Madras High Court
Kalaignar Tv Pvt. Ltd vs Dish Tv India Limited on 29 April, 2024
Author: C.Saravanan
Bench: C.Saravanan
C.S.(Comm Div).No.603 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 02.03.2023
Pronounced on 29.04.2024
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.S.(Comm Div).No.603 of 2019
Kalaignar TV Pvt. Ltd.,
Represented by its Vice President (Finance)
G.Rajendran,
Anna Arivalayam,
Nos.367 & 369 Anna Salai,
Chennai – 600 018. ... Plaintiff
vs.
1. Dish TV India Limited,
Represented by its Managing Director,
Essel House, B-10,
Lawrence Road Industrial Area,
Delhi – 110 035.
2. Peppermint Private Limited,
Represented by its Director,
B-90 / 003, Shubangan Building,
Opp. Sarita Enclave,
PoonamSagar, Mira Road,
Thane, Maharastra – 401 107.
3. Moser Baer India Private Limited,
Represented by its Director,
43B, Okhla Industrial Area, Phase III,
New Delhi – 110 020.
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C.S.(Comm Div).No.603 of 2019
4. Mirchi Movies Limited,
Represented by its Director,
4th Floor, 'A' Wing, Matulya Centre,
SenapatiBapat Marg,
Lower Parel (West) Mumbai – 400 013.
5. Prakash Raj,
Sole Proprietor,
Duet Movies,
No.9, Balaraman Road, Adyar,
Chennai – 600 020. ... Defendants
Prayer: Civil Suit filed under Order VII Rule 1 of the CPC read with
Order IV Rule 1 of the Madras High Court Original Side Rules read with
Sections 51, 55 & 62 of the Copyrights Act, 1957,
a) To direct the 1st and 2nd defendants jointly and
severally to pay to the plaintiff a sum of
Rs.2,25,00,000/- (Rupees Two Crores and Twenty
Five Lakhs Only) towards damages, loss of
business and restitution of unjust enrichment
together with interest at rate of 12% per annum
from date of plaint till realization;
b) To grant an order of permanent injunction
restraining the 1st and 2nd defendants jointly and
severally, their men, staff, agents, servants,
employees, programmers, assigns, representatives,
distributors, dealers and all other persons claiming
through or under them or however otherwise from
in anyway, directly or indirectly broadcasting,
reproducing, publishing, telecasting, adapting or
creating any derivative works of the films
“VELLITHERAI” or any part of the films or in any
other way infringe the Plaintiff's exclusive
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C.S.(Comm Div).No.603 of 2019
copyrights over the said movies;
c) To direct the 1st and 2nd defendants to surrender to
the plaintiff for destruction all CDs, DVDs, Blu
Ray Discs, hard drives and any other electronic
storage media containing the movies
“VELLITHERAI” or any part thereof;
d) To direct the 1st and 2nd defendants to pay costs of
the suit.
For Plaintiff : Mr.Richardson Wilson
For D1 : Mr.M.Narendran and
Mr.D.Prajeesh for
M/s.King & Patrige
For D2 : Mr.A.Chidambaram
JUDGMENT
1. The plaintiff has filed this suit for the following reliefs:-
a) Direct the 1st and 2nd defendants, jointly and severally to pay to the plaintiff a sum of Rs.2,25,00,000/- (Rupees Two Crores and twenty five lakhs Only) towards damages, loss of business and restitution of unjust enrichment together with interest at rate of 12% per annum from date of plaint till realization;
b) Grant an order of permanent injunction restraining the first and second defendants jointly and severally, their men, staff, agents, servants, employees, programmers, assigns, representatives, distributors, dealers and all other persons claiming through or under them or however otherwise from in anyway, directly _____________ https://www.mhc.tn.gov.in/judis Page No.3 of 57 C.S.(Comm Div).No.603 of 2019 or indirectly broadcasting, reproducing, publishing, telecasting, adapting or creating any derivative works of the films “VELLITHERAI” or any part of the films or in any other way infringe the plaintiffs’ exclusive copyrights over the said movies;
c) Direct the first and second defendants to surrender to the plaintiff for destruction all CDs, DVDs, Blu Ray Discs, hard drives and any other electronic storage media containing the movies “VELLITHERAI” or any part thereof;
d) Directing the 1st and 2nd defendants to pay costs of the suit; and
e) Pass such other or further orders.
2. Plaintiff, a company incorporated on 06.06.2007, purchases copyrights from their copyright holders of various films by paying in lump sum amounts to them to broadcast them exclusively through their channel on platforms such as cable TV, DTH (Direct to Home), TV, web TV etc. The plaintiff generates revenue generated from advertisements during the broadcast of films. The dispute in the present case pertains to a Tamil Feature Movies “VELLITHERAI” jointly produced by the 3rd defendant to the 5th defendant.
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3. The plaintiffs’ case is that the Tamil Feature Film titled “VELLITHERAI” was originally produced by the 3rd defendant to the 5th defendant, Moser Baer India Pvt. Ltd., Mirchi Movies Limited, Prakash Raj respectively.
4. The plaintiff signed Ex.P2 Assignment Agreement dated 28.12.2007 with these three defendants namely Moser Baer India Pvt. Ltd., Mirchi Movies Limited and Prakash Raj respectively for a total consideration of Rs.1,25,00,000/- (Rupees One Crore Twenty Five Lakhs). Thus, according to the plaintiff, the plaintiff became an exclusive assignee of copyright over the Tamil Feature Film “VELLITHERAI” under Ex.P2 Assignment Agreement dated 28.12.2007.
5. It is the case of the plaintiff that the 1st defendant, in violation of the plaintiffs’ exclusive copy right and broadcast rights over Tamil Feature Film “VELLITHERAI” under Ex.P2 Assignment Agreement dated 28.12.2007, had illegally broadcasted the Tamil Feature _____________ https://www.mhc.tn.gov.in/judis Page No.5 of 57 C.S.(Comm Div).No.603 of 2019 Film “VELLITHERAI” on 21.10.2018 at 7:30 p.m. on its channel “Thiraiulagam” with Logical Channel Number (LCN) 1853. The plaintiff thus issued Ex.P5 Legal Notice dated 03.11.2018 to the 1st defendant and the 2nd defendant.
6. A similar suit has been filed in respect of the Tamil Feature Flim ‘BOSS (ENGIRA) BASKARAN’ in C.S.(Comm.Div.) No.605 of 2019 which was telecasted on 18.10.2018 against the 1st defendant and the 2nd defendant herein and two other defendants therein. There also the plaintiff herein along with one Anjugam Films Private Limited sough for similar relief against the 1st defendant and the 2nd defendant herein for telecasting Tamil Feature Film ‘BOSS (ENGIRA) BASKARAN’. A separate judgment has been pronounced today based on the reasoning in this judgment. The Suit has been dismissed.
7. The 1st defendant defended the telecast of the Tamil Feature Film “VELLITHERAI” on 21.10.2018 in its channel “Thiraiulagam” on the strength of Ex.D3 Service Agreement dated 04.04.2018 signed with _____________ https://www.mhc.tn.gov.in/judis Page No.6 of 57 C.S.(Comm Div).No.603 of 2019 the 2nd defendant.
