Andhra HC (Pre-Telangana)
Palakurthu Laxmi Ganapathi Rao And ... vs Manisha Video Vision on 20 July, 2006
Equivalent citations: 2007(34)PTC33(NULL)
JUDGMENT P.S. Narayana, J.
1. Introduction: - The plaintiff in O.S. No. 1/89 on the file of District Judge, Krishna at Machilipatnam, is the appellant and defendants 1 and 2 in the said suit are the respondent herein. For the purpose of convenience, the parties would be referred to as the plaintiff and defendants 1 and 2. The plaintiff filed the suit under Section 62 of the Copy-right Act, 1957, for declaration that he is the copyright holder of the Telugu feature film Paramanandayya Sishula Katha and also for the relief of mandatory injunction directing defendants 1 and 2 to surrender and deliver the material relating to the film i.e., 3/4th U matic cassettes, 1/2 VHS video cassettes, video gram, Discs, tapes, etc., and also for permanent injunction restraining the defendants, their men, agents, etc., from over exploiting the plaintiffs right over the said picture and also claiming damages of Rs. 1,00,000 and for accounts. The Trial Court recorded the evidence of P.W. 1, D.Ws. 1 and 2, and marked Exs. A-l to A-10 and Exs. B-1 and B-2, and, ultimately, decreed the suit granting the relief of declaration, perpetual injunction and mandatory injunction as prayed for and also further directed that the relief of accounts to be settled by way of a separate application and dismissed the suit relating to the claim of the relief of damages and also directed the parties to bear their own costs. Appellant herein the plaintiff aggrieved by that portion of negativing the relief of granting damages had preferred the present appeal.
2. Submissions of Shri 4 Chittoori Srinivas, the Counsel representing the appellant-plaintiff:
The learned Counsel representing the appellant-plaintiff had taken this Court through the respective pleadings of the parties, the issues settled and the findings recorded by the Trial Court and would contend that having recorded positive findings in relation of other issues, negativing the relief of damages cannot be sustained. The learned Counsel also would submit that the learned Judge having observed that the action of defendants 1 and 2 in taking video films is nothing but infringement of copyright of the plaintiff should have awarded damages of Rs. 1,00,000 as prayed for instead of dismissing the claim. The learned Counsel also made certain submissions relating to the relief of accounts and the relief of damages which had been prayed for. The learned Counsel also would contend that non-granting of the costs in the facts and circumstances also is not justifiable. The learned Counsel placed reliance on certain decisions in this regard.
3. Submissions of Shri Laxminarayana Reddy, the Counsel representing Respondents 1 and 2/defendants 1 and 2:
Sri Laxminarayana Reddy, the learned Counsel representing Sri Praveen Kumar, the Counsel on record for respondents 1 and 2/defendants 1 and 2 in the suit, would maintain that the learned Judge recorded reasons in detail and ultimately, negatived the relief of damages. The learned Counsel also would submit that as far as the at her findings are concerned, they had attained finality inasmuch as no separate appeal was preferred by the defendants 1 and 2. The learned Counsel also would further maintain that awarding of costs is within the discretion of the Court and when the Trial Court had exercised the discretion and had disallowed the costs, the same need not be disturbed in this appeal. Submissions we made that before the Trial Court no material had been placed to assess the damages, in any way.
4. Heard the Counsel on Record.
5. Pleadings of the parties: - Plaint: - Appellant herein-the plaintiff in the suit averred in the plaint, as hereunder:
The plaintiff firm is a registered partnership firm doing Telugu film business at Machilipatnam. M/s. Sridevi Combines is a registered partnership firm doing film business having their office at Tanuku and the said firm purchased the Telugu Talkie picture in 35 mm. titled Paramanandayya Sishula Katha starring Sri N.T. Rama Rao, K.R. Vijaya etc., directed by Sri C. Pullaiah. The plaintiff entered into an agreement on 12.9.1974 with M/s. Sridevi Combines, under which the plaintiff became absolute owner of the said picture for the ownership and enjoyment of perpetual world negative rights including exhibition, exploitation and story rights, in all languages etc., of the said picture. Thus, the plaintiff has got absolute rights over the said picture and the copyright over the said picture. Under Section 2(f) definition of Cinematograph film includes any work produced by any process analogous to Cinematograph, the exhibition of film in a television through videotape in which a cinematograph film is recorded will also fall within the definition. Since the video tape tapes within the definition of Cinematograph film copyright should also be taken to have been created in respect of the video film under Copyright Act, 1957. The plaintiff with an abundant caution made a general publication to Telugu newspapers that he has got copyright over the picture and any attempt to infringe his right is illegal.
