Delhi District Court
Super Cassettes Industries Private ... vs K.Tv Varanasi on 11 November, 2024
IN THE COURT OF SH. NIKHIL CHOPRA, DISTRICT
JUDGE (COMMERCIAL COURT)-06, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI
CS (Comm) No.1294/2023
CNR No. DLCT01-014094-2023
Super Cassettes Industries Pvt. Ltd.,
E-2/16, White House, Ansari Road,
Daryaganj, New Delhi-110002.
Through Authorized representative
Sh. Manmohan Bhardwaj
......Plaintiff
Versus
M/s K. TV Varanasi,
Having its office at Flat No.1,
Priya Apartment, Batuk Bhairav,
Kamachha, Varanasi (U.P.).
....Defendant
Date of Institution : 09.10.2023
Final arguments : 25.10.2024
Date of decision : 11.11.2024
EX-PARTE JUDGMENT
1.Judgment disposes off a commercial suit for permanent injunction against infringement of copyright and damages.
2. Shorn of avoidable details, the case of the plaintiff is that it is a private limited company having its registered office at Ansari Road, Daryaganj. Sh. Manmohan Bhardwaj is the constituted CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.1 of 16 authority and has also been authorized to file the present suit in terms of resolution dated 27.01.2023. The plaintiff is stated to have been originally established in the year 1983. It is stated to be one of the India's leading and most reputed music companies and its label- 'T-SERIES' is regarded as one of the top names in the filed of films and music industries and is now also regarded as top producers and distributors of films in India. The plaintiff is also stated to have developed the state of art facility for recording music and has a number of exclusive recording arrangement with well known artists and singers. The plaintiff has also initiated Music Bank, first in the country, a Storehouse of old and new titles. Besides, it is averred that the plaintiff had launched and/or supported some of the biggest names in the music industry and has also produced biggest blockbuster hits in the field of Indian cinema.
3. As regards the original work produced on behalf of the plaintiff, it is the corporate author of the first owner of copyright in the sound recordings as well as audio visual works. It is averred that the plaintiff has also acquired copyright in all the literary, musical and other works which it commissions and manages by way assignments from authors and/or other prior owners of copyright in the same. The plaintiff, it is further averred, owns large repertoire of copyrighted works comprising cinematographic films and sound recordings as well as underlying musical and literary works. The plaintiff's lable- 'T- SERIES' has over 20,000 Hindi films and non-film songs as well CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.2 of 16 as more than 50,000 songs in the regional languages to its credit.
4. The plaintiff is stated to own copyrights in the songs ' Heer Raanjhana' from the film 'Bachhan Pandey', the song 'Pehli Dafa' from the film 'Pehli Dafa', the song 'Humsafar ' from the film 'Badrinath ki Dulhaniya', the song 'Dil Galti Kar Baitha' from the film/album 'Dil Galti Kar Baitha', the song 'Tu mera ho gya hai' from the film 'Tadap', the song 'Jug Jug Jeeve' from the film 'Shiddat' and had assignment deeds/copyright certificates in this respect. By virtue of being owner of the copyright, the right under Section 14 of the Copyright Act, 1957 flow to the plaintiff, including but not limited to communicating the work in question to public under the provisions of Section 14(1)(a)(iii) as regards the literary and music work, Section 14(1)(d)(iii) as regards cinematography film and Section 14(1)(e)(iii) as regards sound recordings.
5. It is averred that the public generally easily identifies the plaintiff's repertoire since all the CDs/DVDs/VCDs prominently displaying the logo of the plaintiff's label- 'T-SERIES'. Besides, in terms of the requirements of Section 52A of the Copyright Act, such products contain a notice as to the plaintiff's ownership of the copyright.
6. The plaintiff is stated to have a robust and well defined business licensing policy enabling third party organization including telephone broadcasting organizations, FM radio CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.3 of 16 channel and cable television operators to apply for and obtain licences for use of its copyrighted works comprising of cinematograph films, sound recordings and underlying musical and/or literary work. The plaintiff actively pursues its policy and licensing constitutes a major portion of the business of the plaintiff. It is averred that the plaintiff has executed various licencing agreements for use of its copyrighted works with various media entities and network of channels. The plaintiff is also stated to be granting licences to Multi-System Operators and Cable Television Operators, who operate their own cable network channels. It is averred that to check the unauthorized use/infringement, the plaintiff carries out random monitoring of television channels and had also been diligent in protecting its intellectual property rights by means of legal actions against such borrowers.