8. According to the plaintiff, Ex.D3 Service Agreement dated 04.04.2018 is a sham and void agreement and in event does not bind the plaintiff. It is stated by the plaintiff that the 1st defendant and the 2nd defendant would have earned at least about Rs.4 Crores in revenue from the broadcast of the Tamil Feature Film “VELLITHERAI” on 21.10.2018 and since there was a split in viewership, the monetization potential for the Tamil Feature Film “VELLITHERAI” had diminished drastically for the plaintiff.
9. The plaintiff has thus claimed a sum of Rs. 2,25,00,000/- as damages for breach of Ex.P2 Assignment Agreement dated 28.12.2007 from the 1st defendant and the 2nd defendant.
10. The 1st defendant states that the 1st defendant is engaged in provision of Direct to Home (DTH) services and provides such services under its brand name ‘Dish TV’ and ‘DTH’. Additionally, it states that it also provides Value Added Service to its subscriber on payment of a _____________ https://www.mhc.tn.gov.in/judis Page No.7 of 57 C.S.(Comm Div).No.603 of 2019 prescribed subscription fee.
11. It is submitted that based on the representations and ostensible authority of the 2nd defendant in Ex.D3 Service Agreement dated 04.04.2018, the 1st defendant featured the content provided by the licensor viz., 2nd defendant as one of its Value-Added Service in respect to Tamil movies on its D2H platform.
12. It is further submitted by the 1st defendant that the 1st defendant has not violated any copyright of the plaintiff in Tamil Feature Film “VELLITHERAI” and that in any event, the 1st defendant is a bonafide licensee through Ex.D3 Service Agreement dated 04.04.2018.
13. The 1st defendant further submits that the Tamil Feature Film “VELLITHERAI” was telecasted only on 21.10.2018 and on receiving Ex.P3 Cease and Desist Email-Notice dated 24.10.2018, the 1st defendant stopped telecasting of Tamil Feature Film “VELLITHERAI”. It is submitted that this shows bonafide of the 1st defendant. _____________ https://www.mhc.tn.gov.in/judis Page No.8 of 57 C.S.(Comm Div).No.603 of 2019
14. It is further stated that the 1st defendant has not violated any copyright of the plaintiff and in case of any infringement action, the 2 nd defendant had agreed to indemnify the 1st defendant as per Article 10 of the Ex.D3 Service Agreement dated 04.04.2018. A reference was made to Clause 3.4 of Ex.D3 Service Agreement dated 04.04.2018.
15. The 1st defendant had also filed Application No.4001 of 2021 under Order VIII-A, Rule 8 read with Section 151 of CPC, 1908 for a direction that in case the suit being decreed in favour of the plaintiffs against the 1st defendant and the 2nd defendant, a cross decree be granted in favour of the 1st defendant by directing the 2nd defendant to indemnify the 1st defendant by invoking the provisions of order VIII A Rule 8 of CPC and to pass further orders.
16. Application No.4001 of 2021 was allowed by the Court with the following observations:-
“9. It is clear from the above provision that a co- defendant will be entitled to seek for contribution _____________ https://www.mhc.tn.gov.in/judis Page No.9 of 57 C.S.(Comm Div).No.603 of 2019 from or indemnity against any other defendant in the suit. This procedure was brought in to curtail multiplicity of the proceedings and not to drive the defendant to institute one more case against the co- defendant. The legislature thought that the dispute inter se the defendants can also be considered by the same Court. It is also made clear in this provision that the dispute as among the defendants will not in any way cause prejudice to the right of the plaintiffs against the claim made by them against any defendant in the suit. In other words, this inter se dispute between the 1st and 2nd defendants will not have any impact on the rights claimed by the plaintiff and the relief sought for in the present suit.
10. The notice was served on the 2nd defendant before this application was filed. The 2nd defendant who was appearing through counsel took change of vakalat and thereafter, nothing is heard from the 2nd defendant. Sufficient opportunity has also been given and the 2nd defendant has not availed the opportunity. Taking into consideration, the averments made in the affidavit filed in support of the application and the specific taken by the applicant/1st defendant in the written statement, this Court is inclined to allow this application.
11. In view of the above discussion, this application is allowed as prayed for.” _____________ https://www.mhc.tn.gov.in/judis Page No.10 of 57 C.S.(Comm Div).No.603 of 2019
17. It is further submitted that the 1st defendant launched “ThiraiUlagam” to its subscribers @ 20 per month plus applicable taxes and the Tamil Feature Film “VELLITHERAI” was telecasted as a Video on Demand along with 10 other movies, for a total number of 18,958 subscribers alone. It was further submitted that even in case of alleged breach of copyright by the 1st defendant, such an exorbitant amount for damages cannot be countenanced.
18. It is submitted that the 1st defendant has not earned Rs.4,00,00,000/- from advertisements while telecasting the aforesaid film as has been stated by the plaintiff. It is further submitted that the 1st defendant offered only value added services on subscription basis to subscribers and that no revenue was generated through advertisement independently by telecasting of the Tamil Feature Film “VELLITHERAI”.
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19. It is submitted by the 2nd defendant submitted that it had acquired the rights over the 166 Tamil Feature Films including Tamil Feature Film “VELLITHERAI” legally for consideration on the strength of Ex.D10 Agreement of Memorandum dated 27.02.2015 with one R.Subramani which refers to the following agreements/link documents namely:-
i. Agreement dated 10.05.2009 between the 5th defendant and M/s.S.V.Enterprises represented by its Proprietor one Mr.P.Babu wherein the 5th defendant assigned exclusive rights for over 166 Tamil Feature Films including the Tamil Feature Film “VELLITHERAI” to M/s.S.V Enterprises Enterprises represented by its Proprietor one Mr.P.Babu.
ii. Agreement dated 11.02.2015 between the said M/s.S.V.Enterprises represented by its proprietor Mr.P.Babu inturn assigned copyrights over various Tamil Feature Films to the assignee namely R.Subramani.
iii. Ex.D10 Assignment Agreement dated 27.02.2015 between M/s.S.V.Enterprises represented by its Proprietor one Mr.P.Babu and Mr.R.Subramani wherein former assigned rights over the various films to the 2nd defendant for over 166 Tamil Feature Films including the Tamil Feature Film “VELLITHERAI”from _____________ https://www.mhc.tn.gov.in/judis Page No.12 of 57 C.S.(Comm Div).No.603 of 2019 (***)
20. It was further submitted that the 2nd defendant had legal authority to sign Ex.D3 Service Agreement dated 04.04.2018 with the 1st defendant in the light of Ex.D10 Assignment Agreement dated 27.02.2015. It is submitted that the plaintiff has failed to place before the Court the basis on which the damage has been claimed towards loss of business.
21. The 2nd defendant, in the written statement has stated that the subject Tamil Feature Film “VELLITHERAI” was directed by one Arun Prasad, who is popularly known as Viji and the music was scored by G.V.Prakash Kumar.
22. The 2nd defendant in the written statement has made a reference to Agreement of Memorandum dated 10.05.2009 between the 5rh defendant and S.V.Enterprises and another Memorandum of Understanding between the said S.V.Enterprises and R.Subramani dated 11.02.2015.
