Delhi District Court
Mr. Ravi Visvesvaraya Prasad vs Mr. Rajneesh Kapur on 24 May, 2013
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL)01
TIS HAZARI COURTS, DELHI.
T.M. No. 82/2011
Unique case ID no. 02401C5032192004
Mr. Ravi Visvesvaraya Prasad
S/o Mr. H. Y. Sharada Prasad
R/o 19, Maitri Apartments,
CIS Officers Society
A3, Paschim Vihar,
New Delhi110063. ...Plaintiff
Versus
1. Mr. Rajneesh Kapur
S/o Mr. Kishori Lal Kapur
Executive Project Monitoring
Centre for Development of Telematics (CDOT)
Telecom Technology Centre of Government of India
Akbar Bhawan, 9th Floor, Chankaya Puri, New Delhi.
Also at
Mr. Rajneesh Kapur S/o Mr. Kishori Lal Kapur
R/o B1/473, Janakpuri, New Delhi110058.
2. Mr. Maneck Davar
Editor, Publisher and Printer
T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 1 of 19
2
Business Computer, Magazine,
Sterling Newspaper Ltd.
Express Building Ground Floor,
9&10 Bahadurshah Zafar Mark, New Delhi110002.
Also at:
Mr. Maneck Davar
R/o No.5, Petit Block, Balaram Street, Grant Road,
Bombay 400007.
3. Business Computer Magazine
Sterling Newspaper Ltd.
Express Building, Ground Floor,
9&10, Bahadurshah Zafar Marg, New Delhi110002.
4. Mr. Pradyuman Maheshwari
Ex. Managing Editor
(was Managing Editor at the relevant time) "Business
Computer" Magazine,
Sterling Newspapers Ltd.
Express Building Ground Floor,
9&10, Bahadurshah Zafar Marg,
New Delhi110002.
Current Address
Mr Pradyuman Maheshwari
Features Editor, Mid day publications Ltd.
156 D, J. Dadajee Road, Tardeo, Bombay400034.
5. Centre for Development of Telematics (CDOT)
T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 2 of 19
3
Telecom Technology Centre of Government of India
Akbar Bhawan,
9th Floor, Chankaya Puri,
New Delhi110021.
6. Mr. Bishnu D. Pradhan
Executive Director
Centre for Development of Telematics (CDOT)
Telecom Technology Centre of GOI
Akbar Bhawan, 9th Floor,
Chankaya Puri, New Delhi110021.
7. Mr. Sunil Abrol
RegistrarPersonnel & Administration
Centre for Development of Telematics (CDOT)
Telecom Technology centre of Government of India,
Akbar Bhawan, 9th floor, Chankaya Puri,
New Delhi110 021
...Defendants
Date of institution of the suit : 04.01.2002
Arguments concluded on : 03.05.2013
Date of pronouncement of judgment : 24.05.2013
JUDGMENT: This is a suit in which the plaintiff has alleged plagiarism and has sought damages and rendition of accounts.
2. Briefly stated, the case of plaintiff is that he is a highly qualified T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 3 of 19 4 person having various coveted degrees from Indian and Foreign Universities. He has been a Consultant to various reputed government and private organizations. He is an expert in the field. He has been involved in editing various papers for publication and has also authored various articles etc. and has received accolades and high acclaim from various quarters.
3. The cause of action of the plaintiff has its genesis in the factum of his having written and published an original article entitled "Software Does Not Communicate in time". It was published on the OpEd page in the 08.06.1992 edition of the publication Observer of Business and Politics, in both the Bombay and Delhi editions of 08.06.1992. In writing this original article, the plaintiff drew upon his extensive and deep knowledge and experience of the computer software, telecommunications and datacommunications industries in India and abroad, gained through years of hard work and devotion to these subjects.
4. The cause of action crystallized when the defendant no. 1 in November, 1992 issue of the magazine Business computer on pages 54 and 5, wrote and published an article titled "Boosting Software T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 4 of 19 5 Exports" and at the end he declared himself to be the author of this article and affixed his name, designation, employer's name and photograph to this article. The plaintiff felt aggrieved as the substance matter, ideas, contents, essence, theme, language, wording, phraseology, expression, idiom, sequence of words, phrases and sentences, though sequences, and literary style of the subsequently published article "Boosting Software Exports" Written by defendant no. 1 and defendant and published by defendant no. 3 are similar and identical to those of the plaintiff's original and previously published article "Software Does not communicate in time".