7. The defendant is stated to be carrying on the business of providing cable TV services under the name and style of 'M/s K. TV Varanasi'and has various subscribers in the State of Uttar Pradesh, including the city of Varanasi and is one of the largest ground cable network providers of the State. The defendant is stated to have more than 25,000 connections as per the survey conducted by the investigator/AR for the plaintiff company. The AR for the plaintiff company is stated to have made sample recordings of the contents being broadcasted/telecasted by the defendant through its ground cable network in Varanasi during his visit. It is also averred that he made equiries and came to CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.4 of 16 know that the defendant has approximately 25,000 connections and is a leading cable operator. The defendant is stated to be using its local channel such as K. TV News, whose mark is prominently displayed on the top right hand corner of the screen. The defendant provides services such as Non-stop music/entertainment wherein Hindi songs, devotional songs from commercial films, albums are broadcasted exclusively and freely. The business model of the defendant is to operate non-stop music channel to enhance viewership amongst its subscribers and to increase the revenue generation through advertising. The defendant is broadcasting/communicating to the public the sound recordings, the underlying works and audio visual songs as well as other works of the plaintiff through its cable network channels like "K. TV News" without obtaining any licence or permission from the plaintiff, amounting to infringement of the copyright of the plaintiff. Such infringement is causing enormous loss of revenue to the plaintiff in shape of licensing fee.
8. It is averred that in the course of random monitoring of channel, on a sample basis, in the month of January, 2023, the plaintiff came to know that the defendant was utilizing and broadcasting musical audio visual works of the plaintiff unauthorizedly, and without any license of permission. AR for the plaintiff has made certain recordings of infringement material at a tea stall near Railway Station, Varanasi on 22/23.01.2023 which shows that the defendant has been broadcasting audio visual clips of the various songs mentioned hereinabove through CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.5 of 16 local channel such as K TV News.
9. It is further averred that in respect of the songs copyright whereof vests with the plaintiff, the defendant, had removed/over shadowed 'T-SERIES' logo while broadcasting the contents of its channel and has shown its own logo on the right hand top corner of the screen with malafide intention and ulterior motive. The defendant had been broadcasting the said songs to the public, with ulterior motive and sole object of making illicit financial gains without recognizing the copyright of the plaintiff.
10. The plaintiff served a letter dated 10.02.2023 upon the defendant which, as per the tracking report, stood served but the defendant failed to take appropriate license and continued illegal and unauthorized use. The plaintiff issued a legal notice dated 03.03.2023 asking the defendant to cease and desist from broadcasting/communicating to the public the sound recordings and underlying works as well as audio visuals songs, the copyright whereof is owned by the plaintiff and to pay the damages to the tune of Rs.25,00,000/- on account of unauthorized use. Despite service of the notice, the defendant did not stop using the plaintiff's copyright work or approach the plaintiff for obtaining a cable license to broadcast the works of the plaintiff.
11. The defendant is one of the largest cable TV operators in the State of Uttar Pradesh, including the city of Varanasi having CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.6 of 16 more than 25,000 subscribers/connections in the area and has been actively infringing the works of the plaintiff. The plaintiff, it is further averred, is claiming to damages to the tune of Rs.25,00,000/- though entitled to much higher amount on account of the fact that the license fee per connection per house is Rs.18/- per month apart from applicable taxes.
12. While claiming cause of action to have accrued on several dates including the date of serving the legal notice dated 03.03.2023; and on 28.03.2023, when the plaintiff had filed the Pre-Mediation Claim before Central District Legal Services Authority as well as on 21.07.2023 when the Non-Starter Report was issued by the Central District Legal Services Authority; and further claiming that the cause of action continues to accrue in view of the defendant's continuing with telecasting/broadcasting the copyrighted content of the plaintiff; and further claiming that this Court has the territorial jurisdiction under Section 62(2) of the Copyright Act, 1957 and that the subject matter is a commercial dispute, the plaintiff has prayed for a decree of permanent injunction restraining the defendant from infringement as well as a decree of damages to the tune of Rs.25,00,000/- together with costs.
