Delhi High Court - Orders
Phonographic Performance Limited vs Azure Hospitality Private Limited & Ors on 20 October, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 714/2022
PHONOGRAPHIC PERFORMANCE LIMITED ..... Plaintiff
Through: Mr.Rajiv Nayar and Mr.Chander
M. Lall, Sr. Advs., with Mr.Ankur
Sangal, Ms.Sucheta Roy, Mr.Ankit
Arvind, Mr.Raghav Vinayak Sinha
and Ms.Trisha Nag, Advocates
versus
AZURE HOSPITALITY PRIVATE LIMITED & ORS.
.....Defendants
Through: Mr.Sandeep Sethi and
Mr.Rajshekhar Rao, Sr.Advs., with
Mrs.Swati Sukumar, Mr.S.
Santanam Swaminadhan,
Mr.Kartik Malhotra, Ms.Abhilasha
Sharawat, Mr.Darsh Bansal and
Mr.Srisankar S., Advs. for D-1
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 20.10.2022
I.A. 17272/2022
1. Issue Notice.
2. Notice is accepted by Mr.Ankur Sangal, the learned counsel on behalf of the plaintiff/non-applicant.
3. Let reply to the application be filed by the plaintiff/non-applicant within a period of two weeks from today. Rejoinder thereto be filed within a period of two weeks thereafter.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.10.2022 16:32:124. The primary contention urged in the present application by the defendant no.1/applicant is that the interim injunction obtained by the plaintiff/non-applicant vide order of this Court dated 14.10.2022, is a result of concealment and mis-statement in the plaint. It is urged that the plaintiff has intentionally concealed from this Court that it had earlier filed a Civil Suit before the High Court of Bombay, being Commercial (IP) Suit (L.)/29686/2021, against various parties, including the defendant no.1 herein, praying inter alia for an order of injunction. In the said Civil Suit, vide an order dated 22.12.2021, the learned Single Judge of the High Court of Bombay denied the relief of ad-interim injunction to the plaintiff, subject however, to certain conditions. Thereafter, on 11.07.2022, the plaintiff chose to withdraw the said suit, without reserving any liberty to file a fresh suit on the same cause of action.
5. The learned senior counsel for the defendant no.1/applicant submits that these were material facts to be disclosed in the plaint, especially when the plaintiff is praying for ex-parte ad-interim injunction against the defendants without even serving an advance copy of the plaint and the documents.
6. On the other hand, the learned senior counsels for the plaintiff/non- applicant assert that the cause of action of the suit that was filed before the High Court of Bombay was entirely different. They submit that the plaintiff/non-applicant grants two distinct kinds of licences; one being an 'annual licence', while the other being an 'event-based licence'. The cause of action for filing of the suit before the High Court of Bombay was an 'event-based licence' for Christmas and New Year events, which had not been obtained by the defendant no.1/applicant, however, the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.10.2022 16:32:12 defendant no.1/applicant was publicly performing the sound recordings in which the plaintiff has an exclusive copyright without such licence. In the present case, the cause of action is the act of the defendant no. 1 publicly performing plaintiff's sound recordings without obtaining the 'annual licence'. They submit that the cause of action being entirely distinct, the provisions of Order XXIII Rule 1 of the Code of Civil Procedure, 1908 (in short, "CPC") and the bar contained therein would not be applicable. They place reliance on decisions in Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Company and Another, (1997) 1 SCC 99, Albert Judah Judah v. Rampada Gupta and Ors. AIR 1959 Cal 715 and K.S. Bhoopathy and Others v. Kokila and Others, (2000) 5 SCC 458 in support of their submissions.
7. They further submit that the defendant no.1/applicant has not asserted any right whereunder it is entitled to publically perform the sound recording wherein the plaintiff/non-applicant claims to have an exclusive copyright. They submit that in absence of assertion of any right by the defendant no.1/applicant, this Court has rightly restrained the defendant no.1/applicant from publicly performing the sound recording in its restaurant vide order dated 14.10.2022. In this regard, they place reliance on the judgment of this Court in Saregama India Limited v. Balaji Motion Pictures Limited and Others, 2019 SCC OnLine Del 10036.
