Delhi District Court
Durga Dass Publications (P) Ltd vs Hindustan Times Ltd on 31 October, 2011
IN THE COURT OF SH. RAKESH KUMAR : ADJ03 (C): DELHI
Suit No.81/08
Unique Case ID No.02401C0772472003
Durga Dass Publications (P) Ltd.,
72, Todar Mal Road, New Delhi - 110001.
Through its Director Sh. Sanjeet. .....Plaintiff.
Versus
1. Hindustan Times Ltd.
18/20, Kasturba Gandhi Marg,
New Delhi - 110001.
2. Coca Cola India
Enkay Tower, Vanitya Vihar,
Udyog Vihar, PhaseV,
Gurgaon - 122106.
3. Atul Sethi
KG1/22, Vikas Puri,
New Delhi - 110008. .....Defendants.
J U D G M E N T
1. The instant suit for Damages, Perpetual Injunction and Rendition of Accounts has been filed by the above named plaintiff company through it Director against the aforesaid defendants interalia praying for the following reliefs:
(i).to pass a decree for damages to the tune of Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.1 of pages 48 Rs.5,05,000/ as loss and damages suffered by the plaintiff.
(ii).to pass a decree for Perpetual Injunction thereby restraining the defendants from publishing any other material from the book "The Connoisseur Handbook on Eating Out".
(iii).to pass a decree thereby directing the defendants to render true account in respect of the magazine sold by the said defendants, infringing the provisions of Copyright.
(iv).Cost of the suit is also demanded.
2. As per plaint, the plaintiff is a company registered under the Companies Act, 1956 which is engaged in the business of publication and having its registered office at 72, Todarmal Road, New Delhi 110001, whereas, the defendants No.1 & 2 are the companies duly incorporated under the Companies Act, 1956 and having their registered office at 1820, Kasturba Gandhi Marg, New Delhi and Enkay Tower, Vanitya Nikunj Udhog Vihar, PhaseV, Gurgaon 122106 respectively. In November 1997, the plaintiff published a book titled "The Connoisseur Handbook on Eating Out" which contained a systematic compilation of various restaurants in Delhi with their respective photographs and a brief write up about the restaurants. The restaurants were categorized according to the cuisine being served by them. All the photographs published in the book titled "The Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.2 of pages 48 Connoisseur Handbook on Eating Out" were photographed by Hemant Mehta, who was working on a contractual basis with the plaintiff since August, 1997 and after completing his assignment had handed over all the negatives of the photographs to the plaintiff. The plaintiff have used some of the photographs in the said book. All the photographs used by the plaintiff are of empty restaurants. Generally, restaurants do not allow photographs of empty restaurants to be taken and published because it is adverse publicity for them. The defendant No. 3 was working as marketing coordinator with the plaintiff, when the book titled "The Connoisseur Handbook on Eating Out" was published. On 13.04.1998, defendant no.1 published and circulated a magazine titled "Gourmet Fare" with their daily English edition "The Hindustan Times". The said magazine was sponsored by defendant no.2 and has been compiled and written by defendant no.3. The layout of the magazine published by defendant No.1 is similar to the layout of the plaintiff's book. As many as seven photographs published by the defendant No.1 in their magazine are exactly the same, which have already been published by the plaintiff in their book. The defendant No.1 acknowledged in their magazine that two photographs published by them were photographed by Hemant Mehta. But the same were published without the permission Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.3 of pages 48 of the plaintiff or the photographer. The defendant No.1 has also used some of the unpublished photographs. The plaintiff has already applied for the copyright of the book on 20.04.1998. Moreover, copyright in a literary work exists with the publisher/author from the date of publication. By reason of the aforesaid, the plaintiff as the copyright holder has the exclusive right and monopoly in respect of all the material published including the photographs published in the book titled as "The connoisseur Handbook on Eating Out". The book published by the plaintiff has been in circulation since January, 1998 and is available on all dealings book shops. The defendants were aware of the said publication. In any event the defendant No.3 was at all material time aware of the said publication and knowingly used the material from the said book in the magazine titled "Gourmet Fare". The defendants have violated the provisions of Copyright Act. The infringement of the copyright were committed by the defendants during the validity of the said copyright, which is still valid, continuing and subsisting. By reason of the aforesaid wrongful and illegal acts of infringement by the defendants, the plaintiff has suffered and continue to suffer financial loss, injury and damage. It is also averred that by reason of the aforesaid, the plaintiffs are entitled to claim Rs.5,05,000/, which is the estimated loss and damage suffered by Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.4 of pages 48 the plaintiffs. Unless the defendants are not restrained by this court they will continue to infringe the copyright referred to herein above by publishing material from the said book and by using the photographs. It is also stated that the plaintiff sent a Legal Notice to the defendants through their counsel on 13.04.1998, which was duly received and replied by the defendants whereby they denied having violated the provisions of Copyright. The cause of action for filing the present suit arose in favour of the plaintiff and against the defendants when the magazine was published by defendants on 13.04.1998 and the same is a continuing one. The suit has been properly valued for the purpose of court fee and jurisdiction. This Court has territorial jurisdiction to try and entertain the present suit.