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23. In written statement, the 2nd defendant has stated that by an Agreement of Memorandum dated 10.05.2009 between Duet Movies of the 5th defendant herein and M/s.S.V.Enterprises represented by its proprietor Mr.P.Babu, the 5th defendant as the Assignor assigned rights over the Tamil Feature Film “VELLITHERAI” in favour of M/s.S.V.Enterprises represented by its proprietor Mr.P.Babu.
24. The 2nd defendant further states that the plaintiff issued Ex.P4 Legal Notice dated 25.10.2018 to the 1st defendant. It is submitted that the fact that the present suit was filed nearly 10 months after the telecast of the Tamil Feature Film “VELLITHERAI” by the 1st defendant indicates that the plaintiff was satisfied with the bonafide of the 2nd defendant. However as an afterthought the present suit was filed 10 months after the telecast of the Tamil Feature Film “VELLITHERAI” and therefore, the present suit was not bonafide. _____________ https://www.mhc.tn.gov.in/judis Page No.14 of 57 C.S.(Comm Div).No.603 of 2019
25. The 4th defendant supports the case of the plaintiff. On behalf of the 4th defendant, it was stated that it had entered into Ex.P2 Assignment Agreement dated 28.12.2007 with the plaintiff and had given the rights to commercially exploit the Tamil Feature Film “VELLITHERAI” which was co-produced by the 4th defendant along with the 3rd defendant and the 5th defendant. The 4th defendant further submits that it had not entered into any agreement/ contract/ commercial understanding with the 2nd defendant regarding the Tamil Feature Film “VELLITHERAI”. The 4th defendant has tacitly supported the case of the plaintiff.
26. Following issues for being answered in this suit:-
i. Whether the plaintiff is the holder of the exclusive copyrights and broadcast rights over the movie “VELLITHERAI”?
ii. Whether the first defendant by broadcasting the movie “VELLITHERAI” in any manner infringed the plaintiff ’s copyrights over the said film?
iii. Whether the agreement dated 04.04.2018, based on the earlier agreement of the second defendant dated 10.05.2019, is illegal, void and sham and nominal?
iv. Whether the plaintiff is entitled for damages?
_____________ https://www.mhc.tn.gov.in/judis Page No.15 of 57 C.S.(Comm Div).No.603 of 2019 v. Whether the plaintiff is entitled for injunction restraining the defendants from directly or indirectly broadcasting, reproducing, publishing, telecasting, adapting or creating any derivative works of the film” VELLITHERAI” or any part of the films? vi. Whether the defendants are liable to surrender all Cds, DVDs, Blu Ray Discs, hard drives and any other electronic storage media containing the movie “VELLITHERAI” or any part thereof?
vii.What other relief, the plaintiff is entitled to ?
27. On behalf of the plaintiff, Vice President (Finance) Mr.G.Rajendran was examined as P.W.1. Exs.P1 to P8 were marked. Through P.W.1 Exs.P1 to P8 were marked as detailed below:-
Sl. Date Exhibits Name of the Document
No.
1 28.12.2018 Ex.P1 Board Resolution
2 28.12.2007 Ex.P2 Copy of Assignment Agreement between the plaintiff and defendants 3 to 5 3 24.10.2008 Ex.P3 Copy of E-mail sent on behalf of the plaintiff by the Advocate of the plaintiff 4 25.10.2008 Ex.P4 Copy of E-mail received from the 1st defendant’s staff 5 03.11.2018 Ex.P5 Copy of Legal Notice issued by the plaintiff’s counsel 6 26.11.2018 Ex.P6 Copy of Reply notice received by the plaintiff’s counsel.
7 Ex.P7 Statement showing the revenue generated by the plaintiff by broadcasting the movie “Sivaji” _____________ https://www.mhc.tn.gov.in/judis Page No.16 of 57 C.S.(Comm Div).No.603 of 2019 Sl. Date Exhibits Name of the Document No. 8 Ex.P8 Statement showing the revenue by broadcasting the movie “varuthapadatha vallibar sangam”
28. On behalf of the defendants, the following witnesses were examined:-
On behalf of 1st defendant On behalf of the 2nd defendant Name of the witness Ms.Vinita Sinha Mr.P.Ananda Rao Designation Divisional Manager (Legal) Authorized Signatory Rank of witness D.W.1 D.W.2
29. On behalf of the defendants, Exs.D1 to D10 were marked. Exs.D1 to D8 were marked through D.W.1. Exs.D9 & D10 were marked through D.W.2. Details of Ex D1 to 10 are as under:
Sl. Date Exhibits Name of the Document
No.
1 29.06.2022 Ex.D1 Board Resolution passed by the 1st
defendant
2 15.03.2014 Ex.D2 Authorisation for authentication of
documents on behalf of the company
3 04.04.2018 Ex.D3 Service Agreement between the 1st and
2nd defendant
4 20.11.2018 Ex.D4 Letter sent by the 1st defendant to 2nd
defendant
5 20.11.2018 Ex.D5 E-mail sent by the 1st defendant to 2nd
defendant
6 07.03.2019 Ex.D6 Addendum to the service agreement
between the 1st and 2nd defendant
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7 14.11.2019 Ex.D7 Letter sent by the 1st defendant to the 2nd
defendant
8 17.02.2020 Ex.D8 E-mail sent by the 1st defendant to the
2nd defendant
9 17.02.2020 Ex.D9 Resolution Peppermint Pvt.Ltd.,
10 27.02.2015 Ex.D10 Agreement of Memorandum
30. The learned Senior Counsel for the plaintiff placed reliance on the following decisions:-
i. Sun TV Network Ltd, Vs. Super Good Films Private Limited and others, 2022 SCC OnLine Mad 125;
ii. Sun TV Network Ltd., Vs. Parameshwara Art Productions and another, 2022 SCC OnLine Mad 2842;
iii. Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri and Another, 2011 SCC OnLine SC 200;
iv. Dr.N.G.Dastane Vs. Mrs.S.Dastane, 1975 (2) SCC 326;
v. Mohinder Kaur Vs. Sant Paul Singh, 2019 (9) SCC 358;
vi. Angath Arts Pvt. Ltd. Vs. Century Communications Ltd. and another, 2008 (4) Mh.L.J;
vii. Life Insurance Corporation of India and another Vs. Ram Pal Singh Bisen, (2010) 4 SCC 491;
viii.Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and another, (2003) 8 SCC 745;
ix. Lokara Om Kumar Vs. Baikan
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Satyanarayana and others, 2006 SCC
OnLine AP 508;
31. Apart from the above, the learned Counsel for the plaintiff relied on the Direct to Home Broadcasting Services (Standards of Quality of Service and Redressal of Grievances) Regulations, 2007.
32. The learned Counsel for the defendant relied on the Recommendations on Platform Services offered by DTH Operators
33. I have considered the arguments advanced by the learned counsel for the plaintiff and as well as the learned counsel for the defendants and have also perused the documents filed by the both sides. I have perused the Written Statement of the 1st, the 2nd and the 4th defendants.
