deemed to consist of Sections, each Section comprising the equivalent of a double-sided 78 rpm record and royalty shall be calculated on the sme basis as provided under (a)(i) and (ii) above on each such Section reproducing performances of the Clients' artistes.::: Downloaded on - 09/06/2013 18:35:14 ::: 32
nms-lod-719-12-judgment.doc Provided that if Clients shall at any time after the conclusion of the said period of two year(s) allow their artistes or musicians etc or any of them to record any works recorded or re-recorded under the provisions of this Agreement or permit the recording of such works from any film sound track or recorded tape or other means, for any other person, firm or corporation whatsoever, the company shall be no longer bound by this section and shall not have to pay any royalty whatsoever to the Clients under this section and PROVIDED FURTHER that such royalty shall not be payable to the Clients in respect of records recorded or re-recorded under the provisions of this Agreement by any of the Clients' artistes and musicians etc., who has before the execution of this Agreement recorded on behalf of the company.
7 The Clients hereby agree that they assign their gramophone recording rights in all works to be recorded or re-recorded under the provisions of this Agreement to the Company, and hereby agree further to indemnify and keep indemnified the Company in the case of such works as aforesaid from and against all actions, claims and damages which the Company may incur by reason of the recording, issue and sale of such works.
8 In consideration of the assignment set out in Clause 7 ::: Downloaded on - 09/06/2013 18:35:14 ::: 33 nms-lod-719-12-judgment.doc hereof the Company shall pay to the Clients a Copyright royalty on nett sales made in any part of the world of the works recorded or re-recorded under the provisions of this Agreement calculated on the retail selling price om the country of manufacture for the time being at the following rates:-
(a) In the case of a double-sided disc record:-
( i) A work or works owned by the Clients
and reproduced on any one side of a record
2 and 1/2% per side
(ii) A work or works owned by the Clients
and reproduced alongwith one or more other works not owned by this Clients on any one side of a record, a share proportional to the number of works of 2 and 1/2% per side
(b) In the case of any other record, the same shall be deemed to consist of sections, each section comprising the equivalent of a double-sided 78 rpm record and royalty shall be calculated on the same basis as provided under (a)
(i) and (ii) above on each such section reproducing the works owned by the Clients.
10 The Company shall be the owner of the original plate within the meaning of The Copyright Act, 1957, and any extensions or modifications thereof of each title recorded or re-recorded under the provisions of this Agreement at the ::: Downloaded on - 09/06/2013 18:35:14 ::: 34 nms-lod-719-12-judgment.doc time when such plate shall be made. The Company shall also 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 artistes and musicians etc., under this Agreement. The Company shall in its absolute discretion be entitled to authorise any other persons, firms and corporations in any part of the world to manufacture, sell and/or catalogue records of all or any of the titles recorded or re-recorded under the provisions of this Agreement when royalties shall become payable to the Clients as mentioned in Clauses 6 and 8 hereof.
12 The Company shall be entitled to continue this Agreement for one further successive period of one year(s) upon giving notice in writing to the Clients. Any notice given under the provisions hereof shall be given before the expiration of this Agreement, or any continuance thereof as the case may be, by registered letter and sent to the address of the Clients last known to the Company."
35} A bare reading of Clause 6 shows that what is agreed therein is to pay royalty on nett sales made in any part of the world of all records of the performance of the artists and musicians calculated on the retail selling price in the country of manufacture with a proviso that if after the ::: Downloaded on - 09/06/2013 18:35:14 ::: 35 nms-lod-719-12-judgment.doc period of two years M/s.Ralhan Productions allow their artists or musicians or any of them to record their works recorded or re-recorded under the provisions of this Agreement or term the recording of such works from any film sound track or recorded for any other person, firm or corporation whatsoever the company was no longer bound by this section and obliged to pay any royalty and further stipulation is that the royalty is not payable to M/s.Ralhan Productions in respect of the records recorded or re-recorded under the provisions of this Agreement by any of the artists and musicians, who has before the execution of this Agreement recorded on behalf of the company. What Clause 7 provides for is assignment of Gramophone Recording Rights in all works to be recorded or re-recorded and an indemnity.
36} Clause 10 succeeds Clauses 8 and 9, which stipulate that in consideration of the assignment vide Clause 7, the royalty shall be paid on the nett sales price in any country and Clause 9 provides for furnishing by the company of half yearly statements showing the number of records sold and based on the same the royalty shall be computed and paid.