The 1st defendant firm is producing pre-recorded cassettes of Cinematograph film, the 2nd defendant is the proprietor of the 1st defendant concern. The plaintiff came to know recently that the 2nd defendant in the name of the 1st defendant produced and created the video cassettes of the picture Paramandayya Sishyula Katha without obtaining permission or concern of the plaintiff who has got absolute rights over the said picture. The defendant also made false declaration. Under Section 52(1) of the Copyright Act, in respect of the cinematograph film the publisher has to publish copy of the certificate granted by the Board of Film Certification. The defendants 1 and 2 failed to declare and exhibit the name and address of Copyright owner. Further they made a false declaration that they obtained the consent from the copyright owner without indicating the name of the copyright owner and they exhibited the Censor Certificate which is not at all visible. The Censor Certificate in fact would indicate the plaintiff is the real owner. The defendants 1 and 2 fully aware that the plaintiff is the absolute owner of the picture and they played fraud in marketing the video cassettes. The plaintiff therefore got issued a registered notice to the defendants dated 15.1.1989 claiming damages to a tune of Rs. 1,00,000 and called upon the defendants to surrender the recorded cassettes and the matter casette which they produced. The defendants sent a reply with false allegations asserting that the plaintiff had no right over the said picture and they entered into an agreement to transfer the feature film on video cassettes, Videogram, disc, tape and they are entitled to distribute, exhibit, and sell the said cassettes, having entered into an agreement with the 3rd defendant on 7.12.1988. But the said agreement is not true and valid. The defendants 1 and 2 colluded with the 3rd defendant who himself has no manner of right to enter into any such agreement. By infringing the plaintiffs right, the defendants are benefited to a tune of Rs. 1,00,000.
Written statement filed by Respondents 1 and 2-defendants 1 and 2:
Though the suit was instituted against 3 defendants, by virtue of a memo, the plaintiff had given-up the 3rd defendant and the suit was resisted by the respondents herein-defendants 1 and 2 only. It was pleaded in the written statement, as hereunder:
The plaintiff did not acquire any copyright of the entire picture. He purports to have obtained only negative rights in the picture under the agreement dated 12.9.1974. Since, by then video rights were not known to anybody. It is impossible to urge that there was transfer of an unknown right which the transferor could not transfer and the entire cinematograph film, has not been transferred and only rights on the negatives, then known, then being enjoyed were started to be transferred. Further M/s. Sridevi Combines was not sole produced and the managing partner, Tota Subba Rao has no exclusive rights to transfer such rights of the picture. Since all the partners did not transfer, the managing partner has no right to transfer the assets of the film. The plaintiff did not register the copyright in the picture as provided by copyright Act and consequently a valid transfer has to be proved by the plaintiff. The 1st defendant obtained an assignment of the video rights in the picture from the 3rd defendant under an agreement dated 7.12.1988 and the 3rd defendant in turn obtained the rights under the agreement dated 3.12.1988 from M/s. Sridevi Productions represented by Tota Narayana Rao, S/o. Subba Rao and T. Satyavati, W/o. Subba Rao. M/s. Srivedi Combines is quite different from M/s. Sridevi Production. Thus, the defendants did not infringe the copyright of the plaintiff in any manner and they have been carrying business in their own right. The remedy to the plaintiff is to proceed against his assigners but not against the defendants 1 and 2. The defendants are not aware of the alleged publication made by the plaintiff on 28.12.1988. Perhaps knowing about the assignment of the video rights in favour of the defendants, the said publication might have been made. Unless the video rights are specifically assigned to the plaintiff at any time, he cannot claim such rights or seek for their enforcement and, therefore, the plaintiff is not entitled to any relief claimed by him.
6. Issues settled by the Trial Court:
(1) Whether the plaintiff obtained assignment of video rights under the agreement, dated 12.9.1974?
(2) Whether the plaintiff will get video rights also to the suit picture in view of his having absolute rights over the picture?
(3) Whether the plaintiff is the owner of the copyright of Paramanandayya Sishulu Katha' as alleged?
(4) Whether the defendants infringed the copyrights of the plaintiff?
(5) Whether the alleged agreement dated 7.12.1988 will confer video rights to the 1st defendant in respect of the suit picture?
(6) Whether the plaintiff is entitled to claim accounting?