5. The plaintiff has claimed damages and rendition of account alleging violation of his copyright, dilution of goodwill, defendants making profit at the expense of the goodwill of the plaintiff.
6. The defendants have raised an objection of limitation stating that a suit for damages for defamation does not lie beyond a period of one year from the date of accrual of the cause of action.
7. On this aspect a preliminary issue has been framed as under
vide minutes of proceedings dated 23.08.2007: Whether the suit is within the period of limitation, if not its effect? OPP T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 5 of 19 6
8. I have heard the Ld. Counsel for the parties on this aspect.
9. Ld. Counsel for the defendants have argued that the plaintiff had earlier filed a suit no. 641/1995 on 31.07.1995 before the District Court in the sum of Rs. 5,00,200/ which was beyond its pecuniary jurisdiction. In the said suit the plaint was directed to be returned on 15.12.2001 for presentation in the Court of competent jurisdiction. The same was presented on 04.01.2002 without moving an application under section 14 of the Limitation Act. Thus the cause of action which had accrued in November 1992 has become barred by limitation. There is lack of 'good faith'which means due care and attention in instituting and prosecuting the earlier suit and as such the benefit of section 14 of the Limitation Act is not available to the plaintiff even if it is held that filing of an application under section 14 of the Act is not mandatory. As such the suit filed in Hon'ble High Court of Delhi (now transferred to this Court on enhancement of pecuniary jurisdiction) is deemed to be a fresh suit and thus barred by limitation.
10. It is also submitted that the jurisdiction for a suit for defamation if one year and the suit is barred by limitation.
11. The defendants relied upon Hanumanthappa and another Vs. T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 6 of 19 7 Chandrashekharappa and Ors. AIR 1997 SC 1307 to cite that an order of returning of plaint can be challenged in an appellate forum or represent to the Court having territorial jurisdiction.
12. On behalf of the defendants the case of Union of India Vs. Mahavir Industries & Anr. 152(2008) DLT339(DB) has been relied upon by the defendants to cite that for want of pleadings under section 14 of the Limitation Act the benefit cannot be extended. The case of Jagannath Prasad Vs. Sant Hardasram Sevashram AIR 1978 Allahabad 250 has been relied upon to cite that patent and gross negligence deprive the benefit of section 14 of the Limitation Act. Also relied upon is the case of Messrs MacNHom Systems Vs. Vaidya Ratnam P.S. Varrier'Saryavaidyasala AIR 2004 KER 91 that in case of lack of due diligence and good faith are absent the benefit of section 14 is not available to a party.
13. The case of Firm Hemraj Dhannalal Vs. Ambaam Bhawaniram Surajmal AIR 1961 Madhya Pradesh 336 has been relied upon to cite that when the pecuniary jurisdiction of the different courts is clearly defined then the mistake in filing suit in a wrong court cannot be a ground for exclusion of time. Madhavroa T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 7 of 19 8 Narayanrao Patwardhan Vs. Ramkrishna Govind Bhanu and Others AIR 1958 SC 767 has been relied upon to cite that the relevant criteria in the application of section 14 is whether given due care and attention the plaintiff could have discovered the omission.
14. Per contra, on behalf of the plaintiff it is submitted that section 62 of the Copyright Act vests the jurisdiction in a District Court irrespective of the valuation of the suit. Read with section 15 of the Code of Civil Procedure which states that every suit shall be instituted in the Court of lowest grade competent to try it. Therefore the suit was validly instituted at the relevant time before the District Court. It was only due to the oblivion of the provision of section 62 of the Copyright Act that the Ld. Additional District Judge had returned the plaint for presentation before the Court of competent jurisdiction and in terms of the said order dated 15.12.2001 that the plaintiff presented the plaint before the Hon'ble High Court of Delhi.
15. It is further submitted by the Ld. Counsel for the plaintiff that the order dated 15.12.2001 passed by the Ld. Additional District Judge in Suit no. 641/1995 is against the statutory law and judicial precedents and thus the bar of limitation is not attracted. T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 8 of 19 9
16. Ld. Counsel for the plaintiff has relied upon Wockhardt Veterinary Ltd. Vs. M/s Raj Medicos & Anr. 1998 RLR 353 in which case Hon'ble High Court of Delhi returned a plaint valuing Rs. 5,50,000/ considering the jurisdiction in terms of section 62 of the Copyrights Act read with the provision of section 15 of the Code of Civil Procedure. Similarly in the case of Frank Educational Aids Pvt. Ltd. Vs. Fair Deal Marketing, 1997 (42) DRJ 231 a plaint valuing Rs. 5,00,600/ has been returned for presentation to the District Court by the Hon'ble High Court of Delhi.