13. Summons were sent to the defendant, however, the defendant could not be served through ordinary process and, accordingly, the defendant was served through publication in the newspaper 'Amar Ujala' Edition dated 22.06.2024. Defendant CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.7 of 16 was proceeded ex-parte vide order dated 15.07.2024, as defendant failed to appear or contest the present proceedings.
14. Vide order dated 15.07.2024, following issues were framed:-
i. Whether the plaintiff is the owner/copyright holder in respect of the audio video contents being relied upon by the plaintiff? OPP ii. Whether this Court has the territorial jurisdiction to try and entertain the present suit? OPP iii. Whether the defendant has violated the copyright of the plaintiff by means of unauthorized telecast of the content owned by the plaintiff, if so its effect?
OPP
iv. Whether the plaintiff is entitled for permanent
injunction and damages, as prayed for? OPP
v. Relief.
15. The plaintiff examined its AR Sh. Manmohan Bhardwaj who deposed through affidavit as PW-1 and proved the following documents:-
1. Copy of Board Resolution as Ex.PW-1/1;
2. Non Starter Report dated 21.07.2023 as Ex.PW-1/2;
3. Copy of Fresh Certificate of Incorporation as Ex.PW-1/3;
4. Copyright certificate of the song 'Heer Raanjhana' from the film 'Bachchhan Pandey' as Ex.PW-1/4 (OSR);
5. Copyright certificate of the 'Pehli Dafa' from the film 'Pehli Dafa' as Ex.PW-1/5 (OSR);
6. Copyright certificate of the song 'Humsafar' from the film 'Badrinath ki Dulhaniya' as Ex.PW- 1/6 (OSR);
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7. Copyright certificate of the 'Dil Galti Kar Baitha Hai' from the film/ album 'Dil Galti Kar Baitha Hai' as Ex.PW-1/7 (OSR);
8. Copyright certificate of the 'Tu Mera Ho Gaya Hai' from the film 'Tadap' as Ex.PW-1/8 (OSR);
9. Copyright certificate of the 'Jug Jug Jeeve' from the film 'Shiddat' as Ex.PW-1/9 (OSR);
10. Copies of interim orders of the Hon'ble High Court as well as District Courts of Delhi passed against Multi System Operators/ Ground Cable Network Operators as Mark-Z;
11. Investigator affidavit bearing my signatures at points A and B and Cue Sheet, CD/ DVD and coloured screen shots as Ex.PW-1/10 (Colly.);
12. Letter dated 10.02.2023 along with the Speed Post receipt and Track Reports as Ex.PW1/11 (Colly.);
13. Office copy of Legal Notice dated 03.03.2023 along with Speed Post Receipts and Track Reports as Ex.PW1/12 (Colly.);
14. Printout taken from the official website of the plaintiff company as Ex.PW1/13 and
15. Affidavit under Section 65 B of the erstwhile Indian Evidence Act as Ex.PW1/14.
16. Main contentions of the learned counsel for the plaintiff are that -
i. Plaintiff is the owner of copyright vested in audio-visual content/songs of various films, as have been proved as Ex.PW-1/4 to Ex.PW-1/8.
ii. The defendant has unauthorizedly been broadcasting and airing the songs/audio-visual content belonging to the plaintiff without any license or permission from the plaintiff.
iii. Plaintiff has poved the incidence of violation of copyright by means of Ex.PW-1/10 (colly) and had notified the defendant through letter CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.9 of 16 dated 10.02.2023.
iv. In view of defendant's failure to stop infringing the plaintiff's copyright, the plaintiff served a legal notice upon the defendant, proved on record as Ex.PW-1/12 (colly). Plaintiff had later initiated Pre-Institution proceedings as against the defendant but the defendant avoided to appear, resulting into Non-Starter Report dated 10.03.2021.
v. Defendant has around 25,000 connections/subscribers and considering the amount of license fee/charges per month, the plaintiff is entitled to huge amount of damages, but is restricting its right to damages of Rs.25,00,000/-, apart from relief of injunction.