34. The rights have been conferred on the plaintiff vide Ex.P2 – Assignment Agreement dated 28.12.2007 signed between the plaintiff _____________ https://www.mhc.tn.gov.in/judis Page No.19 of 57 C.S.(Comm Div).No.603 of 2019 and the 3rd defendant to the 5th defendant. The 1st defendant has claimed rights based on Ex.D3 – Service Agreement dated 04.04.2018 signed between the 1st and the 2nd defendant and Ex.D10 – Agreement of Memorandum dated 27.02.2015 signed between the 2nd defendant and R.Subramani and the documents titled as Agreement of Memorandum dated 10.05.2009 between the 5th defendant and S.V.Enterprises and Agreement of Memorandum dated 11.02.2015 between S.V.Enterpries and R.Subramani.
35. Section 92 of the Indian Evidence Act, 1872 reads as under:-
“92. Exclusion of evidence of oral agreement. –– When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1). –– Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, _____________ https://www.mhc.tn.gov.in/judis Page No.20 of 57 C.S.(Comm Div).No.603 of 2019 illegality, want of due execution, want of capacity in any contracting party, 1 [want or failure] of consideration, or mistake in fact or law.
Proviso (2). ––The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3). ––The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4). ––The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5). –– Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6). –– Any fact may be proved which shows in what manner the language of a document is related to existing facts.” _____________ https://www.mhc.tn.gov.in/judis Page No.21 of 57 C.S.(Comm Div).No.603 of 2019
36. Agreement of Memorandum dated 10.05.2009 between the 5th defendant and S.V.Enterprises and Agreement of Memorandum dated 11.02.2015 between S.V.Enterpries and R.Subramani have not been marked.
37. The 2nd defendant claims right from Ex.D10 – Agreement of Memorandum dated 27.02.2015 signed with one R.Subramani. By virtue of Ex.D10 – Agreement of Memorandum dated 27.02.2015, rights have been conferred by the said R.Subramani on the 2nd defendant in respect of about 166 Tamil Feature Films released at different point of time as mentioned in Schedule A to Ex.D10 – Agreement of Memorandum signed between the said R.Subramani and the 2nd defendant dated 27.02.2015.
38. The subject Tamil Feature Film “VELLITHERAI” is one of the film in Schedule A to Ex.D10 – Agreement of Memorandum dated 27.02.2015 signed between the said R.Subramani and the 2nd defendant. _____________ https://www.mhc.tn.gov.in/judis Page No.22 of 57 C.S.(Comm Div).No.603 of 2019
39. Ex.D10 Agreement of Memorandum dated 27.02.2015 refers to a link document. Rights are said to have been conferred on the said R.Subramani under the link document which was transferred to the 2nd defendant under Ex.D10 Agreement of Memorandum dated 27.02.2015 are for a perpetual right for a period of 99 years. Relevant clause from Ex.D10 Agreement of Memorandum dated 27.02.2015 reads as under:-
“Whereas the Assignor (PRODUCER / COPY RIGHT HOLDER / AUTHORISED PERSON) approached the Assignee to take the EXCLUSIVE assignment of the copyright for the film / movie / property(s) mentioned in SCHEDULE – A in Tamil Language incorporating all rights connected with Internet Rights, Mobile Phone Rights, Ringtone Rights, Internet Cable, Direct to Home (DTH), Internet Protocol Television Rights (IPTV), Exclusive Caller Ring Back Tone (CRBT), Video ring back tone (VRBT), and Internet Connected devices, Telecasting Rights, Telephonic Rights, Movies on demand (MOD), Video on Demand (VOD), Subscription Video on demand (SVOD), Audio MP3 internet rights, Web Technologies and all other electronic medias, commercial & non-commercial, Entire World rights including India for PERPETUAL RIGHTS FOR 99 YEARS (As mentioned in the link document period) with effect from the date of this Agreement.” _____________ https://www.mhc.tn.gov.in/judis Page No.23 of 57 C.S.(Comm Div).No.603 of 2019
40. In the written statement, the 2nd defendant, relevant Clause from Agreement of Memorandum dated 10.05.2009 between Duet Movies of the 5th defendant herein and M/s.SV Enterprises represented by its proprietor Mr.P.Babu reproduced. It reads as below:-
“..1 Rights to capture, transfer in a medium reassign,sub-license, lend for at a considerations the CD, VCD, DVD, VHS Rights, Internet rights, internet connected devices, mobile, phone rights, mobile phone connected devices, ringtone rights, cable TV rights, pay channel, pay per view, Air borne, Blu-Ray, IPTV rights, CRBT-VRBT rights and Telephonic rights, MOD, VOD, SVOD, Sa Borne,Web technologies distributor, exploitation and transferable connected devices and all other related rights grant Entire world Exclusive rights including India.
2. The picture period of period perpetual period (99) ninety nine years the date of this agreement/picture and sound including Beta/DVCAM. This Internet mobile phone rights grand exclusive rights P. Babu...........
6. Rights & period CD, VCD, DVD, VHS Rights, Interniet rights, internet connected devices, mobile phone rights, mobile phone connected devices, ring tones rights. IPTV rights, telephone rights, cable 'TV rights, pay channel, pay per view, Air borne rights, Bin-Ray, MOB-VOD, SVOD, CRBT, VRBT, Web technologies distributor, exploitation and transferable connected devices and all other related rights grant Entire World Exclusive Rights period perpetual period (99) ninety nine years date of this _____________ https://www.mhc.tn.gov.in/judis Page No.24 of 57 C.S.(Comm Div).No.603 of 2019 agreement”
41. Although, the written statement of the 2nd defendant refers to the link documents viz., Agreement of Memorandum dated 10.05.2009 between the 5th defendant and S.V.Enterprises and Memorandum of Understanding between the said S.V.Enterprises and R.Subramani dated 11.02.2015, which were also mentioned in the proof affidavit of D.W.2, P.Ananda Rao, Authorized Signatory of the 2nd defendant, these documents were not allowed to be marked by the plaintiff stating that they are not originals.
42. These two Agreement of Memorandum dated 10.05.2009, between the 5th defendant and S.V.Enterprises and the Agreement of Memorandum dated 11.02.2015 allegedly signed between the S.V.Enterprises and R.Subramani are supposed to be the pre-cursor to Ex.D10 Agreement of Memorandum dated 27.02.2015 signed between the said R.Subramani and the 2nd defendant and precursor to Ex.D3 Service Agreement between the 1st defendant and the 2nd defendant.
43. Two documents, namely Agreement of Memorandum dated _____________ https://www.mhc.tn.gov.in/judis Page No.25 of 57 C.S.(Comm Div).No.603 of 2019 10.05.2009 between the 5th defendant and S.V.Enterprises and Agreement of Memorandum dated 11.02.2015 between S.V.Enterpries and R.Subramani which have been referred to as the link documents in Ex.D10 Agreement of Memorandum dated 27.02.2015 were crucial.