(7) Whether the plaintiff is entitled for the permanent and mandatory injunction as prayed for?
(8) Whether the plaintiff is entitled to recover damages of Rs. 1,00,000?
(9) To what relief?
7. Evidence recorded by the Trial Court:
Before the Trial Court, the plaintiff examined himself as P.W. 1 and Exs. A-1 to A-10 were marked. On behalf of the defendants, the 2nd defendant was examined as D.W. 1 and D.W. 2 also was examined. Exs. B-1 and B-2 were marked.
8. Findings recorded by the Trial Court:
The Trial Court had arrived at a conclusion that the plaintiff is the owner of the whole property in the film 'Paramanandayya Sishula Katha' and the video rights also are vested in the plaintiff since such right is only subsequent scientific innovation and must necessarily flow from the original ownership and thus answered Issues 1 to 3 in favour of the plaintiff. A further finding had been recorded that Exs. B-1 and B-2 do not confer any right relating to video rights on the defendants and answered Issues 4, 5 and 7 also in favour of the plaintiff. However, while answering Issues 6 and 8, the Trial Court recorded findings and observed that the accounts are to be taken by a separate application to be filed by the plaintiff in this regard. However, the Trial Court while answering Issue No. 9, specifically negatived the relief of damages and also had not awarded any costs.
9. Points for consideration in this appeal:
In the light of the respective pleadings of the parties, the Issues settled, the findings recorded by the Trial Court, the submissions made by the respective Counsel, the following points arise for consideration in this appeal:
(1) Whether negativing the relief of damages, having held that the plaintiff is the owner of the whole property of the film 'Paramanandayya Sishula Katha' can be sustained in the facts and circumstances of the case?
(2) Whether the discretion was exercised properly in negativing the relief relating to costs by the Trial Court?
(3) If so, to what relief the parties are entitled to?
10. Point No. 1:
Though several issues were settled and findings in detail had been recorded by the Trial Court, the defendants had not filed any appeal as against the findings recorded and the relief granted by the Trial Court and thus, they had attained finality. Exs. A-1 and A-2 would show that the plaintiff is a registered firm. It is also not in serious controversy that Ex. A.3, dated 12.9.1974, an agreement was entered into in between the plaintiffs firm and M/s. Sridevi Combines, a registered partnership firm, Tanuku, represented by its Managing Partner relating to the Telugu picture Paramanandayya Sishula Katha. It may be appropriate to have a glance at the contents of Ex. A.3, as shown hereunder:
This Deed Of Agreement made and entered into on this the 12th September, 1974 by and between 1. M/s. Sri Devi Combines, a registered Partnership firm doing film business having their office at Tanuku and represented by its Managing Partner, Sri Thota Subba Rao hereinafter referred to as the producers on the part of the 1st Part and (2) M/s. PL. Ganapathi Rao and Gundu Subhadramma, a registered partnership firm doing film business at Chemmanagiripet, Machilipatnam represented by its Managing Partner, Sri P.L. Ganapathi Rao, hereinafter referred to as the Owners on the part of the 2nd Part.
(The Terms Producers and Owners wherever they may occur in these presents unless repugnant to the context or meaning thereof shall mean and include their heirs, transferees, successors, administrators and legal assigns).