Clause 10 makes the company the owner of the original plate within the meaning of the Copyright Act, 1957 and any extensions or modifications ::: Downloaded on - 09/06/2013 18:35:14 ::: 36 nms-lod-719-12-judgment.doc thereof of each title recorded or re-recorded under the provisions of this Agreement at the time when such plate shall be made. The company shall also be entitled to the sole right of the production, sale, use and performance (including broadcasting) throughout the world by any and other means whatsoever of the records of the works performed by the artists and musicians etc in this Agreement.
37} Thereafter, follow Clauses 11 and 12 and from reading of these clauses, what is stated therein has been crystalised by Clause 13, which gives the company absolute right to use the names of the artists on the record labels, record envelopes etc so that the company can fully exploit and utilise the rights under the Agreement.
38} That such an Agreement was executed having been undisputed, there is much substance in the contentions of the defendant No.2 that M/s.Ralhan Productions have conferred in the defendant No.2's predecessor and thereafter defendant No.2, the rights which are more particularly set out in the Agreement for a certain period and thereafter with full authority to continue the Agreement.
::: Downloaded on - 09/06/2013 18:35:14 ::: 37nms-lod-719-12-judgment.doc 39} Mr.Kadam, learned senior counsel appearing on behalf of the plaintiff would still argue that except for the Gramophone Recording Rights all other rights vests in M/s.Ralhan Productions. The assignment, therefore, is partial. In such circumstances, by relying on the definition of the term "record" as appearing in the Agreement and going by the wording of Clause 10 of the said Agreement, it cannot be argued that contractual stipulations and the Agreement reached between parties confers statutory rights and particularly those vested in the owner of a copyright. Once such is the restricted nature of the arrangement, then, according to Mr.Kadam no reliance can be placed on the Copyright Act, 1957 or any statutory modification thereof, leave alone the 1994 amendment to the same.
40} Alternatively and without prejudice he submits that there is no assignment of sound recording rights. Further, the rights under the Agreement would not enable the 2nd defendant to incorporate the said song or any part thereof into a distinct work or a film. In this behalf, reliance is placed on Clause 2 and provisos to Clauses 4 and 6 of the Agreement so also Clause 7 thereof. In these circumstances, according to Mr.Kadam conduct of the plaintiff in receiving the amount of royalty for ::: Downloaded on - 09/06/2013 18:35:14 ::: 38 nms-lod-719-12-judgment.doc all these years is no ground to deny the interim injunction as prayed. This is not admission of any title or ownership of the works being vested in defendant No.2. Therefore, he submits that interim injunction be granted.
41} It is not possible to accept any of these contentions for the Agreement must be read as a whole. All Clauses therein should be read in their entirety and together so as to understand and appreciate the nature of the rights conferred in the defendant No.2.
42} The principles of construction of contracts and deeds are too well settled. M/s.Rohtas Industries Ltd vs. The State of Bihar reported in AIR 1963 Supreme Court 347 and Ramkishorelal and Anr vs. Kamalnarayan reported in AIR 1963 Supreme Court 890 are some of the cases in which the principles were laid down. In the case of Rohtas Industries vs. The State of Bihar (supra), it is observed thus:
"The true nature of a transaction evidenced by a written agreement has indeed to be ascertained from the covenant and not merely from what the parties chose to call it. The words of an agreement must be carefully scrutinised in the light of the surrounding circumstances."::: Downloaded on - 09/06/2013 18:35:14 ::: 39
nms-lod-719-12-judgment.doc 43} It is these principles which would assist the Court while finding out the intention of the parties. From reading of the instant Agreement and applying these principles, prima facie, it is clear that it is an Agreement so as to confer the rights in the work. The term "work" has been defined in the Copyright Act, 1957 to mean a literary, dramatic, musical or artistic work; a cinematographic film; a sound recording. Now the word "sound recording" was substituted by Act 38 of 1994 in the definition of the term "work" appearing in 2(y), for the word "record", with effect from 10 th May 1995. The word "record" was defined in section 2(w) of the Copyright Act, 1957 as under:
"(w) "record" means any disc, tape, perforated roll or other device in which sound are embodied so as to be capable of being reproduced therefrom, other than a sound track associated with a cinematograph film;"