3. The defendants contested the suit of the plaintiff by filing their separate Written Statements.
4. In its Written Statement, the defendant no.1 has stated that every book of restaurant would contain a systematic compilation of various restaurants with their respective photographs and a brief write up about the restaurants and the cuisine being served by them. The plaintiff cannot under any circumstances claim a copyright over the said compilation. It is also stated that the copyright can exist only in form and not in idea or information. The plaintiff can not claim any Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.5 of pages 48 monopoly in the subject matter. It is denied and disputed that all the photographs published in the book titled "The Connoisseur Handbook on Eating Out" were photographs by Sh. Hemant Mehta or that Sh. Hemant Mehta was working on a contractual basis with the plaintiff since August 1997 and after completing his assignment had handed over all the negatives to the plaintiff or that the plaintiff have used some of the photographs in the said book. It is denied that the defendant No.3 was working as Marketing Coordinator with the plaintiff when the book titled "The Connoisseur Handbook on Eating Out" was published. It is pointed out that in the legal notice dated 13.04.1998 sent by the plaintiff's Advocate to the defendant no.1 in para 4 and the aforesaid book, it has been stated that the defendant no.3 was then working with the plaintiff as Assistant Editor/Marketing Coordinator. It is denied that the layout of the magazine published by defendant No.1 is similar to the layout of the plaintiff's book. It is not denied that defendant No.1 has acknowledged in their magazine that two photographs published by defendant No.1 were photographs by Sh. Hemant Mehta. In fact, defendant no.1 has acknowledged three photographs by Sh. Hemant Mehta. It is submitted that the photographs published in the magazine by defendant no.1 were photographs which had been given to defendant no.1 by the Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.6 of pages 48 restaurant itself for publication in defendant no.1's magazine. Since it was brought to the knowledge of defendant no.1 that the three photographs, as mentioned in para 9, were photographs by Sh. Hemant Mehta, the credit for all the said photographs was given to Sh. Hemant Mehta. In this circumstances, the question of seeking any permission from the plaintiff or the photographs did not arise or at all. It is denied and disputed that defendant no.1 has used some of the unpublished photographs which are the property of the plaintiff without plaintiff's permission or that the photographs published by defendant no.1 in the magazine are the property of the plaintiff. It is further denied that the plaintiff has already applied for the copyright of the book on 20.04.98. It is not denied that the copyright in a literary work exists with the publisher/author from the date of publication. It is stated that any booklet/magazine/book on restaurant would have similarly published identical compilation. A book on restaurant would have to contain details about the location, the menu, the specialty and the price without which any such book/magazine/booklet would be incomplete. The plaintiff can not claim any copyright with regard to the same merely because the plaintiff alleges that the plaintiff's book "The Connoisseur Handbook on Eating Out" was published prior to defendant no.1's magazine. It is denied that the book published by Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.7 of pages 48 the plaintiff has been circulated since January, 1998 and is available in all leading bookshops or that defendant no.1 was aware of the said publication. It is further denied and disputed that defendant No.3, aware of the said publication, knowingly used the material from the said book in the magazine titled "Gourmet Pere". It is also denied that defendant no.1 has violated the provisions of Copyright Act. It is further denied that plaintiff has any copyright over the material used by defendant No.1 for publishing the magazine titled "Gourmet Fare"
or that the alleged infringement of the copyright were committed by defendant no.1 during the validity of the alleged copyright or that the said copyright, referred to in para 13, is still valid, continuing and subsisting. It is denied that by reason of any wrongful and/or illegal act of alleged infringement by defendant no.1, the plaintiff had suffered and continue to suffer financial loss, injury and damage or that by reasons of the aforesaid the plaintiff is entitled to claim Rs.5,05,000/, which is alleged estimated loss and damage suffered by the plaintiff and a decree for accounts in respect of profits made by defendant no.1 by infringing the aforesaid alleged copyright. It is also denied that the defendant no.1, if not restrained by this court, will continue to infringe the alleged copyright by publishing material from the said book and by using the photographs. It is submitted that the Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.8 of pages 48 prayer for restraining the defendant no.1 does not arise at all and has become infructuous in as much as the defendant no.1 has already published the magazine "Gourmet Fare".
5. Defendant No. 2 has also filed his written statement in which he has claimed that the present suit is bad for misjoinder of parties. Further the present suit is not maintainable against defendant No.2 as no cause of action whatsoever has arisen in favour of the plaintiff for filing the present suit against the defendant No.2. It is further claimed that defendant No.2 was merely presenting the book/magazine in question in its capacity as advertisers and was in no manner concerned with the contents and/or editorial aspect of the said magazine and therefore, the violation of copyright of plaintiff's book even if proved cannot be attributable to the defendant No.2. Moreover, the plaintiff has itself admitted in the plaint that the defendant no.2 was merely a sponsor of the book in question. No other allegations have been made in the plaint against the defendant no.2 and as such the present suit is not maintainable against the defendant no.2 and the name of the defendant no.2 is liable to be deleted from the array of the defendants. The present suit, which is entirely based on the allegation that the magazine "Gourmet Fare"
published by the defendant No.1 is in violation of the plaintiff's Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.9 of pages 48 copyright in the handbook titled "The Connoisseur Hand Book on Eating Out", is not maintainable on the ground that plaintiff does not have any copyright in the said handbook as no copyright has either been declared or reserved with respect to the said handbook and hence, no cause of action has arisen in favour of the plaintiff for filing the present suit. It is submitted that the copyright subsists only in original work. The said hand book of the plaintiff titled "The Connoisseurs Hand Book on Eating Out" is a mere compilation of the prepared editorials of different restaurants which cannot be considered by any stretch of imagination as original works of the plaintiff, as claimed or otherwise. Hence, there is no question of the plaintiff having any copyright in the said hand book. As such, the question of alleged infringement of the plaintiff's copyright does not arise at all.
On merits, it is denied that Sh. Sanjeet is duly authorized and empowered by Board of Resolution of the plaintiff company passed on 13.05.1997 to sign, verify the pleading and to institute the present suit. It is claimed that every book on restaurant would contain a systematic complication of various restaurants with their respective photograph and brief writeup about the restaurants and the cuisine being served by them. It is submitted that the plaintiff cannot under Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.10 of pages 48 any circumstance claim a copyright over the said complication. It is denied that all the photographs published in the book titled "The Connoisseur Handbook on Eating Out" were photographs by Sh. Hemant Mehta or that Sh. Hemant Mehta was working on a contractual basis with the plaintiff since August, 1997 and after completing his assignment had handed over all the negatives to the plaintiff or that plaintiff have used some of the photographs in the said book or that generally restaurants do not allow photographs of empty restaurants to be taken and published because it is adverse publicity for them. It is denied that the layout of the magazine published by defendant No.1 is similar to the layout of he plaintiff's book or that as many as seven photographs published by the defendant No.1 in their magazine are exactly the same, which have already been published by the plaintiff in their book. It is stated that the defendant no.2 was not involved at any stage with writing, editing, compilation and publication of the magazine "Gourmet Fare". It is denied that the plaintiff has applied for the copyright of the book on 20.04.1998 or that the plaintiff as the copyright holder has the exclusive right and monopoly in respect of all the material published title as "The Connoisseur Handbook of Eating Out". It is submitted that the plaintiff has not either declared or reserved any copyright with respect to said Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.11 of pages 48 hand book. Moreover, the copyright has been applied by the plaintiff after the magazine "Gourmet Fare" was published by the defendant no.1. Further any book on restaurant shall have to contain details about the location, the menu, the specialty and price of the food, without which book, magazine/booklet would be incomplete. It is submitted that where the same idea is being developed in different manner, it is manifest that the source being common, similarities are bound to occur. As such, it is not an infringement of the copy right to adopt the ideas of another. It is denied that the book published by the plaintiff has been in circulation since January, 1998 and is available on all leading book shops or that the defendant no.2 was aware of the said publication, as alleged or at all. It is also denied that the defendant no.3 was at all material time aware of the said publication and knowingly used the material from the said book in the magazine title "Gourmet Fare". It is further denied that defendant no.2 has violated the provisions of Copyright Act, as alleged or otherwise or that the infringement of the copyright were committed by the defendant no.2 during the validity of the alleged copyright or that the alleged copyright referred to herein above is still valid, continuing and subsisting. It is denied that by reason of the alleged wrongful and illegal acts of infringement by the defendants, the plaintiff have Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.12 of pages 48 suffered and continue to suffer financial loss, injury and damage or that the plaintiff is entitled to Rs.5,05,000/ as estimated loss and damages suffered by the plaintiff. There is no basis for claiming the alleged damages.