17. I have heard learned counsel for the plaintiff and have also considered the documents in light of submissions.
18. Time now to deal with the issues. Issues nos.1 and 3 are taken up together:-
"Issue No.1- Whether the plaintiff is the owner/copyright holder in respect of the audio video contents being relied upon by the plaintiff? OPP Issue No.3- Whether the defendant has violated the copyright of the plaintiff by means of unauthorized telecast of the content owned by the plaintiff, if so its effect? OPP"
19. The Plaintiff copyrights over the songs 'Heer Raanjhana' 'Pehli Dafa'Humsafar', 'Dil Galti Kar Baitha Hai', 'Tu Mera Ho Gaya Hai', 'Jug Jug Jeeve' , stand proved in view of certificates Ex.PW-1/4 (OSR) to Ex.PW-1/9 (OSR). Ex.PW-1/10 (colly) also proves that there is an incidence of violation of copyright, considering the document in light of affidavit in evidence of PW-1 Sh. Manmohan Bhardwaj, whose testimony has gone CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.10 of 16 unrebutted. Plaintif has also proved certificate under Section 65B of the Evidence Act to support the digital records.
20. Ex.PW-1/10 (colly), when, examined in the light of submissions, and testimony of PW-1, proves that the defendant has violated the copyright of the Plaintiff. The plaintiff has also proved the CD containing the recording as well as cue-sheet. The audio-visual content clearly depicts the logo 'K.TV' including in respect of songs which are copyrighted in favour of plaintiff. With these records proved and having regard to the unrebutted testimony of PW-1, a conclusion as to infringement by defendant can fairly be drawn. Issues No.1 and 3 are, accordingly, decided in favour of the plaintiff and against the defendant.
21. Coming now to issues no.2:-
"Whether this Court has the territorial jurisdiction to try and entertain the present suit? OPP"
22. In this respect, the Plaintiff has drawn attention of the Court towards Section 62(2) of the Copyright Act. It is impressed that the Plaintiff' office is located within the territorial jurisdiction of this Court. Issue no.2, thus, stands decided in favour of plaintiff.
23. Coming now to Issue No. 4:-
"Whether the plaintiff is entitled for permanent injunction and damages, as prayed for? OPP"
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24. In regard with relief of damages to the tune of Rs.25,00,000/-, it has been impressed upon by the Ld. Counsel for the plaintiff that the plaintiff's AR/ Investigator had made inquiries from the local people and have come to know that defendant is one of the largest cable TV operator of the region and has more than 25,000 subscribers. It has also been contended that the defendant has continued to violate the copyright repeatedly and continuously and despite notice and has derived illegal benefit at the cost of plaintiff's copyright. Besides, it has been impressed that going by the licence fee/charges per month/ per connection, for over a period of time, the plaintiff entitlement is to a much higher amount of damages, but in restricting its claim to Rs.25,00,000/- only.
25. The plaintiff has also placed reliance on the following judgments of Hon'ble High Court of Delhi:-
(i) Super Cassettes Industries Pvt. Ltd. Vs. Good Media News Pvt. Ltd. [CS (Comm) 1161/2016 dated 02.04.2018]
(ii) Super Cassettes Industries Pvt. Ltd. Vs. Sky Vision Digital Cable Network [CS (Comm) 14/2015 dated 06.08.2018]
26. The Court, however, would hesitate to accept the contention of the Ld. Counsel for the plaintiff for a number of reasons. There is no proof as to magnitude and extent of violation or continuity of violation for such a long period of time, that entitles the plaintiff to the damages of Rs.25,00,000/- as is claimed. Besides, there is nothing on record which could even CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.12 of 16 remotely suggest that the defendant has 25,000 number of subscribers. Having regard to the nature of damages, which not only appear to be compensatory and punitive in nature, the Court is to be driven by necessary caution. The absence of any evidence, though by itself, cannot be considered as a reason of rejection of the claim, at the same time, the Court needs to have some reasonable basis for quantifying the same. The only evidence of infringement that has come on record is Ex.PW1/10 (Colly.). The same cannot be stretched or constructed to imply grant of damages at such a rate in the absence of some credible evidence. The fact that the defendant has not come forward to resist the claim, does not absolve the plaintiff to prove the extent of damages.
