Bombay High Court
Maganlal Savani & Another vs Rupam Pictures (P) Ltd. & Others on 20 June, 2000
Equivalent citations: AIR2000BOM416, 2000(4)BOMCR400, (2000)3BOMLR48, 2001(2)MHLJ705, AIR 2000 BOMBAY 416, 2001 (1) COPYTR 69, (2000) 3 ALLMR 570 (BOM), (2001) 1 CIVILCOURTC 325, (2001) 2 MAH LJ 705, (2001) 3 RECCIVR 73, (2001) 3 CIVLJ 729, (2001) 1 CURCC 122, (2000) 4 BOM CR 400, 2000 (3) BOM LR 48, 2000 BOM LR 3 48
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
ORDER T.K. Chandrashekhara Das, J.
1. By consent notice of motion is made returnable forthwith. Heard both sides.
2. The suit is for the reliefs, inter alia to declare that the plaintiff No. 1 is having the sole exclusive and perpetual owner of copyright in respect of the suit film "Chupke Chupke" and is alone and solely and exclusively entitled to exploit and/or exhibit and/or broadcast the said film in any manner in any size/sizes throughout the contracted territories including over Television, Satellite Television, Cable Television etc. with some other ancillary prayers in the suit.
3. The notice of Motion is taken out by the plaintiff inter alia for an injunction restraining the defendants by themselves, or their servants and agents from in any manner representing that the defendants or any of them are entitled to exhibit and/or exploit and/or broadcast and/or distribute in any manner by any means the suit film "Chupke Chupke" in any size/sizes by any format and by any means over Television, Satellite Television or Cable Television etc.
4. It is an admitted position that by an agreement, defendant No. 1 who is the producer of the film "Chupke Chupke" entered into between the defendant No. 1 and the plaintiff No. 1 on 26th September 1973 assigned the sole and exclusive perpetual owner of copyright, exploitation, distribution and exhibition commercial as well as not in respect of the said picture in 35 m.m. as well as any other reduce size or sizes including the rights on Television and Satellite for a consideration of Rs. 9 lakhs. This right was assigned to the plaintiff No. 1 to operate barring the territories of India. Pakistan and Burma. Clause 6 of the agreement dictates the assignors (defendant No. 1) that the picture shall not be exploited or distributed or exhibited commercially or uncommercially or in any other manner in the contracted territories either by themselves or by their servants or agents or otherwise. That clause also indemnify the first plaintiff against such unauthorized distribution or exploitation of the said film. The allegation in the plaint is that notwithstanding this agreement the first defendant has assigned the right to exhibit the said film to a third party. The said picture is being telecasted to the area and territories assigned to the plaintiff by the defendant 2 and 3. With these allegations the plaintiff seeks an injunction.
5. The defendants contested the application and submitted that the telecasting of the picture through satellite was not assigned to the plaintiff. The Counsel appearing for them submits that infact in the year 1973 when the agreement was executed between the parties, this satellite television was not under the contemplation of the parties at all. Therefore the plaintiff No. 1 cannot object to any other party doing satellite telecast of the picture as it is not in the contracted territory. Prima facie the contention of the learned Counsel for the defendants that in 1973 the parties would never envisage that the picture should be given for satellite telecasting to the plaintiff No. 1, appears to be sound. But the rights which was assigned to the plaintiff No. 1 is to take the satellite telecasting or any other manner which may be able to do by the first plaintiff through scientific device or technology. In this context it is relevant to quote the relevant paragraph of the agreement.
The Assignors hereby agree and undertake that the said picture shall not be exploited or distributed or exhibited commercially, noncommercially or in any other manner whatsoever, in the contracted territory, either by themselves, their servants or agents or otherwise and hereby agree to indemnify and keep indemnified the Assignees against such unauthorised distribution or exploitation or exhibition of the said picture in the contracted territory. Any breach in this connection will make the Assignors liable to the damages which in no case shall be less than twice the amount of the price.