6. Defendant No.3 has also filed his written statement wherein he has claimed that the present suit is not maintainable. No cause of action whatsoever arose in favour of the plaintiff for filing the present suit, the plaintiff does not have any copyright in the handbook titled as "Connoisseurs on Eating Out". No copyright has either been declared or reserved with respect to the said handbook. The said hand book of the plaintiff was a mere compilation of the prepaid editorials of different restaurants which can not be considered as original works as claimed or otherwise. As such, in the absence of any copyright, the question of alleged infringement thereof does not arise at all. The present suit is misconceived based upon false, frivolous and baseless allegations. Cause of action thereof is fabricated to make believe where none exists. It is submitted that there is no copyright in ideas. Copyright subsists only in the material form in which the ideas are expressed. It is not an infringement of copyright to adopt the ideas of another. There can be no copyright in an idea, subject matter, themes. Where some idea is being developed in different manner, it Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.13 of pages 48 is manifest that the source being common, similarities are bound to occur. Where the theme of the two works is same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. Since in the present case, the approach, contents, layout pattern and compilation of the said hand book "Connoisseurs on Eating Out" is absolutely distinct from the magazine "Gourmet Fare" no cause of action arises in favour of plaintiff. It submitted that where apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in two works are clearly incidental, no infringement of copyright comes into existence. The said handbook is commercial in nature being complication of prepaid editorials of different restaurants. Since the editorials were prepaid 3 to 4 TPs of the photographs of restaurants interiors as well as food were returned to the respective restaurants. Whereof copyright is product of labours skill and capital expended by an author on his work and is protected. However, the elements of raw material used in the work is not protected. To secure copyright for the product, it is necessary that labour skill and capital should be expended sufficiently to impart to the product some quality or character which the raw Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.14 of pages 48 material did not possesses and which differentiates the products from the raw material.
On merits, it is denied that Sh. Sanjeet is duly authorized and empowered by Board Resolution of the plaintiff company passed on 13.05.1997 to sign, verify the pleading and to institute the present suit. The alleged Board resolution is vague, incomplete and does not confirm, empowers or authorities Sh. Sanjeet to sign, verify the pleading and to institute the present suit. It is further denied that the plaintiff published a handbook titled "The Connoisseur Hand Book on Eating Out" in November, 1997. It is submitted that every book on restaurant shall necessarily contain a systematic compilation of different restaurant and the cuisine being served by them. Admittedly, the defendant no.3 was associated with the team which worked out the said prepaid hand book and being the market coordinator/ Assistant Editor contributed immensely. The said publication being commercial in nature contain prepared editorials of different restaurants. It is submitted that the defendant was associated as market coordinator/assistant editor collected the requisite material for the said handbook with his tireless efforts labour, skill. In cases of Commissioned Works, it is generally construed passing the copyright. It is denied that the layout of the magazine published by defendant Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.15 of pages 48 no.1 is similar to the layout of the plaintiff's book or that as many as seven photographs published by the defendant no.1 in their magazine are exactly the same which have already been published by the plaintiff in their book. It is submitted that photographs of an object can be taken by two persons from the same position and angle and similarities between the photographs may be solely due to coincidence. The same shall not amount to infringement at any level. It is denied that the defendant no.1 have used some of the unpublished photographs which are the property of the plaintiff without their permission. It is stated that plaintiff has not either declared or reserved any copyright with respect to said hand book. The copyright has been applied by the plaintiff after the magazine "Gourmet Fare" was published by the defendant no.1. It is denied that the plaintiff as the copyright holder has the exclusive right and monopoly in respect of all the material published including the photographs published in the book titled as "The Connoisseur Handbook of Eating Out". It is also denied that the book published by the plaintiff has been in circulation since January,1998 and is available on all leading book shops or that the defendant No.3 knowingly used the material from the said book in the said magazine or that the defendant had violated the provisions of Copyright Act. It is Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.16 of pages 48 stated that the defendant no.3 has written and complied the magazine Gourmet Fare with his own efforts, labour, skill and capital by obtaining information regarding various restaurants and eating joints by visiting the said restaurants personally and after due approval from the concerned restaurant and the material thereof for publication has been supplied by the said restaurant willingly and on their own. It is denied that the plaintiff is entitled to Rs.5,05,000/ as estimated loss and damage suffered. There is no basis of claiming the alleged damages.
7. The plaintiff did not prefer to file the replication to the Written Statements of the defendants.
8. From the pleadings of the parties following issues were framed on 11.03.2004:
(i).Whether the plaint has been signed, verified and filed by duly authorized person? OPP.
(ii).Whether the plaintiff has any copyright in the handbook titled "Connoisseurs on eating out"? OPP.
(iii).Whether the defendant No.1 to 3 have infringed the copyright of the plaintiff? OPP.
(iv).Whether no cause of action has arisen in favour of the plaintiff and against the defendant no.2? OPD2.
(v).Whether defendant No.1 & 3 have knowingly used the material from the book "Connoisseurs on eating out" in the magazine "Gourmet Fare"? OPP.
Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.17 of pages 48
(vi).Whether the plaintiff is entitled to decree for a sum of Rs.5,05,000/ for loss and damages? OPP.
(vii).Whether the plaintiff is entitled for perpetual injunction restraining the defendants from publishing any other material from the book "The Connoisseur Handbook on Eating Out"? OPP.
(viii).Whether the plaintiff is entitled to directing the defendants to render the true account in respect of the magazine sold by the defendants infringing the provisions of copyright ? OPP.
(ix).Relief
9. In order to prove its case plaintiff examined only one witness i.e. Ms. Poonam Makeja as PW1, who tendered her examinationin chief by way of affidavit, wherein while reiterating the contents of plaint she also brought on record the following documents:
(i). Board Resolution dt. 06.04.2004. : Ex.PW1/1.
(ii). Photocopy of the Board Resolution
dated13.05.1997. : Mark A.