44} A bare perusal of the definition would show that any disc, tape etc or other device in which sounds are embodied so as to be capable of being reproduced therefrom, other than sound track associated with a cinematograph film, is a record. Thus, it was always understood that this ::: Downloaded on - 09/06/2013 18:35:14 ::: 40 nms-lod-719-12-judgment.doc is not just a definition of the act of making a record or recording but it was understood as a work independently capable of being recognised for the purposes of a copyright. Were it not to be so, then, there was no necessity of defining it distinctly than that of a literary, dramatic, musical or artistic work and particularly a cinematograph film. Thus, the word "record" was always appearing in the definition of the term "work" as defined in section 2(y) of the Copyright Act, as it stood in 1957 as well. If at all there was any doubt, one can usefully refer to the definition of the term "recording" as appearing in section 2(x) of the old Act, namely, the Copyright Act, 1957 and the definition of the term "sound recording"
appearing in section 2(xx) of the said Act post amendment in 1994. That defines the concept of sound recording and gives it a meaning for the purposes of the Copyright Act, 1957 and with a view to identify and understand it as a distinct work in which a copyright subsists and can be protected. In such circumstances, it is futile to urge that the definition of the term "record" is contractual and has no reference to the statutory provision. In the same Agreement the word "work" has been understood by the parties to have the same meaning assigned to it by section 2(y)(i) of the Copyright Act, 1957, then, it was not necessary for the parties to set out the definition of the term "record" by incorporating the statutory ::: Downloaded on - 09/06/2013 18:35:14 ::: 41 nms-lod-719-12-judgment.doc provision. No other meaning of these terms apart from their definition in the Copyright Act was envisaged by the parties. Equally, there is a clear reference to the ownership of the original plate within the meaning of the Copyright Act, 1957 in Clause 10. It is in these circumstances, that I am of the opinion that what is conferred by the Agreement and what vests in the 2nd defendant, prima facie, is a copyright in the sound recording which is a distinct work.
45} Mr.Kadam does not dispute that by section 13 of the Copyright Act, the work in which copyright subsists includes sound recording. In so far as reliance placed by him on sub-section 4 of section 13 is concerned, that is once again amplifying and clarifying that the copyright in the cinematographic film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film or the case may be, the sound recording is made. Here, one must proceed on the basis of the concession of Mr.Tulzapurkar that the copyright in the underlying work has not been claimed by the defendant No.2. It has no claim of ownership in so far as the lyrics or composition of the songs and music is concerned. What it has claimed is that in so far as the sound recording is concerned, it is a work in which the copyright ::: Downloaded on - 09/06/2013 18:35:14 ::: 42 nms-lod-719-12-judgment.doc subsists in their favour, prima facie, from the Copyright Act, 1957 as also the clauses of the said Agreement. It is that aspect and recognising the separate copyright in the underlying work and the sound recording, that the reliance placed by defendant No.2 on section 14 of the Copyright Act must be seen. That provision defines for the purposes of the Copyright Act, the term "copyright". That is an exclusive right, subject to the provisions of the Act to do or authorise the doing of any of the acts enumerated in the said provision, in respect of the work or any substantial part thereof, namely, in the case of a sound recording to make any other sound recording embodying it, 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 and to communicate the sound recording to the public. Therefore, once such is the sweep of the right and the authority in respect of a work or any substantial part thereof, and that includes communication to the public as understood by section 2(ff) of the Copyright Act, 1957, then, prima facie there is substance in the contentions of Mr.Tulzapurkar that in relation to the sound recording the 2nd defendant can be said to be prima facie, a producer.::: Downloaded on - 09/06/2013 18:35:14 ::: 43
nms-lod-719-12-judgment.doc 46} Equally, his reliance upon the definition of the term "plate" as defined in section 2(t) is well placed. That is an inclusive definition and it includes all notes or devices used or intended to be used for printing or reproducing copies of any works or any matrix or other appliance by which sound recording in the acoustic presentation of the work are or are intended to be made. If this definition is contra-distinguished with the definition of the same term prior to 1994 amendment, then, there is no difficulty in understanding as to why the word "record" has been substituted by the word "sound recording" and reference to the same in the said definition. In such circumstances, it was always understood by parties that the right in a separate so also identifiable work, namely, sound recording is conferred by this Agreement and that is prima facie absolute.