17. Ld. Counsel for the plaintiff has also argued that there are no fetters on a District Court to award damages above Rs. 5 lakhs as it has the original jurisdiction by virtue of section 62 of the Copyrights Act. On this aspect the following cases have been relied upon:
1. Time Incorporated Vs. Lokesh Srivastava and Anr. 116 (2005) DLT 599
2. The Himalaya Drug Company Vs. Sumit, 126 (2006) DLT 23.
3. Microsoft Corporation Vs. Deepak Raval, MIPR 2007 (1) 72.
4. Indian Performing Right Society Ltd. Vs. Debashis Patnaik and Ors, 2007 (34) PTC T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 9 of 19 10 201 Del
5. Microsoft Corporation Vs. Ms. K. Mayuri and Ors., 2007 (35) PTC 415 Del.
6. Microsoft Corporation and Anr. Vs. Mr. Shameer Ahmed J. and Anr., CS(OS) 300/2008, DOD 10.12.2008 by the Hon'ble High Court of Delhi.
7. Microsoft Corporation Vs. Mr. I. Sadiq Batcha & Ors. CS(OS) No. 702/2004, DOD 01.07.2009 by the Hon'ble High Court of Delhi.
8. Larsen & Toubro Ltd. (L & T) Vs. Leuci Communications & Ors. CS(OS) No. 1958/2006, DOD 01.02.2011 by the Hon'ble High Court of Delhi.
9. Procter & Gamble Company Vs. Joy Creators & Others, CS(OS) No. 2085/2005, DOD 15.02.2011 by by the Hon'ble High Court of Delhi.
10. Autodesk Inc. & Anr. Vs. Mr. Prashat Deshmukh & Others, CS (OS) No. 1755/2003, DOD 09.03.2011, by the Hon'ble High Court of Delhi.
11.Castrol Ltd & Others Vs. Mr. Rajinder Kumar Gupta & Ors, CS(OS) NO. 488/2005, DOD 04.03.2011 by the Hon'ble High Court T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 10 of 19 11 of Delhi.
18. Lastly it has been submitted that what has been propounded upon as defamation is in fact dilution of goodwill on account of defendant no. 1 indulging in plagiarism which in some circles is seen as plagiarism on the part of plaintiff. Thus it is not a suit for damages for defamation, libel or slander.
19. I have considered the rival submissions and the material on record.
20. Section 62 of the Copyright Act, 1957 reads as under: "62.Jurisdiction of court over matters arising under this Chapter:(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the direct court having jurisdiction.
(2) For the purpose of subsection (1), a "district court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908(5 of 1908), or any other law for the time be ing in force include a direct court within the local limits of whose jurisdiction, at the time of the insti tution of the suit or other proceedings, the person instituting the suit or other proceeding or, where T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 11 of 19 12 there are more than one such persons, any of them actually and voluntarily resides or carries on busi ness or personally works for gain."
21. Copyright Act is a special law and its provision will prevail over the general Act viz. the Code of Civil Procedure. The law on this aspect has been pronounced in the judgment relied upon by the plain tiff as Wockhardt Veterinary Ltd. Vs. M/s Raj Medicos & Anr. 1998 RLR 353.
22. It is necessary to have a look at certain relevant dates. The Arti cle subject matter of plagiarism was published in Nov. 1992; the plaintiff filed the first Suit filed on 31.07.1995 before the District Court; in the said suit the plaint was directed to be returned vide order dated 15.12.2001; the plaintiff filed the instant suit before the Hon'ble High Court of Delhi on 04.01.2002 (it was subsequently transferred to the District Court on enhancement of pecuniary jurisdiction).
23. While filing the returned plaint before the Hon'ble High Court of Delhi the plaintiff did not seek the remedy under section 14 of the Limitation Act. The said provision reads as under: "14. Exclusion of time of proceeding bona fide in court without jurisdiction--(1) In computing the period of limitation for any suit the time during T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 12 of 19 13 which the plaintiff has been prosecuting with due diligence another civil proceedings, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like na ture, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first in stance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of subsection (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation.-- For the purposes of this section, --
(a) in excluding the time during which a former civil proceeding was pending, the day on T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 13 of 19 14 which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceed ing;
(c) misjoider of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
24. Now when the objection as to limitation has been taken, the plaintiff has taken exception to the order dated 15.12.2001 passed by the Ld. Additional District Judge directing return of the plaint as being illegal. The moot question is whether the plaintiff can legally raise this plea before this Court. This would need a look into the provisions of Order 7 Rule 10, 10A and 10B of the Code of Civil Procedure as under: "10. Return of plaint-- (1)Subject to the provi sions of rule 10A, the plaint shall] at any state of the suit be returned to be presented to the Court in which the suit should have been instituted. Explanation.--For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this subrule. T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 14 of 19 15 (2) procedure on returning plaint--On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.