(iii). The book titled "The Connoisseur
Hand Book on Eating Out". : Ex.PW1/3.
(iv). The magazine titled "Gourmet Fare".: Ex.PW1/4.
(v). Legal Notices dated 13.04.1998 sent
to the defendants. : Ex.PW1/5 to 7.
During cross examination by Ld. counsel for defendant no.1 she stated that she has been working with the plaintiff company as Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.18 of pages 48 Director for the last four years and in the year 1997 she was working with the plaintiff as Senior Manager (Advertising and Marketing). She also stated that Mr. Hemant Gupta has been given one assignment by the plaintiff and that was the magazine ExPW1/3 and all the photographs therein were taken by him. She also stated that Mr. Hemant Mehta must have taken about 300 photographs and most of them were published in Ex.PW1/3. There was a Written Agreement between Mr. Hemant Mehta and the plaintiff. An amount of Rs. One Lakh was paid to Mr. Hemant for the same. She could not tell whether Mr. Hemant Mehta raised a bill for the same, however, she stated that the said amount was not for any fixed number of photographs but was on account of the understanding that he would take several photographs of 100 restaurants. In response to the question as to what is the import meaning of the terms systematic complication, she replied that there is a certain format that they follow for every page for restaurant. There is stated as to how many covers the restaurant has, what kind of cuisine itself, whether they accept credit cards etc. She conceded that the brief write up in the Hindustan Times was not the same as in their magazine. She could not tell as to when she met Mr. Mehta for the first time. However, she stated that she knew Mr. Mehta since she has joined the company, who belongs to Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.19 of pages 48 the Mahata Group and they have been dealings with the Mahata for many years. She further conceded that Mr. Hemant Mehta, whom they dealt with has his own firm by the name of M/s India Pictures, which also works for them. Mr. Mehta has never been on their payrolls. She stated that the agreement between them and Mr. Hemant Mehta is that they were to pay him a sum of Rs. One Lakh and would click 300400 photographs of different restaurants in Delhi. She denied that Mr. Mehta was free to handover the copy of the photographs and negatives to anybody. Mr. Mehta was not entitled to give the photographs even to the restaurant owner. She stated that the permission to take the photographs of various restaurants was organized by them but she could not produce any documentary or other evidence in that regard. She also stated that it must have taken out 8 to 10 months for the book to be published on the day they have entered into the agreement with Mr. Mehta. The restaurant owners permits to take/empty photographs of their restaurant because of the format of the book and they had sent letters to the restaurants owners in the said regard. She stated that she does not have any proof to substantiate her assertions that Mr. Mehta handed over the negative to them, however, she clarified that as a matter of fact, the negatives were handed over to Mr. Atul Sethi, who is defendant no.3 as he was Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.20 of pages 48 the part of the company. She also stated that although, the company maintains records, but since, Mr. Sethi was looking after this contract, the negatives and other related matters to the publication of the goods were handed to him. She denied that the basic knowledge of the agreement is with Mr. Sethi. Mr. Sethi was coordinating the entire project with Mr. Hemant and with the restaurants. In view of the same, all related matter pertaining to the subject contract were undertaken by Mr. Sethi. She stated that in terms of Hierarchy she was senior to Mr. Sethi, who reported to her for the subject contract. She conceded that the negatives of the photographs were never handed over to her at all. She could not tell as to whether the ownership in the negatives vested in the company or not. She conceded that the photograph information of the restaurant which appears in the magazine were paid for by the restaurant owner respectively. She also conceded that they charge approx. a sum of Rs.7,500/ per page from each restaurant. She denied that the photographs and the TP's have been handed over by them to the restaurants owners. As a matter of fact, their agreement with the various restaurant owners specified that the photographs and negatives will be kept with them. On seeing the letter Mark A, she could not recollect as to whether the test of the same is the one which Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.21 of pages 48 was sent to various restaurants owners. She conceded that the restaurant would be participated in the book, had given their acceptance by way of a release order. She denied that there was no agreement with her and the restaurant owners or that there was no clause in the agreement pertaining to her retaining the photographs on record. She stated that she has not filed that agreement. She denied that Mr. Hemant Mehta took the photographs of the restaurants using his own contracts and efforts. Mr. Atul Sethi was coordinating between Mr. Hemant Mehta and restaurant owners. Photographs of empty restaurants were taken after taking permission from the owners, but no document in this regard is filed on record. She stated that the Times Food Guide is not of the same nature as of their magazine. She denied that at the time magazine was published by defendant no.1, they did not have the copyright about the photographs taken by Mr. Hemant Mehta that were published in the magazine by defendant no.1. Out of the total photographs submitted by Mr. Hemant Mehta, they published about 80 or 90 photographs in their book and the remaining photographs were in the custody of Mr. Atul Sethi and they also had the copyright over the photographs which were not published in their book. She further stated that they do not have the certificate about copyright of these photographs, Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.22 of pages 48 however, she clarified that they have the copyright certificate about the book in which those photographs were published. She sated that the agreement which was executed between them and the restaurant owner were in fact the release order. She denied that she has deliberately not brought the said release order since the same go against the plaintiff. She stated that the Mark A is not a release order. She conceded that Mark A was the invitation to the offer to the various restaurants owners and the same is not signed by the Director. She stated that according to her Mr. Sethi has taken all the documents alongwith him. They did not take any steps to get the said documents from Mr. Sethi. She conceded that she is conveniently remembering that a sum of Rs.7500/ had been charged and conveniently forgetting the TPs were to be given to the restaurant owner. She stated that they discovered for the first time that the release order was not available with them after she was directed by the Court vide order dated 30.07.2005 to produce the same. She conceded that the design in the publication of the Hindustan Times is different from the design in their book, however, she clarified that it has to be different since their publication is a book and Hindustan Times is a newspaper. She admitted that the layout in the publication of the Hindustan Times is different from the layout in their book. She Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.23 of pages 48 denied that as a matter of fact the release order/agreement between them and the restaurant owner duly records that 3 or 4 TPs of the restaurants were to be handed over by them to the restaurant owners. The plaintiff is assessed to income tax. She is not privy to any information regarding what kind of profits did the plaintiff generate from the publishing the book Connoisseurs Hand Book on eating out. She has absolutely no knowledge regarding how much were the profits generated from the said book and cannot give rough estimate in this regard. She stated that she simply has not idea as to how the figure of Rs.5,05,000/ has been mentioned in para 17 of her affidavit. She denied that no permission was required to be taken by the defendant from the plaintiff for publishing the photographs in question or that the restaurant owners were the owners of the photographs and they had unfettered discretion to get the said photographs published wherever they desired or that photographs were validly published and due credit for the same has been given to Sh. Hemant Mehta.