6. What is assigned to the first plaintiff is the exploitation, distribution and exhibition commercially or otherwise of the picture. In this context we have to give a wider meaning of the term "exploitation". Exploitation of a film takes in all the scientifical and technological device that may invent in future also and the plaintiff could make use of those inventions. Given such an interpretation of the word "exploitation" the objection raised by first plaintiff in conducting satellite telecasting of the picture "Chupke Chupke" will per se violative of the provisions of the agreement. The similar view has been taken by this Court in the context of interpreting similar contract in Notice of Motion No. 8663/99 dated 17th August 1999. I need not go into the details of that order because the matter has been taken in appeal before the Division Bench of this Court and Division Bench of this Court by order dated 10-1-2000 in Appeal No. 1246/99 upheld the order of the learned Single Judge and held that the exploitation is taking of the kind of exploit, including the internet, satellite telecast. It is profitable to quote the observation of the Division Bench.
"We find no infirmity in the prima facie opinion expressed by the learned Single Judge that the phrase all other rights attached to such exploitation cannot be read to mean that the other rights referred only to television rights and the Clause shows that the plaintiff is the sole, exclusive and perpetual copyright holder for exploitation of the films in question."
In view of this, I find that the agreement executed between the first plaintiff and the first, defendant will take in satellite telecast of the said film also.
7. Another objection that has been raised by the defendant in this case is that Court has no jurisdiction to entertain this suit as against defendant No. 3. According to the learned Counsel, the business is done in Singapore and the company is transacting its business in Singapore and therefore no part of cause of action arises to have the jurisdiction of this Court to entertain the suit. I cannot agree to this submission. The plaintiff approached this Court for violation of the provisions of the agreement executed between the first plaintiff and the first defendant in 1973. The contract executed is in Bombay and the violation may be done in Singapore by the party other than the party of the contract. Since the contract has executed in Bombay, the suit will lie in this Court in the event of its breach. Therefore this Court has ample jurisdiction to entertain this suit as part of the cause of action arises in Bombay. Therefore merely because the defendant No. 3 is impleaded and the action of the injunction order issued by this Court, that does not mean that this Court has no jurisdiction. Therefore I reject this contention also.
8. In view of the above. I also find that there is a violation of the provision of the Copyright Act. The learned Counsel for the plaintiff has argued that the agreement in question covers the definition of copyright occurring in section 2-FF and the violation of Copyright Acts also. Therefore granting of injunction is justified under section 55 of the Copyright Acts also.
9. In view of this, there shall be an order in terms of prayer Clause (b) and (c).
Prayer (b) :
That pending the hearing and final disposal of the suit, this Honourable Court be pleased to issue order and injunction against the defendants restraining the defendants by themselves their servants and agents from in any manner representing that the defendants or any of them are entitled to exhibit and/or exploit and/or broadcast and/or distribute and/or broadcast and/or allow exploitation and/or exhibition and/ or broadcast and/or distribution of the said film, "Chupke Chupke" by any means in all sizes over any format or otherwise however throughout the contracted territories including over television and/or satellite television and/or Cable Television and/or by DVD and/or by video or otherwise howsoever.
Prayer (c) :
that pending the hearing and final disposal of the suit, this Honourable Court be pleased to issue order of injunction against the defendants restraining the defendants by themselves, their servants and agents or otherwise howsoever from exploiting and/or distributing and/or exhibiting and/or broadcasting or allowing exploitation and/or broadcast in any manner by an means the suit film. "Chupke Chupke" in any sizes and by any format and by any means including over television and/or Satellite Television and/or Cable Television and/or over High Seas. Air and/or by DVD and/or video or otherwise howsoever and/or from committing any breach of the terms of the said agreement dated 26-9-1973 in respect of the said film, "Chupke Chupke" by directly and/or indirectly exhibiting and/or exploiting and/or broadcasting and/or distributing and/or causing it to be exhibited and/or exploited and/or broadcasted and/or distributed throughout the contracted territories or all or any part of the said film, "Chupke Chupke" in any manner format in any sizes whatsoever, including over television. High Seas, Air and Satellite and/or by D.V.D. and/or video and otherwise howsoever throughout contracted territories and also from selling, distributing and allowing to be sold or distributed the video cassettes, discs, tapes etc., of the said film, "Chupke Chupke" : throught the contracted territories.
Motion is accordingly disposed of.
P. A. to issue ordinary copy of this order authenticated by the Associate of this Court.