Bombay High Court
Trimurti Films Pvt. Ltd vs Super Cassettes Industries Pvt. Ltd. ... on 17 February, 2021
Author: K.R. Shriram
Bench: K.R.Shriram
Digitally signed 1/3 27.NMCD-646-2017.doc
by Gauri A.
Gaekwad
Gauri A. Date:
Gaekwad 2021.02.18
17:00:45
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL NOTICE OF MOTION NO.646 OF 2017
IN
COMMERCIAL IP SUIT NO.723 OF 2017
Trimurti Films Private Limited ....Applicant/Plaintiff
V/s.
Super Cassettes Industries Pvt. Ltd. & Ors. ....Defendants
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Mr. Nishad Nadkarni i/b. Khaitan and Co. for applicant/plaintiff.
Ms. Madhu Gadodia i/b. Naik Naik and Co. for defendants.
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CORAM : K.R.SHRIRAM, J.
DATED : 17th FEBRUARY 2021
P.C. :
1 The ad-interim order has been in force since 22 nd August 2017.
The operative part of order dated 22nd August 2017 reads as under :
ORDER
(a) Defendants are hereby restrained from releasing the film "Baadshaho" containing the song "Keh Doon Tumhe" as in Exhibit- H to the plaint and as described in paragraph-10 of the plaint. It is clarified that defendants may release the film "Baadshaho" by removing the infringing song from the film;
(b) Defendants are also restrained by an injunction from selling or otherwise distributing copies of CDs, cassettes or any other media containing the infringing song "Keh Doon Tumhe" through any physical or non physical medium including without limitation in cinema halls, the internet, satelites, DVDs, blue ray discs,removable or embedded drives, ring tones, MP3, CDs, caller tunes or any soft/ digital method of defraying the said infringing material either on visual medium or an audio medium.
16. Defendants to file affidavit in reply within 3 weeks. Rejoinder if any, to be filed within 2 weeks thereafter. Notice of Motion made returnable after six weeks.
2 The movie has been released in 2017 without the song "Keh
Gauri Gaekwad
2/3 27.NMCD-646-2017.doc
Doon Tumhe". Therefore, no prejudice will be caused today to defendants if the order is confirmed as order in the notice of motion. 3 Accordingly, the order dated 22nd August 2017 is confirmed as order in the notice of motion and notice of motion accordingly stands disposed.
4 Ms. Gadodia states that her instructions are to see if the matter could be amicably resolved. Mr. Nadkarni states that they have received an offer which is under consideration by plaintiff and if the parties settle the matter, then they shall apply to the Court for filing settlement terms. At the same time, suit cannot be kept in abeyance on the hopes that parties will settle the matter one day because last 3 and ½ years the matter has not been settled.
5 Mr. Nadkarni states that the writ of summons have been dispatched some time in October 2017 and has been served on defendants on various dates and he relies upon an affidavit of one Pravin V. Kajrekar, Bailiff, affirmed on 4th January 2018. Therefore, the time permitted under Order 8 Rule 1 of the Code of Civil Procedure has expired some time in end of April or beginning of May 2018. No written statement has been filed till date. Therefore, under Order 8 Rule 1, defendants have forfeited their right to file written statement.
6 When the Court mentioned that it was inclined to pronounce judgment against defendants under the provisions of Order 8 Rule 10 of the Gauri Gaekwad 3/3 27.NMCD-646-2017.doc Code of Civil Procedure, Ms. Gadodia requested the matter be stood over for directions by two weeks so that she can take instructions. 7 Stand over to 3rd March 2021 for directions.
(K.R. SHRIRAM, J.) Gauri Gaekwad