8. I have considered the submissions made by the learned senior counsels for the parties.
9. At this stage, I do not wish to express any opinion on whether the present suit would be maintainable under the provisions of Order XXIII Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.10.2022 16:32:12 Rule 1 of the CPC, for the plaintiff/non-applicant having withdrawn the suit filed before the High Court of Bombay unconditionally and without reserving any liberty to file a fresh suit. However, I would, in this regard, note the prayers made by the plaintiff/non-applicant before the High Court of Bombay. The same are quoted hereinbelow:-
"(a) that this Hon'ble Court be pleased to grant a perpetual order and injunction restraining the Defendant by itself, its servants and agents, from in any manner from publicly performing or in any manner communicating the sound recordings works of the Plaintiff to the public, or allowing their premises or any premises under their control to be used for the said purposes, without license from the Plaintiff, or otherwise infringing copyright in any work owned by the Plaintiff;
(b) that this Hon'ble Court direct the
Defendants, their servants, agents,
employees and officers to deliver up for
destruction to the Plaintiff or its authorized representatives or attorneys, all products, computers, electronic devices, electronic storage devises including but not limited to CDS, Pen Drives, memory cards, hard disks, hard drives etc. containing the works/sound records or any part thereof in which the Plaintiff has rights pertaining to Member Music Companies.;
( c) that pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to pass an order and injunction restraining the Defendant by itself, its servants and agents, from m any manner publicly performing or m any manner communicating the sound recordings works of the Plaintiff to the public, or allowing Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.10.2022 16:32:12 their premises or any premises under their control to be used for the said purposes, without license from the Plaintiff, or otherwise infringing copyright in any work owned by the Plaintiff;
( d) that pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to appoint the Court Receiver, High Court, Bombay, with all powers under Order XL, of the Code of Civil Procedure, 1908, including the power to break open any lock, gate or door to enter any place at any time, even after sunset and on holidays, without prior notice, and with police protection is so required, to search, seize, seal, destroy, erase and/or store the all products, computers, electronic devices, electronic storage devises including but not limited to CDS, Pen Drives, memory cards, hard disks, hard drives etc. containing the said works/sound records or any part thereof in which the Plaintiff has rights pertaining to the Member Music Companies listed in Exhibit C to the plaint;
(e) that pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to direct Defendants to submit the recordings of the entire event and back ground music of sound recordings in which the Plaintiff has copyright played by the Defendants to the Plaintiff forthwith.
(f) for costs;"
10. The prayers made in the present suit are identical to the prayers made before the High Court of Bombay and are reproduced hereinbelow:-
"(i) A decree of permanent injunction restraining the Defendants, their directors, partners or proprietors, licensees, assigns, officers, servants, agents, representatives, contractors, subsidiaries, Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.10.2022 16:32:12 franchisees, sister concerns and any other person working for and on behalf of the Defendants from doing any act including exploitation/ use of the Plaintiff's copyrighted works in the repertoire available on Plaintiff's website https://www.pplindia.org/songs in all its outlets including but not limited to the outlets mentioned Paragraph No. 14 of the present Plaint, which amounts to infringement of the Plaintiff's copyright;
(ii) A decree of damages of INR 2,00,01,000 or any other amount which is ascertained at a later stage. The Plaintiff undertakes to deposit necessary additional court fee as may be directed by this Hon'ble Court on a later stage;
(iii) Costs of the litigation be awarded to the Plaintiff; and/or"
11. I would also take note of the order dated 22.12.2021, passed by the High Court of Bombay in the abovementioned suit, wherein the ad- interim injunction was refused to the plaintiff, albeit with certain conditions on the defendants, observing as under:-
"7. In the backdrop of a number of orders passed by this Court in the preceding five to six years as well as the judgments passed by the Delhi High Court in the case of Novex Communication Pvt. Ltd. vs. Lemon Tree Hotels Ltd. and Anr. and the Madras High Court in the case of M/s. Novex Communications Pvt. Ltd. vs. DXC Technology Pvt. Ltd. in Civil Suit Nos. 407 and 413 of 2020 on 8th December, 2021, one of the issues which would warrant consideration is whether the plaintiff is entitled to grant license in the 'sound recording' in which the plaintiff claims Copyright, sans registration envisaged by Section 33 of the Copyright Act, 1959."
12. Therefore, one of the primary reasons which weighed with the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.10.2022 16:32:12 High Court of Bombay in declining the order of injunction to the plaintiff/non-applicant was the right of the plaintiff/non-applicant itself to claim any copyright in the sound recording under Section 33 of the Copyright Act, 1957 was in dispute. In my opinion, the said fact, therefore, was most material to be disclosed in the plaint, especially, when the plaintiff/non-applicant is seeking an ex-parte order of injunction against the same defendants against whom it had been unsuccessful in another Court.
13. The fact that the said suit, even though as claimed by the plaintiff/non-applicant to be on a separate cause of action, was withdrawn by the plaintiff/non-applicant unconditionally, was also an important and material fact to be disclosed by the plaintiff/non-applicant in the present suit. At this stage, I take note of the disclosure, if one may call this to be a disclosure, made by the plaintiff/non-applicant in the present suit, as under:-
"28. That there are no previous and pending litigation between the Plaintiff and the Defendants herein before this Hon'ble Court."
14. Clearly, the plaint not only suffers from concealment, but in my prima facie opinion, also suffers from a deliberate and intentional mis- statement on part of the plaintiff/non-applicant.
15. The above ground itself is sufficient to, in fact, vacate the ex-parte ad-interim injunction as also to deny any relief to the plaintiff in the present suit. However, time is granted to the plaintiff/non-applicant to explain the above mis-conduct and concealment by way of a reply to the present application.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.10.2022 16:32:1216. Taking into account the above, however, the ex-parte ad-interim order of injunction passed vide order of this Court dated 14.10.2022 shall remain suspended till further orders.
17. At this stage, I am restraining myself from issuing a notice of contempt to the plaintiff in the suit, and this issue shall also be considered by this Court on receiving the reply from the plaintiff/non-applicant to the present application.
18. List on 15th December, 2022.
NAVIN CHAWLA, J OCTOBER 20, 2022/s Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.10.2022 16:32:12