10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return--(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing, so, inti mate its decision to the plaintiff.
(2) Where an intimation is given to the plaintiff under subrule (1), the plaintiff may make an ap plication to the Court--
(a) specifying the Court in which he proposes to present the plaint after its return,
(b) praying that the Court may fix a date for the appearance of the parties in the said Court, and
(c) requesting that the notice of the date so fixed may be given to him and to the defendant.
(3) Where an application is made by the plaintiff under subrule (2), the Court shall, before return ing the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,--
(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be pre sented, and T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 15 of 19 16
(b) give to the plaintiff and to the defendant notice of such date for appearance.
(4) Where the notice of the date for appearance is given under subrule (3),--
(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded otherwise directs, and
(b) the said notice shall be deemed to be a sum mons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was re turned.
(5) Where the application made by the plaintiff un der subrule (2) is allowed by the Court, the plain tiff shall not be entitled to appeal against the order returning the plaint.
10B. Power of appellate Court to transfer suit to the proper Court--(1) Where, on an appeal against an order for the return of plaint, the Court hearing the appeal confirms such order, the Court of appeal may, if the plaintiff by an application so desires, while returning the plaint, direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (36 of 1963), in the Court in which the suit should have been instituted, (whether such Court is within or without the State in which the Court hearing the appeal is situated), T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 16 of 19 17 and fit a date for the appearance of the parties in the Court in which the plaint is directed to be filed and when the date is so fixed it shall not be neces sary for the Court in which the plaint is filed to serve the defendant with the summons for appear ance in the suit, unless that Court in which the plaint is filed, for reasons to be recorded, other wise directs.
(2) The direction made by the Court under subrule (1), shall be without any prejudice to the rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try the suit."
25. It has been held in Amar Chand vs. Union of India AIR 1973 SC 313 that if the plaint is returned and then refilled it is not the con tinuation of the suit.
26. As per Order 43 Rule 1, which reads as under, an order returning the plaint is appealable: "1. Appeal from orders--An appeal shall lie from the following orders under the provisions of section 104, namely:--
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court ex cept where the procedure specified in rule 10A of Order VII has been followed.
............................................." T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 17 of 19 18
27. The fact of the matter is that no appeal has been preferred by the plaintiff against the order dated 15.12.2001 passed by the Ld. Ad ditional District Judge.
28. It is the settled position of law that if the statute has prescribed a particular thing to be done in a particular manner it must be done in that manner only and all other ways are forbidden.
29. Article 88 of the Schedule I of the Limitation Act, 1963 is at tracted in the facts of the present case which reads as under:
88. For compensation Three years The date of the infringe for infringing copy ment.
right or any other ex clusive privilege.
30. Thus for cause of action which accrued to the plaintiff in November 1992, the present suit instituted on 04.01.2002 is clearly barred by limitation.
31. The finding on the preliminary issue is thus returned in the neg ative.
32. What order has to follow when the suit is barred by limitation is governed by section 3 of the Limitation Act which reads as under: T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 18 of 19 19 "3. Bar of limitation. --(1) Subject to the provi sions contained in Sections 4 to 24 (inclusive), ev ery suit instituted, appeal preferred, and applica tion made after the prescribed period shall be dis missed although limitation has not been set up as a defence."
33. Section 4 of the Limitation Act pertains to the expiry of prescribed period when court is closed and section 5 pertains to the extension of prescribed period in certain cases and the suits are specifically excluded from the purview of this provision. These provisions are not attracted in the present situation.
34. Accordingly the suit is dismissed being barred by limitation.
35. Decree sheet be drawn accordingly.
36. File be consigned to the Record Room.
Announced in the Open Court On this 24th day of May 2013.
(MAN MOHAN SHARMA) ADJ (Central)01, Delhi T.M. 82/2011 Ravi Visvesvaraya Prasad vs. Rajneesh Kapur & Ors. Page 19 of 19