During cross examination by Ld. counsel for defendant no.2 she confirmed that many other brands have advertised their products in the magazine of defendant no.1, however, the same was sponsoured by defendant no.2. The defendant no.2 was sponsor for magazine of the defendant no.1. She could not tell as to whether the Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.24 of pages 48 defendant No.2 was concerned with the editorial aspect of the magazine of defendant No.1 i.e between defendant No.1 and defendant No.2. Their book is the first time publication of its kind and is not any compilation of editorials of different restaurants. They had already applied for the copyright in their book before the publication of the magazine of defendant no.1, however, the copyright was receievd by then subsequent to the publication of the magazine of the defendant no.1. From seeing the record, she stated that it is November, 1997 when the plaintiff's book was published and it was available at Central News Agency and India Book House, New Delhi, who were the distributors. She confirmed that defendant no.2 has not sponsored the plaintiff's book. She could not tell what the approximate sale of the plaintiff's book was since November, 1997. She conceded that the defendant no.2 has not published the book "Gourmet Fare", however, the defendant no.2 has sponsored the magazine. She could not tell if the defendant no.2 has sold the magazine or let the same on hire i.e. between defendant no.1 and defendant no.2. She also could not tell if the defendant no.2 has distributed this magazine for the purposes of trade. There was no advertisement whatsoever to the effect that the plaintiff's book was launched in the market, however, she clarified that it was being sold Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.25 of pages 48 at all the cross roads, hence creating the visibility. She could not tell the quantum of damages occasioned to the plaintiff on account of violation of copyright of the plaintiff in the book, however, the plaintiff has sued for about Rs.5 Lakhs. The defendants were aware of the publication of the plaintiff because it was available all over Delhi.
During cross examination by Ld. counsel for defendant no.3 she denied that Mr. Sanjeet signed the plaint in her presence or that she has not been authorized to represent the plaintiff in the present matter or that she does not have any personal knowledge about the present matter. She also denied that Mr. Atul Sethi never had any TPs, negatives/positives of the photographs or that TPs, negatives/ positives of the photographs were either with Mr. Hemand Mehta or the restaurants or that the restaurants were having authority over the TPs, negatives/positives of the photographs having paid for the same or that plaintiff do not have any legal claim against defendant no.3. She conceded that TPs, negatives/ positives of the photographs were handed over by Mr. Hemant Mehta to the plaintiff. She denied that Mr. Hemant Mehta either have handed over the same to the restaurants directly or that the agreements in the form of letters between the restaurants and the plaintiff were not with defendant no.3 or that copy of marked A is with the plaintiff and the plaintiff is Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.26 of pages 48 deliberately not producing the same in the court. She also denied that the agreements in the form of letters with the restaurants were with the plaintiff and the plaintiff has been deliberately not producing the same in the Court or that defendant no.3 has not influenced any alleged copyright in favour of the plaintiff or that plaintiff is not entitled to claim any damages against defendant no.3.
10. In their defence, the defendants defendant no.1 & 2 examined one witness each i.e. D1W1 Sh. V.K. Charoia and DW2 Sh. U. Narendra Kini respectively, whereas despite of giving opportunity no evidence has been led on behalf of defendant no.3 and as such vide order dated 26.10.2009, evidence of defendant no.3 was closed and the matter was listed for final arguments.
11. D1W1 Sh. V. K. Charoia (Director and Company Secretary of the defendant no.1 company) in his examinationinchief tendered by way of affidavit Ex.D1W1/A has stated that by virtue of Power of Attorney executed by defendant no.1 in his favour, Notarized copy of which is Ex.D1W1/1, he has been authorized to give evidence on behalf of defendant no.1. He also stated that the defendant no.1 in publishing its magazine "Gourmet Fare", original of which is Ex.D1W1/2, has not violated any alleged copyright of the plaintiff in the book entitled "The Connoisseur's Handbook on Eating Out". The Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.27 of pages 48 plaintiff does not have any proprietary rights in the individual photographs of the various restaurants published in The Connoisseur's Handbook on Eating Out. These photographs were the exclusive property of the individual restaurant owners having full and unfettered rights in them and the only person, who can claim proprietary right over the photographs of the respective restaurants are the respective restaurant owners and these photographs having been given to the defendant no.1 for publication by the respective restaurants themselves, no right of any person has been infringed by the defendant no.1. The defendant no.1's compilation in the magazine "Gourmet Fare" is materially different from the plaintiff's compilation in the book entitled "The Connoisseur's Handbook on Eating Out". A perusal of the same clearly shows that the get up and layout of the two magazines is totally different. The write up too is totally different. Further, there are as many as 67 restaurants which are not common in the two compilations, details of which are given in para 5 of the affidavit in evidence. Further there was no occasion for the defendant no.1 to take any permission from the plaintiff for the publication of the photographs. Due credit was given to the photograph inasmuch as the name of the photographer was written alongwith the photograph. The defendant no.1 did not use the material from the book entitled Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.28 of pages 48 "The Connoisseur's Handbook on Eating Out". Also, as it clear from the Written Statement of defendant no.3, the magazine Gourmet Fare was written and compiled by defendant no.3 with his own efforts, labour, skill and capital by obtaining information regarding various restaurants and eating joints by visiting the said restaurants personally and after due approval from the concerned restaurants and that the material thereof for publication has been supplied by the said restaurants willingly and on their own.
During cross examination by Ld. counsel for defendant no.2 he confirmed that defendant no.2 was only the sponsored to the Magazine of defendant no.1 and was not concerned with the editorial aspects of the magazine.
During cross examination by Ld. counsel for plaintiff, he admitted that Gourmet Fare is a publication of the defendant No. 1. The same is published by the editorial department in consultation with the marketing department. He could not tell as to how the idea of publishing the same came. He admitted that he was not a part of the marketing or publishing department. Survey was conducted by the defendant no.1 before publishing the same but no document has been produced on record in this regard. He also stated that the marketing department had contacted the various restaurants whose Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.29 of pages 48 photographs have been published in the Gourmet Fare. He could not tell as to how may persons were in the team for publishing Gourmet Fare. He denied that the material for publication has been supplied by the restaurant owners willingly and of their own. He conceded that he has not produced any record in the said connection. He could not tell as to whether Mr. Atul Sethi was on contract basis with defendant No.1. Conditions regarding hiring persons change from time to time and he cannot give the conditions on which he was given the said assignment or what was the remuneration paid to him.