47} It is not possible to agree with Mr.Kadam that for the purposes of the present case and even if the statutory concept is embodied in the document and must be read therein, yet, except for the Gramophone Recording Rights all other rights vests in M/s.Ralhan Productions. It is in that context that he relies upon section 18(1) and 19 of the Copyright Act, 1957. According to him this recognises assignment of a copyright in ::: Downloaded on - 09/06/2013 18:35:14 ::: 44 nms-lod-719-12-judgment.doc part or partially and by section 19 mode of such assignment is provided.
There is no dispute that the statue recognises the right of the owner to assign the copyright either wholly or partially and either generally or subject to limitations, either for the whole term of the copyright or part thereof, yet, that is to be understood in the case of an individual act and facts emerging from the assignment in each case. In the present case, the recourse to statutory amendment is permissible because it is the embodiment of the statutory right itself which is recognised in the Agreement and the understanding and interpretation placed thereon by the parties. They knew very well that what M/s.Ralhan Productions are being divested, are the distinct and identifiable rights of sound recording which is a work within the meaning of the Copyright Act, 1957. Such rights are conferred on defendant No.2 and parties did not in any manner dilute them and the provisos that are relied upon by Mr.Kadam would not be of any assistance to the plaintiff inasmuch as what the provisos record is that if after the conclusion of the period M/s.Ralhan Productions allow their artists or musicians or any of them to record any works recorded or re-recorded under the provisions of the Agreement or permit recording of such works in any film sound track or recorded tape etc or other means, for any other purpose, the company shall not then be bound ::: Downloaded on - 09/06/2013 18:35:14 ::: 45 nms-lod-719-12-judgment.doc and shall not have to pay any royalty to M/s.Ralhan Productions. Equally, royalty shall not be payable in respect of any records recorded or re-
recorded under the provisions of the Agreement by any of the artists and musicians of M/s.Ralhan Productions who have recorded the same on behalf of the company but before the execution of this Agreement.
Understood thus, there is no substance in the contentions of Mr.Kadam that restricted rights are conferred in the defendant No.2 by the deceased.
It is in this context that I am of the opinion that the conduct of the plaintiff in accepting the royalty for all these years and under the subject Agreement would support the interpretation that is sought to be placed by the defendant Nos.1 and 2 on this Agreement and cannot advance the case of the plaintiff as urged. The conduct is thus consistent with the plaintiff's understanding and interpretation of the Agreement and equally that of M/s.Ralhan Productions.
48} Once such is the conclusion reached, then, it will have to be held that the plaintiff has failed to make out a prima facie case. She cannot seek any assistance from the contents of a letter which has been addressed by the defendant No.2 to M/s.Ralhan Production and a copy of which is at page 96 of the paperbook. In any event, that letter must be ::: Downloaded on - 09/06/2013 18:35:14 ::: 46 nms-lod-719-12-judgment.doc read in its entirety and it is not possible to pick and choose sentences and paragraphs therefrom at this stage. That letter re-inforces the contents of the Agreement and the interpretation placed by the defendant No.2 on it throughout. All that defendant No.2 desires to incorporate is that since there are technological advances and that there could be some licensing of the work/recordings to the third parties and further non-physical exploitation of the same, then, royalty payable to M/s.Ralhan Productions remains at the same rates as mentioned in the said Agreement for sale of records in physical and non-physical formats and that will be applied.
That is only to inform the said M/s.Ralhan Productions that nothing more than what is contemplated in terms of royalty, shall be payable to M/s.Ralhan Productions.
49} It is as a result of the above discussion, that I am of the opinion that on all three counts, namely, prima facie case, balance of convenience and irreparable loss and injury, the plaintiff has failed, then, the Notice of Motion cannot succeed. It is accordingly dismissed but without any order as to costs. It is clarified that all observations and findings shall be treated as tentative and prima facie and should not influence the Court while trying the suit. Similarly, it is clarified once again that these findings are ::: Downloaded on - 09/06/2013 18:35:14 ::: 47 nms-lod-719-12-judgment.doc rendered in the backdrop of the Agreement between defendant No.2 and M/s.Ralhan Productions and the Clauses therein so also the interpretation placed thereon. However, it is directed that defendant Nos.1 and 2 shall maintain and render accounts by filing them three times a year in this Court. That shall commence from 1 st September for this year. For every subsequent years till the pendency of the suit, the accounts shall be filed at the end of April, end of August and end of December of further years.
(S.C.DHARMADHIKARI, J) ::: Downloaded on - 09/06/2013 18:35:14 :::