44. In Ex.D10 Agreement of Memorandum dated 27.02.2015, the Assigner namely R.Subramani has claimed the following rights:-
“Whereas the Assignor (PRODUCER / COPY RIGHT HOLDER / AUTHORISED PERSON) approached the Assignee to take the EXCLUSIVE assignment of the copyright for the film / movie / property(s) mentioned in SCHEDULE – A in Tamil Language incorporating all rights connected with Internet Rights, Mobile Phone Rights, Ringtone Rights, Internet Cable, Direct to Home (DTH), Internet Protocol Television Rights (IPTV), Exclusive Caller Ring Back Tone (CRBT), Video ring back tone (VRBT), and Internet Connected devices, Telecasting Rights, Telephonic Rights, Movies on demand (MOD), Video on Demand (VOD), Subscription Video on demand (SVOD), Audio MP3 internet rights, Web Technologies and all other electronic medias, commercial & non-commercial, Entire World rights including India for PERPETUAL RIGHTS FOR 99 YEARS (As mentioned in the link document period) with effect from the date of this Agreement.” _____________ https://www.mhc.tn.gov.in/judis Page No.26 of 57 C.S.(Comm Div).No.603 of 2019
45. Thus, it emerges that while the plaintiff claims right in terms of Clause (3) & (4) of Ex.P2, Assignment Agreement dated
28.12.2007, the 1st defendant claims right over the film to show in their DTH platform as a Value Added Service to their subscribers as per terms in Ex.D3 – Service Agreement dated 04.04.2018 entered between the 1st and the 2nd defendants, Ex.D10 – Agreement of Memorandum dated 27.02.2015.
46. The 2nd defendant claims to have obtained rights from Ex.D10 – Agreement of Memorandum dated 27.02.2015 from the said R.Subramin who claimed to have got rights from the link documents viz Agreement of Memorandum dated 10.05.2009 between the 5th defendant and S.V.Enterprises and Agreement of Memorandum dated 11.02.2015 between S.V.Enterpries and R.Subramani.
47. The rights conferred on the 1st defendant vide Ex.D3 – Service Agreement dated 04.04.2018 are based on Ex.D10 – Agreement of Memorandum dated 27.02.2015 which purportedly flow from the _____________ https://www.mhc.tn.gov.in/judis Page No.27 of 57 C.S.(Comm Div).No.603 of 2019 Agreement of Memorandum dated 10.05.2009 allegedly signed between the 5th defendant and SV Enterprises represented by its proprietor Mr.P.Babu and Agreement of Memorandum dated 11.02.2015 between S.V.Enterprises and R.Subramani. The rival clauses from the respective documents as reproduced in the Written Statement of the 2 nd respondent reads as under:-
“Ex.D10 – agreement of memorandum dated 27.02.2015:
WHEREAS the Assignor (PRODUCER / COPY RIGHT HOLDER / AUTHORISED PERSON) approached the Assignee to take, the EXCLUSIVE assignment of the copyright for the film/movie/property(s) mentioned in SHEDULE-A in Tamil Language incorporating all rights connected with Internet Rights, Mobile Phone Rights, Ringtone Rights, Internet Cable, Direct to Home [DTH], Internet Protocol Television Rights [IPTV], Exclusive Caller Ring Back Tone [CRBT], Video ring back tone [VRBT], and Internet Connected devices. Telecasting Rights, Telephonic Rights, Movies on demand [MOD], Video on Demand [VOD], Subscription Video on demand [SVOD], Audio MP3 internet rights, Web Technologies and all other electronic medias, commercial & non- commercial, Entire World rights including India for PERPETUAL RIGHTS FOR 99 YEARS (As mentioned in the link document period) with effect from the date of this Agreement.” _____________ https://www.mhc.tn.gov.in/judis Page No.28 of 57 C.S.(Comm Div).No.603 of 2019
48. The rights that were conferred by the 2nd defendant to the 1st defendant vide Ex.D3 – Service Agreement dated 04.04.2018 read as under:
“2.3 Conditions for use of Licensed Content:
All rights, title and interest in the ownership of the Content shall remain the sole and exclusive property of the Licensor or such other third parties who may be the owners of the Content. However, for the purpose of this Agreement, the Content shall be maintained and controlled by the Licensor. The Licensee agrees that it is being granted a non-sub licensable and non-exclusive license in the Licensed content for the limited purpose of distributing the Content to the Subscriber(s)through its Value Added Service(s) on the DTH Platform for the Term and within the Territory as explicitly mentioned in this Agreement.
2.4 Rights Granted Licensee shall be entitled to use the Content/Name/Trademark/Logo of the Licensor for the purpose of:
(i) Making the Content available to its DTH Subscribers on all of its existing and future brands, whether created or acquired at such terms and conditions including commercial term, as it may deem fit;
(ii)Promoting the Content and the Service(s) under this Agreement;
(iii)Distributing the Content to Subscribers through the Service(s);
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(iv)Advertisement and promotion of the Service(s) and the DTH Platform,through all modes including print, electronic, radio, television etc; and
(v) All such other incidental and necessary purposes which are mutually agreed upon by the Parties for providing and promoting the Service(s); and 2.5 Without prejudice to the generality of the foregoing provisions, in the event Licensor's rights over any of the individual piece/s of content comprising of the Content is terminated and/or expires and/or are adversely affected, then Licensor shall be responsible to withdraw such Content from the Licensee and immediately inform the Licensee so as to enable the Licensee to stop displaying such Content.”
49. In Ex.D3 – service agreement dated 04.04.2018, the 2nd defendant has also stated that the 2nd defendant will indemnify the 1st defendant as per Article 10 of the service agreement dated 04.04.201to indemnify, defend and hold the 1st defendant harmless, including each and all promoters, directors, officers, employees, etc., against all liabilities penalties, damages, etc.
50. A comparison of rights conferred in Ex.P2 dated _____________ https://www.mhc.tn.gov.in/judis Page No.30 of 57 C.S.(Comm Div).No.603 of 2019 28.12.2007 – Assignment Agreement executed by the 1st defendant to the 5th defendant in favour of the plaintiff and the so called first link document viz. Memorandum of Agreement dated 10.05.2009 which is said to be have been executed by the 5th defendant in favour of one S.V. Enterprise are produced below:-
Memorandum of Agreement dated Ex. P2 Assignment Agreement 10.05.2009 dated 28.12.2007
1. Rights to capture, transfer in a 3. The Assignment of RIGHTS in medium reassign, sub-license, lend the said Film for broadcast will for at a consideration the CD, VCD, be the exclusive and absolute DVD, VHS Rights, Internet rights, assignment to the "ASSIGNEE"
internet connected devices, mobile, or their authorised persons of the phone rights, mobile phone copyright for broadcasting the connected devices, ringtone. rights, said Film through Broadcasting cable TV rights, pay channel, pay via a Satellite Broadcasting per view, Air borne, Blu-Ray, IPTV Network; Cable Television rights, CRBT-VRBT rights and Network; Content Broadcasting; Telephonic rights, MOD, VOD, SOD, Sa Borne, Web technologies Public Service Broadcasting; distributor, exploitation and Channel Private Communication; transferable connected devices and Direct-To-Home Broadcasting, all other related rights grant Entire Terrestrial Television world Exclusive rights including Broadcasting; Public Service India. Broadcasting Channels including all channels of Doordarshan and
2. The picture period of period through cables intended to be perpetual period (99) ninety mine received by general public years thy date of this through medium of relay stations agreement/picture and sound (hereinafter collectively referred including Beta/DVCAM. This to as "RIGHTS"). The RIGHTS Internet mobile phone rights grand shall include subtitling RIGHTS exclusive rights P. Babu. into English all other Indian languages but shall not include _____________ https://www.mhc.tn.gov.in/judis Page No.31 of 57 C.S.(Comm Div).No.603 of 2019
6. Rights & period CD, VCD, dubbing RIGHTS. It is expressly DVD, VHS Rights, Internet rights, understood and agreed by the internet connected devices, mobile ASSIGNEE that the assignment phone rights, mobile phone shall be limited to the existing connected devices, ring tones and known RIGHTS as assigned rights, IPTV rights, telephone in the Said Film for the Term of rights, cable TV rights, pay channel, this Agreement in the Territory pay per view, Air borne rights, Bin- mentioned in the schedule Ray, MOB-VOD, SOD, CRBT, hereunder. All copy RIGHTS that VRBT, Web technologies have not been specifically distributor, exploitation and granted/assigned by the transferable connected devices and ASSIGNOR to the ASSIGNEE all other related rights grant Entire shall at all times belong World Exclusive Rights period exclusively to the ASSIGNOR perpetual period ( 99) ninety nine (which includes all theatrical years date of this agreement". RIGHTS) and shall continue to vest with the ASSIGNOR only.