Whereas the producers herein had produced a Telugu Talkie picture in 35 M.M. entitled 'Paramanandayya Sishyula Katha' starring N.T. Rama Rao, K.R. Vijaya, etc., etc., directed by Sri C. Pullayya, whereas the said picture has been given to M/s. The Poorna Private Limited, Gandhinagar, Vijayawada-2, for distribution. Whereas during production of the said picture the party of the 1st Part raised loans on pledging the negatives and sound negatives in favour of Sri N.S. Murthy, 9, Habibullah Road, Madras-17, whereas in pursuance to the said charge the realisations of the said picture from the area entrusted to the Poorna Pictures Private Limited, Vijayawada-3, were being sent to Sri N.S. Murthy, as and from 28th June, 1967 vide the provisions of the said agreement of 28th June, 1967; whereas while the matters stood thus, the party of the 1st Part has given a lease of the said picture for 10 (ten) years to the party of the 2nd Part herein under the provisions of a lease deed dated 5.8.1970 executed by the party of the 1st Part and whereas the party of the 1st Part by his letter dated 7th March, 1971 executed in favour of the party of the 2nd Party herein agreed to part with the perpetual world negative rights of the said picture including exhibition, exploitation and story rights in all languages etc., on a payment of Rs. 36,000 (Rupees : Thirty six thousand only) to the financier Sri N.S. Murthy, whereas in pursuance to the instructions contained in the said letter and the party of the 2nd Part herein had fulfilled the terms of the said letter, consequent on which, Sri N.S. Murthy who had till then was having control over the negative rights of the said picture executed in favour of Sri P.L. Ganapathi Rao and Gundu Subhadramma, Machilipatnam an agreement dtd. 7th August, 1971 transferring all his rights in favour of the party of the 2nd Part, synchronizing with the letter and spirit of the letter dated 7th March, 1971 executed by Sri Devi Combines - Tanuku; whereas the party of the 2nd Part herein have thus become the absolute owners of the said picture with perpetual world negative rights including exhibition, exploitation and story rights in all languages, whereas while simultaneously executing the said deed by Sri N.S. Murthy in favour of the party of the 2nd Part herein, Sri N.S. Murthy had also empowered the laboratory, M/s. Vijaya Productions Private Limited, Madras -26, to transfer and keep the negatives thereafter only in favour of M/s. P.L. Ganpathi Rao and Gandu Subhadramma, Machilipatnam, and whereas the party of the 2nd Part as absolute owner of the said picture "PARAMANANDAYYA SISHULA KATHA' are enjoying the perpetual world negative rights including exhibition, exploitation and story rights in all languages etc., and also the realisations from the Poorna Picture Private Limited, Gandhi-nagar, Vijayawada-3 till now and whereas the party of the 1st Part hereby confirms the same and accordingly the party of the 2nd Part vide his letter is maintaining his absolute ownership whereas the party of the 1st Part vide his letter dated 7th March, 1971 confirming the perpetual world negative rights requested the party of the 2nd Part to allow him to part with the realisations of the said picture relating to the territory of the Ceded Districts as popularly known in the film field and allow him to pay such realisations till 9th March, 1973 to M/s. Madheswara Movies, Bangalore. Whereas on and from 20.3.1973 to be in conformity with the ownership for the entire area it has been proposed that the realisations should go only to the party of the 2nd Part from that date onwards whereas the said letter dtd. 7th March, 1971 indicates that the pacca agreement shall be entered into at a later date in pursuance to which the party of the 2nd Part as owners requested the party of the 1st Part to execute this deed and the party of the 1st Part having agreed.
Now This Agreement Witnesseth As Follows:
1. The Party of the 1st Part hereby confirms the ownership and enjoyment of the perpetual world negative rights including exhibition exploitation and story rights in all languages etc., of the Telugu Talkie picture 'Paramanandayya Sishula Katha, and also confirms the keeping of the negatives, sound negatives in favour of the party of the 2nd Part at M/s. Vijaya Productions Private Limited, Madras-26 and hereby recognises the party of the 2nd Part as the absolute owner of the said film.
2. That the party of the 1st Part hereby confirms that the consideration agreed to be paid by the party of the 2nd Part had been already paid at the appropriate times in pursuance to the various letters and documents herein above referred in the preamble and which is hereby acknowledged.
3. That the said picture with all the rights mentioned in these presents which are hitherto enjoyed by the party of the 2nd Part shall continue without any interruption by the party of the 1st Party and the Party of the 1st Part shall have no interest whatsoever of any nature and the party of the 1st Part shall have also no claim whatsoever either in said picture, its collections or its negatives.
4. The party of the 1st Part is arranging to regularise the realisations relating ceded area to be paid to Party of the 2nd Part mentioned in the preamble of this agreement within the reasonable time and the party of the 2nd Part shall automatically be getting such realisations etc. of the ceded area into their hands.
5. The party of the 2nd Part is hereby empowered and authorised as 'absolute owner' to produce a copy of this document at the required place/s i.e., Board of Film Censors and the Joint Chief Controller of Imports and Exports, Madras, and have the recensors etc., completed at the Board of Censors and also have the required positive and other allied materials from the Joint Chief Controller of Imports and Exports and also in dealing with South Indian Film Chamber of Commerce or other chambers existing in the Industry.
6. That all such royalties by way of sales of Gramophone Records etc., etc., shall be hereafter enjoyed by you alone and you are empowered to deal with the representatives suitably.
7. That any disputes arising out of this agreement the Courts at Machilipatnam alone shall have jurisdiction.
In witness whereof the parties hereto have set their hands and signatures on the day and year first above written.