DW2 Sh. U.Narendra Kini in his examinationinchief tendered by way of affidavit Ex.DW2/A has stated that he has been authorized vide a Board Resolution Ex.D2/1 in his favour to depose on behalf of the defendant no.2. He also stated that in pursuant to an offer from Hindustan Times dated 19.03.1997, copy of which is Mark D2/A, the defendant no.2 agreed to sponsor the magazine of the defendant no.1 viz. HT Gourmet Fare to be circulated alongwith its newspaper, which the defendant no.1 represented was a comprehensive guide to eating out which will be superior in terms of editorial, design and production qualities. He also stated that defendant no.2 acted in its capacity as advertisers and was in no manner concerned with the contents and/or editorial aspect of the magazine of the defendant Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.30 of pages 48 no.1 viz. Gourmet Fare.
This witness is also cross examined by Ld. counsel for the plaintiff. In his cross examination the witness deposed that they got the offer for sponsor magazine in question by defendant No. 1 during March, 1998. He is working for the defendant No. 2 since September, 2003. The defendant no.2 had no knowledge of or was aware of the violation of any copyright by the defendant no.1, as alleged by the plaintiff with respect to the publication of the magazine "Gourmet Fare" or alleged use of any infringing material therein by the defendant no.1 as the defendant no.2 was not involved at any stage with writing, editing, compiling and/or publishing the magazine "Gourmet Fare" of the defendant no.1. The defendant no.2 had no reasonable ground for believing that the publication of the magazine of the defendant no.1 would constitute any alleged infringement of copyright as averred by the plaintiff. He also stated that pursuant to the Legal Notice dated 13.04.1998 received from the plaintiff, it was clarified by the defendant no.2 by its letters dated 19.05.1998 and 08.06.1998, copies of which are marked D2/B and D2/C, that the defendant no.2 was not concerned with the editorial aspect of the magazine of the defendant no.1 and the alleged violation of copyright could not be attributed to the defendant no.2. It was further clarified Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.31 of pages 48 that pursuant to receipt of legal notice, the defendant no.2 had contracted the defendant no.1, who had assured the defendant no.2 that the publication of the defendant no.1 is in no manner a copy of the publication of the plaintiff "The Connoisseur Handbook on Eating Out".
During cross examination by Ld. counsel for plaintiff he stated that they got the offer to sponsor the magazine in question by defendant no.1 during March, 1998. At the time of accepting the sponsorship they are not aware of any infringement and they are not required to know also because they have no control over the editorial and the publication.
During cross examination by Ld. counsel for defendant no.1 he stated that his personal knowledge of the case is limited to the extent of the papers i.e. which are available in the file which were given to him by his lawyer, pertaining to this matter. He also stated that apart from copies of pleadings, affidavits and copy of resolution passed, he has not seen or perused any other documents in relation with this case. He further stated that he has seen the averment in his para from point A to A1 and he has stated so on the basis of the material available with his office and the record available with his advocate. He conceded that he has not personal knowledge as to the facts of Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.32 of pages 48 the case and his deposition is on the basis of information derived from the aforesaid records.
12. I have carefully heard the rival submissions of Ld. counsels for the parties. I have also perused the entire material placed before me.
13. My issue wise findings is as under:
14. First of all, for the sake of convenience, I shall take issue no.4 prior to other issues.
15. ISSUE No.4: Whether no cause of action has arisen in favour of the plaintiff and against the defendant no.2? OPD2.
The onus to prove this issue has been placed upon the defendant no.2.
As per the case of the defendant no cause of action could have even remotely arisen in favour of the plaintiff to file the present suit against the defendant, more so, it was not the owner of the photographs.
Per contra, according to Ld. counsel for plaintiff the infringing work of defendant no.1 is a colorable imitation of plaintiff's work and is not created by defendant no.1 but is obtained and copied from a common source i.e. defendant no.3, who used to be in the employment of plaintiff, at the time of creation of plaintiff's work. Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.33 of pages 48 Defendant no.3 stole necessary record/documents including pictures and slides from the office of plaintiff. Later on, defendant no.1 entered into an unknown arrangement with the defendant no.3 and caused the publication of the infringing work "Gourmet Fare". Apparently, defendant no.1 used services of defendant no.3 for publishing the infringing work. Both defendant no.1 and defendant no.3 together with defendant no.2 connived and published the infringing work to cause damage to the plaintiff. Thus the plaintiffs have perfect cause of action for filing the suit against the defendants. The cause of action has also arisen against defendant no.2 because defendant no.2 has gained against the loss of the plaintiff and has sponsored the infringing work created by other defendants. Further defendants have knowingly used the material from the book "Connoisseur's Handbook on Eating Out" in the magazine 'Gourmet Fare'.
The expression "cause of action" means essential facts constituting the right and its infringement which entitles a person to sue the wrong doer or defaulter or any one liable for it. To establish that the plaint does not disclose the cause of action, the onus always lies upon the defendant and in the present case, the defendant no.2 has claimed that the suit of the plaintiff is liable to be dismissed as the same has been filed without any cause of action and hence the same Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.34 of pages 48 is liable to be dismissed U/o VII R 11 CPC. The plaintiff has strongly denied this plea.
To enable a Court to reject a plaint on the ground that it does not disclose cause of action, it should look at the plaint and nothing else. Besides the plaint, the documents upon which the plaintiff has relied his claim can also be looked into. A careful scrutiny of plaint discloses that the plaint has fully disclosed the cause of action in favour of plaintiff and against the defendants and the relief claimed is not under valued. The plaintiff has fully complied with the provisions of Rule 7 of Order VII and the summons were duly served upon the defendant as per rule 9 of Order V. Thus, the plaint has fully disclosed the cause of action in favour of plaintiff and against the defendants and therefore, the issue stands decided in favour of plaintiff and against the defendant.
16. ISSUE No.1: Whether the plaint has been signed, verified and filed by duly authorized person? OPP.
The onus to prove this issue has been placed upon the plaintiff. As per plaintiff, the plaint is signed, verified and filed by the duly authorized person i.e. one of the Directors of plaintiff company, who is duly authorized and empowered by a Board Resolution of the Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.35 of pages 48 plaintiff company passed on 13.05.1997 to sign, verify the pleadings and to institute the present suit. The said Board Resolution dated 13.05.1997 has been placed on record as Mark A and as such it can not be said that the suit has not been signed, verified and filed by the duly authorized person. In its support the plaintiff has placed reliance upon the judgments reported as (1996) 6 SCC 660 titled as United Bank of India Vs. Naresh Kumar & Ors., 81 (1999) DLT 483 (D.B) titled as Ganga Saran & Sons Pvt. Ltd. Vs. Sachdeva Offset & Packing Industries Pvt. Ltd. and 83 (2000) DLT 239 titled as Gupta Estates (P) Ltd. Vs. Sh. Ramesh Kumar & Ors.