4. The ASSIGNOR further assigns the video on demand RIGHTS, Internet, IP TV and Mobile Phone/TV RIGHTS on non-exclusive basis to the ASSIGNEE. The ASSIGNEE further agrees not to assign or use the video on demand RIGHTS for a period of 2 (Two) years from the date of telecast of the film-by the ASSIGNEE.
5. The ASSIGNOR hereby undertake that they shall not release the Home Video of the said Film in all formats viz. VCD, DVD, HD-DVD, Blue-Ray, Microchips and all current and future physical video formats until the completion of the first satellite telecast (*First 'Telecast Date") of the said Film by the ASSIGNEE on their _____________ https://www.mhc.tn.gov.in/judis Page No.32 of 57 C.S.(Comm Div).No.603 of 2019 channel, which shall be twelve months from the Theatrical Release of the said Film and the ASSIGNOR shall be at liberty to release the Home Video Devices of the said Film in any and all format, immediately after the first Satellite telecast by the ASSIGNEE. However, the ASSIGNEE shall be at liberty to telecast the said Film after twelve months, but not later than fifteen months from the date of theatrical release of the said Film, if they are unable to find a suitable telecast date prior to that date, due to want of festival season.
The ASSIGNOR will be bound to wait for the release of home video in any or all formats, till the completion of first telecast of the said Film by the ASSIGNEE in their channel, which will not be later than fifteen months from the dale of theatrical release.
However, in the event that the ASSIGNEE has not telecast the said film even after fifteen months from the date of Theatrical Release, it is hereby agreed by the ASSIGNEE that the ASSIGNOR shall be at liberty to release the Home Video of the said Film in any or all formats immediately thereafter.
51. Thus, a reading of the above clauses indicate that the rights that have been conferred on the plaintiff in terms of Clause 3 of Ex.P2 – _____________ https://www.mhc.tn.gov.in/judis Page No.33 of 57 C.S.(Comm Div).No.603 of 2019 Assignment Agreement dated 28.12.2007 is for a perpetual period as per Schedule-I. The tentative date of release of the film was 14.02.2008. The rights conferred under Clause 4 have been conferred on the plaintiff under Ex.P2 Assignment Agreement dated 28.12.2007 for a period of two years from the date of telecast of the film by the plaintiff.
52. Schedule-I to Ex.P2 Assignment Agreement dated 28.12.2007 also indicates that the director of the movie is Arun Prasad, who is popularly known as Viji. Agreement dated 10.05.2009 between the 5th defendant and M/s. S.V. Enterprise has not been allowed to be marked, as the original of the said agreement was not available with the 2nd defendant.
53. The plaintiff would contend that by telecasting the Tamil Feature Film “VELLITHERAI” on 18.10.2018 by the 1st defendant in their DTH platform 'ThiraiUlagam', violated Clause 3 of Ex.P2 Assignment Agreement dated 28.12.2007, between the plaintiff and the 3rd defendant to the 5th defendant.
_____________ https://www.mhc.tn.gov.in/judis Page No.34 of 57 C.S.(Comm Div).No.603 of 2019
54. On the other hand, the contention of the 2nd defendant is that the rights alleged to have been violated by the 1st defendant and the 2nd defendant by telecasting the Tamil Feature Film “VELLITHERAI” in 'ThiraiUlagam' on the 1st defendant's DTH platform was video on demand and would have attracted only Clause 4 of Ex.P2 – Assignment Agreement dated 28.12.2007.
55. A reading of the above clause would indicate that Clause 3 of Ex.P2 Assignment Agreement dated 28.12.2007 confers a rights broadly. Whereas the rights that has been conferred under clause 4 was for a period of two years on non-exclusive basis from the date of telecast of movie by the assignee. Thereafter only the Assignor could assign such rights at the expiry of two years. In other words, the 3rd defendant to the 5th defendant can assign the rights to any person other than the plaintiff after the expiry of 2 years from the date of telecast by the plaintiff.
56. The primordial issue to be considered is whether the Tamil Feature Film “VELLITHERAI” telecasted on 18.10.2018 by the 1st defendant pursuant to Ex.D3 Service Agreement dated 04.04.2018, _____________ https://www.mhc.tn.gov.in/judis Page No.35 of 57 C.S.(Comm Div).No.603 of 2019 between the 1st defendant and the 2nd defendant violated the rights of the plaintiff in Clause 3 or Clause 4 of Ex.P2 Assignment Agreement dated 28.12.2007.
57. Further, under Sections 91 & 92 of the Indian Evidence Act, 1872, the evidence of terms of contract, grants and possession of the property, dispossession of the property, are to be reduced in the form of evidence. As per Section 91 of the Indian Evidence Act, 1872, when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
58. Explanation 3 to Section 91 of the also makes it clear that _____________ https://www.mhc.tn.gov.in/judis Page No.36 of 57 C.S.(Comm Div).No.603 of 2019 the statement, in any document whatever, of a fact other than the facts referred to in the section, shall not preclude the admission of oral evidence as to the same fact.
59. Explanations to Section 91 of the Act are important. They read as under:
Explanation 1 Explanation 2 Explanation 3 This section applies Where there are more The statement, in equally to cases in originals than one, one any document which the contracts, original only need be whatever, of a fact grants or dispositions of proved. other than the facts property referred to are referred to in this contained in one section, shall not document, and to cases preclude the in which they are admission of oral contained in more evidence as to the documents than one. same fact.”
60. Section 91 of the Indian Evidence Act, 1872 reads as under:-
“91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. –– When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all _____________ https://www.mhc.tn.gov.in/judis Page No.37 of 57 C.S.(Comm Div).No.603 of 2019 cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
61. In fact, there is an embargo under Section 92 of the Indian Evidence Act, 1872 for giving oral evidence of contents of the documents. As per Section 92 of the Indian Evidence Act, 1872, when the terms of any contract have been reduced to in writing, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. Thus, there was no embargo to admitting and marking of these documents viz., Agreement of Memorandum dated 10.05.2009 and the Agreement of Memorandum dated 11.02.2015 as secondary piece of evidence.