Ex. A-4 is the publication made in Andhra Jyothi, Telugu News paper, relating to the picture Paramanandayya Sishula Katha. Ex. A-5 is the Wrappu of the cassette of Paramanandayya Sishula Katha made by the defendants. Ex. A-6, dated 7.5.1976, is the certificate of unrestrict public exhibition in respect of the film Paramanandayya Sishula Katha issued by the Chairman, Central Board of Film Censors, Government of India, Madras. Ex. A-7 is the office copy of registered notice, dated 15.1.1989. Ex. A-8 is the notice, dated 25.1.1989, Ex. A-9 is dated 1.12.1984, agreement entered into between plaintiff firm and M/s. Poorna Financiers, Vijayawada, represented by its partner for leasehold rights for exhibition, exploitation and distribution of Telugu film Paramanandayya Sishula Katha for a period of 5 years. The contents of Ex. A-9 also may be looked into in this context and the contents are as hereunder:
This Agreement is made on this 1st day of December, 1984 by and between:
M/s. P.L. Ganapathi Rao & Gundu Subhadramma, a partnership firm, doing film business, having their office at Chemmanagiripet, Machilipatnam-521001 represented by its Partner Sri P.L. Ganapathi Rao, hereinafter called the Lessors, which term shall wherever the context permits mean and include the said firm, its successors, administrators, executors and legal assigns on the First Part.
M/s. Poorna Financiers, a partnership firm, having its registered office at Ramarao Street, Gandhinagar, Vijayawada - 520003, represented by its Partner Sri G. Viswanath, hereinafter called the Lessees which term shall wherever the context permits mean and include the said firm, its successors, administrators, executors and legal assigns on the Other Part.
Whereas the Lessors have acquired the negative rights for distribution, exhibition and exploitation of the picture "Paramanandayya Sishyula Katha". In Telugu, 35 mm, Black & White, featuring Sri N.T. Ramarao, K.R. Vijaya, L. Vijayalaxmi, Nagaiah, Mukamala, Padmanabharn etc., directed by Sri C. Pullaiah and music by Sri Ghantasala, from the producers M/s. Sri Devi Productions, Tanuku, under the terms of the agreement dated 12.9.1974.
Whereas the Lessees approached the Lessors for granting to them the sole and exclusive leasehold rights for exhibition, exploitation and distribution of the said picture by way of yearly lease for a period of five years (5 years) i.e., from 1.12.1984 to 30.11.1989 for the area of Andhra Pradesh, including the erstwhile districts of Old Nizam State, before the State's reorganisation and Bellary and Raichur Districts now in Karnataka State, offering to pay yearly lease.
And whereas the Lessors hereto have agreed for the same on the terms and conditions set out hereunder:
1. The Lessors hereby grant and vest with the Lessees the sole and exclusive rights of exhibition, exploitation and distribution of the said picture "Paramanandayya Sishyula Katha" featuring Sri N.T. Ramarao, K.R. Vijaya, L. Vijayalaxmi, Nagaiah, Mukkamala, Padmanabharn etc., etc., directed by Sri Pullaiah and music by Sri Ghantasala, by way of yearly lease as provided in Clause No. 5.
2. The area covered under this agreement for which the above sole and exclusive leasehold rights have been granted by the Lessors shall be the area of Andhra Pradesh, including the erstwhile districts of Old Nizam State, before the State's reorganisation and Bellary and Raichur Districts now in Karnataka State.
3. In consideration of the Lessors vesting with the lessees the aforesaid leasehold rights of exhibition exploitation and distribution of the said. picture, the Lessees hereby agree to deposit a sum of Rs. 4,00,000 (Rupees Four Lakhs only) with the Lessors which amount shall not carry any interest and shall be adjusted towards the yearly lease of the said picture as provided in Clause No. 5.
4. The Lessees hereby agree to pay a sum of Rs. 4,00,000 (Rupees Four lakhs only), as per the details given hereunder.
Rs. 1,000-00 (Rupees One thousand only) paid today by way of
Indian Bank, Governorpet, Vijayawada - 2, Cheque
No. 048116 and the same is hereby Acknowledged
by the Lessors.
Rs. 1,99,000-00 (Rupees One Lakh ninety nine Thousand only)
payable to the Lessors during January, 1985.
Rs. 2,00,000-00 (Rupees Two Lakhs only) payable to the Lessors
during February, 1985.
Rs. 4,00,000-00 (Rupees Four lakhs only)TOTAL.