Per contra, according to Ld. counsels for defendants, the plaintiff has been failed to prove that the plaint has been signed, verified and filed by a duly authorized person. In this case the plaintiff has marked the Board Resolution as Ex.PW1/1 but an objection was taken with regard to exhibition of said document and the Court kept the fact, as to whether document Ex.PW1/1 was duly proved or not, open for being decided at the final stage. Neither Mr. Sanjeet nor Mr. Vikramjit, who allegedly signed the said Ex.PW1/1 stepped into the witness box. Further, the minutes book were also not produced despite the plaintiff having ample opportunities to produce the same. Even the incorporation of the plaintiff as a company under the Indian Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.36 of pages 48 Companies Act was neither proved nor was the certificate of incorporation filed on record. In their submissions, the defendants have placed reliance upon the following judgments:
(i).Lucas Indian Serviecs Vs. Sanjay Kumar Aggarwal 173 (2010) DLT 438.
(ii).Nibro Ltd. Vs. National Insurance Co. Ltd. AIR 1991 Delhi 25.
(iii).Anant Raj Agencies Pvt. Ltd. Vs. National Insurance Co. Ltd. reported in Manu/DE/1318/2009. The law pertaining to verification and the institution of the suit by the companies is relevant to mention here.
Order VI Rule 14 of the Code of Civil Procedure provides that "Order VI. Order VI-PLEADINGS GENERALLY (THE FIRST SCHEDULE) Rule 14-Pleading to be signed Every pleading shall be signed by the party and his pleader (if any):
Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.
Order XXIX - SUITS BY OR AGAINST CORPORATIONS (THE FIRST SCHEDULE) Rule 1 - Subscription and verification of pleading - In suits by or against a corporation, any pleading may be signed and verified on Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.37 of pages 48 behalf of the corporation by the security or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
Order 6 R 14 mandates that every pleading shall be signed by the party and its pleader. So far the signing of a plaint on behalf of a company is concerned, a company being a corporate body or a juristic person has to act through somebody and that person has to be specifically authorized either under its Article of Association or through a Board Resolution to sign, file and verify the suit. So far Order 29 Rule 1 of CPC is concerned, it authorizes the Secretary, Director or other Principal Officer of the Corporation to sign and verify the pleading on behalf of the corporation.
In the case in hand where neither Mr. Sanjeet nor Mr. Vikramjit, who allegedly signed the said Ex.PW1/1 stepped into the witness box nor the minutes book were also produced despite the plaintiff having ample opportunities to produce the same nor the signatures of Mr. Sanjeet appearing on the plaint have been proved, so it can not be said that the plaint of the suit has been signed, verified and filed by the duly authorized person. Even the incorporation of the plaintiff as a company under the Indian Companies Act was neither proved nor was the certificate of incorporation filed on record. As such the issue Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.38 of pages 48 is liable to be decided against the plaintiff and in favour of the defendants and same stands decided accordingly.
17. ISSUE No.2: Whether the plaintiff has any copyright in the handbook titled "Connoisseurs on eating out"? OPP.
The onus to prove this issue has been placed upon the plaintiff. As per the case of plaintiff, plaintiff has the copyright in the handbook titled as "Connoisseur's Handbook on Eating Out". Plaintiff first published the said work in November, 1997. Prior to its publication, plaintiff carried out market research, used expression of thought and skillful labour. Plaintiff gathered knowledge and used its judgment in utilizing the raw material/information collected from hundreds of restaurants in the Delhi and gave shape to the said work. Plaintiff created sectionwise writeups, pictures and gathered information from different restaurants. The style used by plaintiff in the said work is unique to the time. The said work was also granted copyright by the Registrar of Copyright, Government of India on 22.09.1998 on plaintiff's application dated 20.04.1998. Extracts from the Register of Copyrights in favour of plaintiff's work is Ex.PW1/7. Plaintiff has the copyright in the subject work, since the day when it published the same for the first time during November, 1997. In its Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.39 of pages 48 support, the plaintiff has placed reliance upon the judgment reported as AIR 2009 Delhi 44, wherein it has been held that Registration of the work is not compulsory nor is a condition precedent for maintaining a suit for damages for infringement of Copyright.
Per contra, according to Ld. Counsels for defendants under the scheme of the Copyright Act, 1957 the author of a work is deemed to be the first owner of that work apart from the exceptions as embodied in Section 17 of the Copyright Act. Accordingly, under the scheme of Copyright Act, it is Mr. Mehta, who is the first owner of the copyright in the photographs. The plaintiff has chosen to take cover of the exceptions as provided in Section 17 of the Copyright Act to prove that they are the first owners of the copyright in the photographs. However, in this case, plaintiff has been failed to fulfill the necessary requirement to bring its case under the exception of Sec.17 of Copyright Act. Further the plaintiff has withheld the best evidence and therefore adverse inference is to be drawn against the plaintiff.
Having heard the respective rival submissions of Ld. counsels for the parties, I find a force in the submissions of Ld. counsels for the defendants that under the scheme of Copyright Act, 1957 the author of a work is deemed to be the first owner apart from the exceptions embodied in Sec.17 of the Copyright Act. The exceptions as Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.40 of pages 48 embodied in Section 17 in a nutshell provides that any work made by an author in the course of his employment for valuable consideration at the instance of any person, the copyright shall vest in the person at whose instance and expense the work is created. In the instant case the plaint makes it ample clear that the photographs were not taken by the plaintiffs themselves but were then by Mr. Mehta, who is a free lancing photographer and has his own firm by the name of M/s India Pictures. Accordingly, under the scheme of Copyright Act, it is Mr. Mehta, who is the first owner of the copyright in the photographs. The plaintiff has chosen to take cover of the exceptions as provided in Section 17 of the Copyright Act to prove that they are the first owners of the copyright in the photographs. The requisites as prescribed by Section 17 to be the first owner in a work are as follows:
(i).That a person in course of his employment under a contract of service has given birth to the work.
(ii).That valuable consideration has been paid to him.
(iii).That the work has been done at his instance.