62. Marking of two link documents viz. Agreement of Memorandum dated 10.05.2009 allegedly signed between the 5th _____________ https://www.mhc.tn.gov.in/judis Page No.38 of 57 C.S.(Comm Div).No.603 of 2019 defendant and M/s. S.V.Enterprises and the Agreement of Memorandum dated 11.02.2015 between the S.V.Enterprises and R.Subramani was objected by the plaintiff. The cumulative result on account of sustaining the objection of the Plaintiff during Trial for marking these two documents as made the eliciting of truth difficult.
63. These two link document viz. Agreement of Memorandum dated 10.05.2009 and Agreement of Memorandum dated 11.02.2015 ought to have been marked without prejduce to the rights of the plaintiff to their proof, admissibility and relevancy. Instead, these documents are not available for perusal.
64. It appears that the 3rd defendant along with the 4th defendant and the 5th defendant had transferred the copyrights in the Tamil Feature Film “VELLITHERAI”, to the plaintiff vide Ex.P2 – Assignment Agreement dated 28.07.2007. Neither the plaintiff has summoned the 5th defendant as a witness to dislodge the 2nd defendant version regarding Agreement of Memorandum dated 10.05.2009 nor the 1st defendant and the 2nd defendant have produced R.Subramani or the _____________ https://www.mhc.tn.gov.in/judis Page No.39 of 57 C.S.(Comm Div).No.603 of 2019 proprietor of S.V.Enterprises as a witness. Thus, the truth is the casuality. They have also not summoned the 5th defendant to give statement of surrounding viz., Agreement of Memorandum dated 10.05.2009.
65. In terms of Section 61 of the Indian Evidence Act, 1872, the contents of document may be proved either by “primary” or “secondary evidence”.
66. The expression “primary evidence” has been defined in Section 62 to mean the document itself which is produced for the inspection of the Court. Obviously two link documents could not be marked as “primary evidence”
67. The definition of “primary evidence” in Section 62 of the Indian Evidence Act, 1872 reads as under:-
SECTION 62 OF THE INDIAN EVIDENCE ACT, 1872 Primary Evidence - Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. –– Explanation 2. ––
Where a document is executed Where a number of documents
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C.S.(Comm Div).No.603 of 2019
in several parts, each part is are all made by one uniform
primary evidence of the process, as in the case of
document. Where a document printing, lithography or
is executed in counterpart, photography, each is primary
each counterpart being evidence of the contents of the
executed by one or some of the rest; but, where they are all
parties only, each counterpart copies of a common original,
is primary evidence as against they are not primary evidence
the parties executing it. of the contents of the
original.”
68. These two link documents viz., Agreement of
Memorandum dated 10.05.2009 and Agreement of Memorandum dated 11.02.2015 which are said to have been executed between the 5th defendant and S.V.Enterprises and S.V.Enterpries and R.Subramani respectively have been also referred to as link documents in Ex.D10 – Agreement dated 27.02.2015.
69. As per Section 63(3) of the Indian Evidence Act, 1872, copies made from or compared with the original are secondary evidence.
These two link documents would have thus qualified as “secondary evidence” under Section 63 of the Indian Evidence Act, 1872. For the sake of clarity Section 63 of the Indian Evidence Act, 1872 is reproduced below:-
“63. Secondary evidence. –– Secondary evidence means and includes –– _____________ https://www.mhc.tn.gov.in/judis Page No.41 of 57 C.S.(Comm Div).No.603 of 2019 (1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.” _____________ https://www.mhc.tn.gov.in/judis Page No.42 of 57 C.S.(Comm Div).No.603 of 2019
70. When read in conjunction with Ex.D10 dated 27.02.2015, these two link documents viz., Agreement of Memorandum dated 10.05.2009 and Agreement of Memorandum dated 11.02.2015 are to be treated as “secondary evidence” within the meaning of Section 63 (2), (3) & (5) of the Indian Evidence Act, 1872 as they are copies made from the original.
71. These two link documents could have been marked as secondary evidence under Section 65(a) & (c) of the Indian Evidence Act, 1872 subject to admissibility, proof and relevancy.
72. As per Section 65, any secondary evidence of the contents of the documents is admissible. However, the plaintiff has objected the marking of these documents when they were attempted to be marked through D.W.2 as a piece of evidence on behalf of the 2nd defendant.
73. As per Section 64 of the Indian Evidence Act, 1872, the documents must be proved by “primary evidence” except in the case mentioned in Section 65. Under Section 65 of the Indian Evidence Act, 1872, “secondary evidence” may be given of the existence, conditions or _____________ https://www.mhc.tn.gov.in/judis Page No.43 of 57 C.S.(Comm Div).No.603 of 2019 contents of the documents under the following cases:-
“65. Cases in which secondary evidence relating to documents may be given.––Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-
(a) when the original is shown or appears to be in the possession or power –– of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1 [India] to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. _____________ https://www.mhc.tn.gov.in/judis Page No.44 of 57 C.S.(Comm Div).No.603 of 2019 In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.”
74. The 2nd defendant ought to have complied with Section 65(a) & (c) of the Indian Evidence Act, 1872. Even if the original of the Agreement of Memorandum dated 10.05.2009 allegedly signed between the 5th defendant and M/s.S.V.Enterprises and the Agreement of Memorandum dated 11.02.2015 allegedly signed between the M/s.S.V.Enterprises and R.Subramani were not available, it was open for the plaintiff as also the 2nd defendant to have summoned the 5th defendant to prove and disprove each others version of the case. Similarly, the 2nd defendant ought to have summoned the said R.Subramani to give evidence to prove its case.
75. The 2nd defendant should have taken steps to issue _____________ https://www.mhc.tn.gov.in/judis Page No.45 of 57 C.S.(Comm Div).No.603 of 2019 summons to the 5th defendant and the proprietor of the said M/s. S.V.Enterprises as the 5th defendant is allegedly a Signatory to Agreement of Memorandum dated 10.05.2009 with M/s. SV Enterprises represented by its proprietor Mr.P.Babu.
76. The 2nd defendant should have also summoned Mr.P.Babu, the proprietor of M/s. SV Enterprises and the said R.Subramani who have allegedly signed Agreement of Memorandum dated 11.02.2015.
77. On the other hand, the 2nd defendant has merely marked Ex.D10 – Agreement of Memorandum dated 27.02.2015, which is said to have been executed between R.Subramani and the 2nd defendant herein.
78. Thus, neither the plaintiff nor the defendants have come forward to assist the Court in arriving at the truth surrounding execution of Ex.D10 – Agreement of Memorandum dated 27.02.2015, between R.Subramani and the 2nd defendant. Both the plaintiff and the 1st and the _____________ https://www.mhc.tn.gov.in/judis Page No.46 of 57 C.S.(Comm Div).No.603 of 2019 2nd defendants have left the Court to take a guess.