5. The Lessees hereby agree to pay to the Lessors, the yearly lease as detailed hereunder:
First Year Rs. 1,00,00000 1.2.1985
Second Year Rs. 90,000-00 1.2.1986
Third Year Rs. 0,00000 1.2.1987
Fourth Year Rs. 70,000-00 1.2.1988
Fifth year Rs. 60,000-00 1.2.1989
Rs. 4,00,000-00 Total
The Lessors are hereby authorised by the Lessees to adjust the above yearly lease amounts on the dates mentioned against them from the amount of Deposits already held by the Lessors as per Clause No. 3, supra.
6. The period of exhibition of the said picture under this agreement shall be Five years commencing from 1st December, 1984 to 30th November, 1989.
7. The Lessors hereby agree to write to the Laboratory for supplying them the required number of prints during the lease period, provided the Lessees pay the cost of raw positive, printing and processing charges.
8. The Lessees shall not release or caused to be released the said picture in any territory other than the territory granted to them. In case of default, the Lessors shall be entitled to claim damages from the Lessees. Likewise, the Lessors shall not release the said picture in the above said territory.
9. The Lessors hereby agree that the Lessees are entitled to exploit the said picture by themselves or grant exploitation rights in turn at their discretion without reference to the Lessors for any area within the time limit granted to the Lessees under this agreement, but, however, subject only to the terms and conditions of this agreement.
10. The Lessees shall not mutilate, alter, add or remove from the print/s of the said picture or duplicate or dub in any other language/s or portions or part at any time by themselves or through anybody.
11. After the expiry of the lease period the Lessees hereby agree to return all the prints and loan publicities in the then existing condition to the Lessors.
12. The Lessors hereby declare that they are fully entitled as owners of the picture to enter into this agreement and the rights of the picture dealt with under this agreement are absolutely free from any encumbrances to claim whatsoever.
13. If any dispute arising out of this agreement, the Courts at Vijayawada alone shall have jurisdiction to the exclusion of all other Courts.
In witness whereof the parties hereto have set their hands on the date, month and year above mentioned.
Ex. A-10 is the letter from Hyderabad Video Vision to the plaintiff. P.W. 1 deposed in detail about all the aspects. As against this evidence, the evidence of D.W. 1 and D.W. 2 is also available on record. Ex. B-1 is the agreement entered in between P. Subbarayudu and the 1st defendant relating to video rights of the picture Paramanandayya Sishula Katha and Bhuvana Sundari Katha, dated 7.12.1988. Ex. B-2 is dated 3.12.1988, the agreement entered in between Sridevi Production, Tanuku, regarding video cassette rights of Paramanandayya Sishula Katha. The evidence of DWs. 1 and 2 and Ex. B-1 and B-2 also had been dealt with in detail by the learned Judge and their stand had been specifically negatived, which had attained finality. It is no doubt true that by the date of the agreement-Ex. A-3, dated 12.9.1974, the Video Films were not in vogue and the same had been introduced by way of an amendment to the Copyright Act, 1957, in the year 1984, whereunder the Video Films also had been included under the definition of Cinematograph Film. Findings in detail had been recorded by the learned Judge and ultimately came to the conclusion that the plaintiff is the owner of the whole property inclusive of the subsequent scientific innovation, the video rights etc. In Balwinder Singh v. Delhi Administration , the Division bench of the Delhi High Court held that video and television both are cinematograph. Reliance also was placed on the decision of the Division Bench of the Madras High Court in Entertaining Enterprises v. State . In Laxmi Video Theatres v. State of Haryana , the Apex Court held as hereunder:
We are in agreement with this view. The definition of the expression 'Cinematograph' contained in Section 2(c) of the Cinematograph Act, 1952 and Section 2(a) of the Act is an inclusive definition which included any apparatus for representation of moving pictures or series of pictures. The said definition cannot be confined in its application to an apparatus for representation of moving pictures or series of pictures which was known on the date of the enactment of the said provision. It must be given a meaning which takes into account the subsequent scientific developments in the filed in accordance with principle of statutory construction laid down in The Senior Electric Inspector v. Laxmi Narayan Chopra . In that case it has been held-
...In a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless, a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.
The VCR/VCP were developed in 1970s and achieve the same purpose as the traditional media for exhibition of moving pictures. There is nothing in the Act which excludes the applicability of the Act to VCR/VCP.