In the instance case, it was never the plaintiff's case that Mr. Mehta was under employment of the plaintiff company and the same was fortified in the cross examination of the plaintiff's witness wherein she clearly admits that Mr. Mehta was never on the plaintiff's payrolls. Although the plaintiff asserts that there was an agreement between Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.41 of pages 48 plaintiff and Mr. Mehta to click the photographs in question, no such agreement has ever been produced in Court and the same is not available on record. The stand taken by the plaintiff to show that the photographs were taken at their instance was their assertion that the permission to take photographs of empty restaurants was organized and arranged by the plaintiff and in this regard numerous letters were sent out to restaurant owners. However, the plaintiff did not prove any document on record regarding its alleged relationship with the said Mr. Hemant Mehta. Further the plaintiff in his cross examination has deposed that "I do not know as to whether the ownership in the negatives vested in the company or not".
As per plaintiff's cross examination they have asserted that a sum of Rs. One Lakh was paid to Mr. Mehta as consideration for clicking the pictures. No proof of this payment has been placed on record. For a person to fall within the exception of Section 17, valuable consideration has to be tendered in order for the work to be completed and not for the completed work in the absence of a contract. Further as per the case of the plaintiff as set out in the plaint and further fortified in the cross examination that valuable consideration in the instant case has been paid by the restaurant owners and accordingly, the ownership rights in the photographs only Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.42 of pages 48 vest with the restaurant owners. In this regard, the defendant no.1 has placed reliance upon a judgment reported as AIR 2002 Cal 33 titled as Gee Pee Films Pvt. Ltd. Vs. Prateek Chaudhary & Ors.
The stand taken by the plaintiff is in contradiction with the deposition of PW1 wherein it has been deposed that "it is correct that the design in the publication of the HT is different from the design in our book. Further all that the plaintiff has published is the seating capacity, the cuisine offered and the mode of payments accepted by the various restaurants. However, all this information is available to the public at large and there is no creativity involved in it and as such it cannot get the benefit of the Copyright Act. Moreover, it is the plaintiff's own case that out of the 100 photographs of the restaurants published by the plaintiff, the defendant no.1 has allegedly 'copied' seven. This is a small fraction of the photographs and cannot be termed as copyright infringement. Moreover, it is also asserted by the plaintiff that the defendant has also published unpublished pictures in their work, which is impossible in case the copyright of the same vested in the plaintiff. The plaintiff does not have a copyright with respect to the photographs is conclusively established by the cross examination of the plaintiff wherein she herself has stated that she did not know as to whether the ownership in the negatives vested in the Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.43 of pages 48 company or not. It is also to be noted that the said witness admitted that they had charged approximately Rs.7,500/ per page from the restaurant owners. Further, despite being given various opportunities regarding release orders/letters written to the restaurant owners, the plaintiff did not produce the said letters or release orders.
Further in para 9 of the plaint the plaintiff has stated that "the defendant no.1 acknowledges in their magazine that 2 photographs published by them were photographed by Mr. Hemant Mehta. But the same were published without the permission of the plaintiff or the photographer". This indicates that the plaintiffs were not the owner of the photographs.
A well established principle of law of evidence provides that a party who is in possession of but withholds the best evidence available to that party is liable to be viewed adversely and an adverse inference is to be drawn vizaviz such party. The principle in incorporated under Section 114 of the Indian Evidence Act, 1872 and exemplified by illustration (g) of the relevant section.
In the present case, even after being repeated directed by the Court, PW1 has not brought even a single agreement which the plaintiff had with the restaurant owners, let alone the various agreements which it had with different restaurants. In such Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.44 of pages 48 circumstances, adverse inference needs to be drawn against the plaintiff. Moreover, the plaintiff had not brought on record any document embodying the contract between the plaintiff and Mr. Mehta suggesting that the copyright in the photographs would vest in the plaintiff. It is also to be mention here that PW1 had admitted that such an agreement exists but even after such an admission has never made an attempt to bring the same on record. The proposition with regard to withholding of best evidence by the party in possession of the same has been enunciated and dealt with by both the Hon'ble High Court of Delhi and Hon'ble Supreme Court. Any party who withholds the best evidence, an adverse inference has to be drawn against that party.
In Union of India Vs. Mohan Behari Jasod Kumari (114) 2004 DLT 516 it was held that: "It is a settled principle of law that irrespective of the burden of proof, the party in possession of the best evidence is bound to produce the same. In this behalf regard be made to the judgment of the Supreme Court of India reported as AIR 1968 SC 1413. The forwarding note was in the power and possession of the defendant no.1. It is not disputed that the same was material contemporaneous documentary evidence Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.45 of pages 48 which was not produced. Adverse inference is, therefore, to be drawn against the defendant no.1 for failure to produce the documents."
Further the Hon'ble Supreme Court in Gopal Krishnaji Ketkar V. Mahomed Haji Latif and Ors. (1968) 3 SCR 862 (at page 866) has observed that: "Even if the burden of proof does not lie on a party the Court may drawn an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to reply upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and reply upon the issues in controversy and to rely upon the abstract doctrine of onus to proof."
In the light of aforesaid, issue is liable to be decided against the plaintiff and same stands decided accordingly.
18. ISSUE No.3: Whether the defendant No.1 to 3 have infringed the copyright of the plaintiff? OPP.
ISSUE No.5: Whether defendant No.1 & 3 have knowingly used the material from the book "Connoisseurs on eating out" in the magazine "Gourmet Fare"? OPP.
Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.46 of pages 48 ISSUE No.6: Whether the plaintiff is entitled to decree for a sum of Rs.5,05,000/ for loss and damages? OPP.
ISSUE No.7: Whether the plaintiff is entitled for perpetual injunction restraining the defendants from publishing any other material from the book "The Connoisseur Handbook on Eating Out"? OPP.
ISSUE No.8: Whether the plaintiff is entitled to directing the defendants to render the true account in respect of the magazine sold by the defendants infringing the provisions of copyright ? OPP.
In view of my findings on issues no.1 & 2, issues no.3, 5, 6, 7 & 8 are liable to be decided against the plaintiff and same stand decided accordingly.
19. RELIEF: In the light of aforesaid, suit of the plaintiff is dismissed. No order as to cost.
20. Decree Sheet be prepared.
21. File be consigned to Record Room after completion of necessary formalities.
(Announced in the Court (RAKESH KUMAR)
today on 31.10.2011) ADDL. DISTRICT JUDGE03 (C)
DELHI
Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.47 of pages 48
Suit No.81/08
Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors.
31.10.2011 Present: As before.
Vide a separate judgment, suit of the plaintiff is dismissed. Decree Sheet be prepared.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ03(C)/DELHI/31.10.2011 Durga Dass Pub. (P) Ltd. Vs. Hindustan Times Ltd. & Ors. (Suit No.81/08) Page No.48 of pages 48