79. High Court is dealing with a peculiar situation as marking of documents has/have been delegated to the Master's Court. Ordinarily, a Civil Court record evidence is expected to proactive and record the evidence and take an active role during trial by taking note of conduct and demeanor of the parties. The Court is also expected to ask suitable question to elicit truth from the witnesses. The Court recording evidence is also expected to exercise its power under XVI of CPC, (which provision has remained untouched by the amendment to CPC under Commercial Court Act, 2015). This power could not be exercised as the recording of evidence by the Master's Court without proper involvement.
80. Under Order XVI Rule 14, if the Court thinks it is necessary, it may examine any person including the party to a suit who is not called as a witness by the party to the suit. The Court may, of its own motion call such person to be summoned as a witness to give evidence or to produce any document in his possession on a day to be appointed and Court may examine him or require him to produce such document. Such _____________ https://www.mhc.tn.gov.in/judis Page No.47 of 57 C.S.(Comm Div).No.603 of 2019 witnesses are called court witness. This power is to be exercised subject to the provisions of the Code regarding attendance and appearance of witness and to any law for the time being in force. _____________ https://www.mhc.tn.gov.in/judis Page No.48 of 57 C.S.(Comm Div).No.603 of 2019
81. Similarly, under Order XVI Rule 1A of CPC, any party to any suit may, without applying for summons under Rule 1, bring any witness to give evidence or produce documents. This avenue has also not been followed by the either the plaintiff or the defendant.
82. Thus, it was also open for this Court also to have summoned the witnesses independently.
83. Illustration (d) to Section 91 is relevant, which reads as under:-
“Illustration (d): A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion.”
84. Both the plaintiff and the 2nd defendant have failed to discharge their burden of proof. Under Section 102 of the Indian Evidence Act, 1872, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. _____________ https://www.mhc.tn.gov.in/judis Page No.49 of 57 C.S.(Comm Div).No.603 of 2019 However, under Section 103 of the Indian Evidence Act, 1872, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
85. Sections 102 to 104 & 106 of the Indian Evidence Act, 1872, are also relevant to this case. They read as under:-
“102. On whom burden of proof lies. –– The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact. –– The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
104. Burden of proving fact to be proved to make evidence admissible. –– The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
106. Burden of proving fact especially within knowledge. –– When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” _____________ https://www.mhc.tn.gov.in/judis Page No.50 of 57 C.S.(Comm Div).No.603 of 2019
86. The burden to prove facts especially within the knowledge of a person was upon such person. In this case, the plaintiff is placing reliance on Ex.P2 Agreement between the plaintiff and the 3rd defendant to the 5th defendant. While the 4th defendant has filed a written statement to support the case of the plaintiff. The 5th defendant ought to have been produced by the plaintiff as a witness or in the alternative Court ought to have summoned the 5th defendant in terms of order XVI Rule 14 of CPC to give evidence, so that the rival rights claimed by 2nd defendant on the strength of Ex.D10 Agreement of Memorandum dated 27.02.2015, Agreement of Memorandum dated 10.05.2009 and Agreement of Memorandum dated 11.02.2015 could have been allowed to be marked as secondary piece of evidence. Both the plaintiff and defendants have left it to the Court to guess as to whether who has the superior copy right over the Tamil Feature Film “VELLITHERAI”. _____________ https://www.mhc.tn.gov.in/judis Page No.51 of 57 C.S.(Comm Div).No.603 of 2019
87. The procedure followed by this Court under the Commercial Courts Act, 2015 read with practice guidelines / rules issued by this Court, is to hear the case after the trial is completed before the learned Master, in accordance with the case management under the Commercial Courts Act, 2015. The case is listed before the Court for final hearing after trial is completed. The parties file their convenience set consisting pleadings, evidence and the documents marked as Exhibits along with deposition. After hearing the parties, the Court reserves the case for pronouncing Judgment.
88. This practice of the truncating the pre-trial, trial as proceeding before the Master's Courts and post trial hearing of case before this Court and the Master's Courts results in stalemate like in the present case. The practic guidelines issued by this Court under the Commercial Courts Act, 2015 thus warrants suitable amendment to give more powers to the Master.
_____________ https://www.mhc.tn.gov.in/judis Page No.52 of 57 C.S.(Comm Div).No.603 of 2019
89. The plaintiff has also not established that the plaintiff had suffered loss of Rs.2,25,00,000/- since the Tamil Feature Film “VELLITHERAI” was telecasted on 21.10.2018 by the 1st defendant pursuant to Ex.D3 Service Agreement dated signed between the 1st defendant and the 2nd defendant on 04.04.2018.
90. Since neither the plaintiff nor the 1st defendant and the 2nd defendant have proved their rights by summoning the witness and documents mentioned above as per the provisions of the Indian Evidence Act, 1872, the plaintiff cannot succeed.
91. While succeeding in shutting out the 2nd defendant from introducing the link documents, the plaintiff cannot claim rights over the defendants.
92. Neither the plaintiff nor the 1st defendant and/or the 2nd defendant have summoned the 5th defendant to produce the copy of the _____________ https://www.mhc.tn.gov.in/judis Page No.53 of 57 C.S.(Comm Div).No.603 of 2019 Agreement dated 10.05.2019 and examined the 5th defendant. It cannot therefore be construed that either the plaintiff or the 1st defendant and / or the 2nd defendant have also established the exclusive copyright over the Tamil Feature Film “VELLITHERAI” superior to one another. It was incumbent on the part of the 1st defendant and the 2nd defendant has also summoned Mr.R.Subramani who had assigned the rights to the 2nd defendant under Ex.D10 Agreement of Memorandum dated 27.02.2015 on the strength of Agreement of Memorandum dated 11.02.2015.
93. Therefore, on a overall consideration of the facts and circumstances of the present case, law and the issues framed by this Court, the plaintiff is not entitled to the relief claimed for after shutting out the 2nd defendant marking Agreement of Memorandum dated 10.05.2009, which is said to have been executed between the said M/s.S.V. Enterprises and the 5th defendant and the Agreement of Memorandum dated 11.02.2015, which were allegedly the pre-cursor to Ex.D10 Agreement of Memorandum dated 27.02.2015 signed between Mr.R.Subramani and the 2nd defendant. The plaintiff cannot claim any _____________ https://www.mhc.tn.gov.in/judis Page No.54 of 57 C.S.(Comm Div).No.603 of 2019 relief by not allowing the 2nd defendant to make these link documents.
94. This Court has been incapacitated to answer the Issue Nos.(i) to (v) framed in the affirmative as to whether the plaintiff has exclusive copyright over the Tamil Feature Film “VELLITHERAI” and as to whether the 1st defendant by broadcasting the Tamil Feature Film “VELLITHERAI” on 21.10.2018 had violated or infringed any rights of the plaintiff under Ex.P2 Assignment Agreement dated 28.12.2007 signed between the plaintiff and the 3rd defendant to the 5th defendant.
95. Therefore, Issue Nos.(vi), (vii) and the Additional Issues are left unanswered to be decided as and when the fresh cause of action arises. The parties are entitled to maintain status quo as on date.
96. In the result, the present Civil Suit (Commercial Division) stands dismissed. Parties are directed to bear their own costs.
29.04.2024 (1/2) Speaking Order/Non-Speaking Order _____________ https://www.mhc.tn.gov.in/judis Page No.55 of 57