The High Court was, therefore, right in holding that VCR/VCP are within the ambit of the definition of 'cinematograph' contained in Section 2(a) of the Act and the appellants in order to carry on the business of running video parlours/or showing pre-recorded cassettes of films through the medium of VCR/VCP must obtain a licence in accordance with the provisions of the Act and the Rules.
The main contention advanced by the Counsel for the appellant-plaintiff is that when the infringement of copyright had been established and findings had been recorded in relation thereto damages shall be presumed to have been incurred and on the ground that no acceptable evidence had been placed for the purpose of ascertainment of damages, the relief cannot be negatived. In New Hindustan Bank v. A.P. Transport AIR 1958 Punjab 348, while dealing with tortuous liability and damages, the learned Judge held as hereunder:
In this case, I feel certain in my mind, that a damage to the Bank has resulted on account of the wrongful acts of the sapurdar and the Company of which he is the Managing Director. In such a case a mere uncertainty as to the amount of damage and the difficulty in quantifying damage, in terms of money cannot preclude the right of recovery. This is certainly true, where from the nature of the case, the amount of damage is not capable of exact and accurate proof.
In this case, the vehicles were old. It is not possible to determine with certainly the pecuniary value of the missing parts or the monetary compensation resulting on account of delay in their disposal. Even where the tort is of such a nature so as to preclude the determination of the amount of damage with certainty, the Courts have to draw just and reasonable inference, although the deduction is based only on approximation.
In Associated Publishers v. K. Bashyam , the Division Bench of the Madras High Court while dealing with the infringement of Copyright under Copyright Act, 1911, and the claim for damages and the assessment thereof, observed:
The only question which remains is, what are the reliefs which the plaintiff is entitled to. As already mentioned, the plaintiff claimed four substantial reliefs besides costs, namely (1) the recovery of a sum of Rs. 10,000, as damages, (2) an account from the second defendant of all sums which he had made by the sale of the offending prints and a direction that both defendants do pay to him the sums so found, (3) delivery of unsold copies of the offending prints, and (4) an injunction restraining the defendants from further selling any copy of the offending prints. The learned Judge Balakrishna Aiyar J., granted to the plaintiff reliefs (1), (3) and (4) and refused to grant him the relief No. (2).
The plaintiff has not filed any appeal seeking this relief. Mr. Rajah Aiyarf conceded that if we find that the plaintiff had a copyright in M.O. 8 and M.O. 15 constituted an infringement of such copyright and the appellant had no valid defence, the plaintiff would undoubtedly be entitled to the reliefs of damages, delivery of the remaining copies of the infringing picture and an injunction. His only complaint was as regards the quantum of damages. The plaintiff claimed a sum of Rs. 10,000, and the learned Judge has awarded that sum as damages.
In view of the fact that the only claim for damages now subsisting is for an infringement of copyright, we do not think it necessary to deal at any length with much learning which was exhibited at the Bar on the construction of Sections 6 and 7 of the Copyright Act. Section 6(1) in general terms confers on the owner of the copyright the remedy by way of damages as may be conferred by the law for the infringement of a right. Copyright is a right of property and any injury caused to such right will give rise to a claim for damages. Section 7 deals with the remedies based on detenu and conversion.
It is two fold in its scope. In gives the right to the owner of the copyright to take proceedings for the recovery of the possession of all the infringing copies. It also confers on him a right to take proceedings in respect of the conversion of such copies. The foundation of the claim under Sections 6 and 7 respectively are fundamentally different. Damages under Section 6 are claimed for infringement of copyright which is an incorporeal right in property. If damages are claimed under Section 7, it is on the basis of conversion of goods, which are deemed to be the property of the plaintiff.
In the assessment of damages there should not be overlapping. The claims under Section 6 and Section 7 must be distinctly put forward in the plaint. Now it is obvious that the learned Judge has not awarded to the plaintiff any damages on the basis of conversion. There was a prayer for the delivery to the plaintiff of the unsold copies of the offending print and that was granted; but that could only be against the second defendant and Mr. Rajah Iyer does not object to it. It is nowhere alleged in the plaint that the first defendant was guilty of conversion.
If anyone was guilty it was the second defendant. Having regard to the reliefs claimed by the plaintiff and the decree granted by the learned trial Judge, it becomes irrelevant whether the remedies under Sections 6 and 7 of the Copyright Act are cumulative, or alternative remedies. The House of Lords, in Caxton Publishing Co. v. Sutherland Publishing Co. 1989 AC 178 confirming the decision in Sutherland Publishing Co. v. Caxton Publishing Co. 1986-1 Ch. 323, held that the remedies were cumulative. But it will be equally obvious that there should be no overlapping of the reliefs granted under each of these two Sections.