27. In a recent decision of Hon'ble High Court of Delhi- 'Starbucks Corporation vs. Teagula A. Ashion' [ C.S. (Comm) 479/2019, decided on 06.05.2022], the Court dealt with a claim of damages in relation with infringement of intellectual property and observed that inadequacy of evidence in this respect would only warrant for grant of notional damages. The relevant extract of the said judgment is as under:-
"20. According to the Plaintiff, 400 beverages have been presumably sold by the Defendants. Having analysed the claim made by the Plaintiff towards damages, this Court is of the view that the claim for damages is based on presumptions that the Defendants would have sold 400 beverages in the relevant period. Plaintiff has not placed on record invoices for the sales, save and except one invoice and this cannot, in my view, lead to a conclusion that 400 beverages may have been sold. No stocks were CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.13 of 16 recovered or seized from the premises of the Defendants. The entire claim is thus based on conjectures and surmises and no evidence has been led to support the claim of damages. In the absence of any evidence or sufficient material in favour of the Plaintiff, this Court is not in a position to award the damages claimed.
21. Learned counsel for the Plaintiff relied upon the judgement of the Co- ordinate Bench of this Court in Cartier International AG & Ors. v. Gaurav Bhatia & Ors., 2016 SCC OnLine Del 8, in support of the claim for damages. In the said case, there was evidence on record in the form of telephonic transcripts as well as seized goods which were counterfeit products, whereby the Plaintiff was able to prove and establish sale of the counterfeit products and in these circumstances, the Court had awarded punitive damages. Judgement in the case of Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd., 2014 SCC OnLine Del 490 relied upon by the Plaintiff was a case of disparagement through telecast of the impugned advertisements and not a case of trademark infringement. Secondly, evidence was led in the form of number of times the advertisements were telecast, quantum of advertisement expenses incurred by the Defendant in the suit therein and amounts spent by the Plaintiff therein to advertise its products, etc. Thus, in my view, none of the two cases inure to the advantage of the Plaintiff herein to establish its claim towards damages. However, the Court cannot lose sight of the fact that Defendants have been found guilty of infringement and in such circumstances, Court can grant notional damages in terms of the judgment in Indian Performing Right Society v. Debashis Patnaik, 2007(34) PTC 201 Del. Accordingly, damages to the tune of Rs.2,00,000/- are awarded in favour of the Plaintiff and against the Defendants."
28. Considering the factual matrix of the case, plaintiff's claim of Rs.25,00,000/- as damages is not justified. The Plaintiff is held entitled to notional damages of Rs.3,00,000/- which the Court CS (Comm) 1294/2023 M/s Super Cassettes India Pvt. Ltd. Vs. K. TV Varanasi Page No.14 of 16 finds to be integrating better with facts involved in the case.
29. Insofar as relief of permanent injunction is concerned, Plaintiff's claim is well placed and made out. Issue no.4 is decided in favour of the plaintiff, accordingly.
30. "Issue no.5- Relief"
31. (i) A decree of permanent injunction is granted in favour of the Plaintiff and against the Defendant thereby restraining the Defendant, its agents, partner and all other acting for and on behalf its behalf from either engaging themselves or authorizing the recording, distributing, broadcasting, public performance/communication to the public or in any other way exploiting the cinematograph films, sound recordings and/or literary works(lyrics) and musical works (musical composition) or other work or part thereof throughout India, owned by plaintiff.
(ii) Decree of damages to the tune of Rs.3,00,000/- is also passed in favour of the Plaintiff and against the Defendant. The defendant is directed to make the payment of damages to the plaintiff within three months from today.
32. Decreed with costs.
33. Decree-sheet be prepared accordingly.
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34. File be consigned to record room after due compliance.
Dictated and Announced today
i.e. on 11th day of November, 2024 Digitally signed
by NIKHIL
in the open Court NIKHIL CHOPRA
CHOPRA Date:
2024.11.11
16:38:36 +0530
(NIKHIL CHOPRA)
District Judge (Commercial Court-06)
Central, Tis Hazari Court, Delhi
11.11.2024
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