Reliance also was placed on the decision of the Division Bench in Raghubir Singh v. Secretary of State AIR 1938 Allahabad 445. Reliance was also placed on Constantine v. Imperial Hotels 1944 (2) All England Law Reports 171, where the defendants, who were innkeepers, refused without any just cause to accommodate the plaintiff, who was, however, accommodated at another hotel of which the defendants were the proprietors. The plaintiff brought this action for wrongful refusal to receive him as a guest but did not allege on claim any special damage:
Held:
(i) the action was maintainable without proof of special damage; but, in the circumstances of the case, the plaintiff was only entitled to nominal damages.
(ii) the fact that the plaintiff was received in another hotel in the same ownership was no defence, having regard to the circumstances in which he was refused admission to the first hotel.
Reliance was also placed on Reyston v. Minister of Pensions 1948 (1) All England Law Reports 778 and Colburn v. Simms (1843) 12 LJ CH 388. These decisions being decisions of Foreign Courts, may have only persuasive value and cannot be taken as binding precedents on this Court. In Commissioner of Income Tax, Madras v. A. Gajapathy Naidu AIR 1964 SC 1653, it was observed that reliance on English decisions delivered under circumstances peculiar to that country and on he construction of provisions which are not in pari materia with the provisions obtaining in India, may not be just. The same view was expressed in Lasa Din v. Gulab Kunwar AIR 1932 PC 207; Governor General in Council v. Municipal Council, Madura; and Hansraj v. Bejoy Lal Seal AIR 1930 PC 59. In Liverpool & London S.P. & 1 Association Ltd. v. M.V. Sea Success I and Anr. , the Apex Court while dealing with the binding nature of the foreign decisions held that the Supreme Court is not bound by foreign decisions and those are only of persuasive value, but, however, the Court can borrow the principles laid down in foreign decisions, if they are in consonance with Indian law keeping in view the changing global scenario.
11. The Division Bench of the Madras High Court, referred to supra, in Associated Publishers v. K. Bashyam (supra) had no doubt dealt with the aspect of infringement of the copyright and the claim of damages under the provisions of the Copyright Act, 1911. It is, no doubt, true that the appellant herein the plaintiff had not let in any clear evidence relating to the claim of damages of Rs. 1,00,000. The Trial Court recorded clear findings relating to the ownership of the copyright inclusive of the videos and also the infringement thereof committed by respondents-defendants 1 and 2. The stand taken by defendants 1 and 2 had been specifically negatived by the Trial Court. It is no doubt true that when damages are claimed, it would be always desirable that the party claiming damages should let-in acceptable evidence so as to enable the Court to arrive at a proper conclusion by estimating the damages and fixing the quantum of damages. In the light of the peculiar facts and circumstances, this Court is of the considered opinion that negativing the relief of damages in toto, without awarding any damages, whatsoever, on the ground that the same cannot be estimated would not be just and proper and hence, taking the overall facts and circumstances into consideration, this Court is of the considered opinion that in the light of the clear findings recorded by the Trial Court, which had attained finality relating to infringement, appellant-plaintiff is entitled for damages of Rs. 25,000.
12. Point No. 2:
It is, no doubt, true that the awarding of costs may be within the discretion of the Court. It is a case where the copyright had been infringed, however some evidence was let-in on behalf of the defendants as D.Ws. 1 and 2 and reliance was placed on Exs. B-1 and B-2 though the said stand taken by defendants 1 and 2 had been negatived. In the peculiar facts and circumstances, the Trial Court came to the conclusion that it is not a case to award costs. It is no doubt true that it would have been just and proper if some reasons had been recorded by the Trial Court by negativing costs, it is also true that normally costs would follow the event. But, however, in the light of the peculiar facts and circumstances inasmuch as the Trial Court exercised the discretion in negativing costs, this Court is not inclined to disturb the said finding, and accordingly the said finding is hereby confirmed.
13. Point No. 3:
In the light of the findings recorded above and in the facts and circumstances of the case, it is just and proper to award damages of Rs. 25,000 (Rs. Twenty five thousand only) with interest at 6% p.a., from the date of filing of the suit till the date of realization and further this Court directs the parties to bear their own costs in view of the peculiar facts and circumstances of the case.
14. Accordingly, the appeal is partly allowed to the extent indicated above without costs.