This Application Has Been Filed To Grant ... vs . on 20 June, 2012

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Madras High Court

This Application Has Been Filed To Grant ... vs . on 20 June, 2012

O.A.No.794 of 2008 This application has been filed to grant an order of interim injunction restraining the 2nd defendant / 2nd respondent, its men, agents, servants, distributors or anybody claiming through or under them from in any manner infringing the exclusive copy right of the plaintiff in respect of 12 suit pictures mentioned in the schedule anywhere in India.

2. A.No.4842 of 2008 This application has been filed by the second defendant to vacate the interim injunction granted against the applicant / 2nd respondent in O.A.No.794 of 2008 in C.S.No.697 of 2008 dated 25.07.2008 and dismiss the application No.3391 of 2008 in C.S.No.697 of 2008.

3. A.No.3391 of 2008 This application has been filed to appoint an Advocate Commissioner to seize the infringing all the master cassettes and the VCD / DVD cassettes of the suit pictures found anywhere in India.

4. The applicant in O.A.No.794 of 2008 and A.No.3391 of 2008 is the plaintiff and the respondents 1 & 2 are the defendants in the suit. The second defendant filed the application in A.No.4842 of 2008, to vacate the injunction already granted in O.A.No.794 of 2008, in which the respondents are the plaintiff and the first defendant respectively.

5. For convenience, the rank of the parties in the suit is referred infra.

6. Heard A.Chidambaram, learned counsel for the plaintiff and Mr.B.Manimaran, learned counsel for the first defendant and Mrs.Nalini Chidambaram, learned senior counsel appearing on behalf of M/s.C.Uma, learned counsel for the second defendant.

7. The learned counsel for the plaintiff would submit in his argument that the suit has been filed by the plaintiff in respect of 12 Tamil cinematographic films regarding the copy rights of VCD and DVD as detailed in the plaint and for permanent injunction against the second defendant in any way exploiting the same against the interest of the plaintiff. He would further submit in his arguments that out of the said 12 Tamil cinematographic films, the second defendant has not claiming any right in respect of item 8 to 12, but they are indulging in claiming right over items 1 to 7. He would further submit in his arguments that items 1 and 2 referred to in the plaint schedule viz., 1) Pathinaru Vayathiniley; and 2) Kizhakke Pogum Rayil were dealt with in a suit filed by the second defendant before the High Court of Delhi in C.S.No.1625 of 2007 and in respect of the said two films a prima facie case has been found in favour of the plaintiff, which was also made absolute in the appeal before the same Court and it became final. He would also submit that in respect of items 3 to 7, the plaintiff has got assignments of copy rights regarding VCD and DVD of those films from the producer, the first defendant himself and therefore, it cannot be assigned by the second defendant. He would also submit that he has produced the agreements, which were entered in the year 2001 in respect of those films assigned in favour of the plaintiff. He would also submit that the first defendant while he was in possession of the copy rights in respect of those films, namely, items 1 to 7, has filed a suit against the infringing parties., viz., P.Ganesan in C.S.No.782 of 2000 and obtained injunction in O.A.No.979 of 2000 on 19.02.2001 and in A.No.2609 of 2001 on 28.06.2001 and therefore, the right of the first defendant in respect of items 1 to 7 has been recognised by this Court and the said first defendant assigned those rights in favour of the plaintiff and the second defendant has no right to interfere with the plaintiff's right to exploit the copy right regarding VCD and DVD in respect of all 12 suit films. He would further submit in his arguments that the plaintiff has established a prima facie case and if the second defendant is interfering with the copy right of the plaintiff regarding VCD and DVD in respect of the suit 12 films, certainly it will make the plaintiff to sustain irreparable loss. He would therefore submit that the the balance of convenience is in favour of the plaintiff only and there could not be any prejudice caused to the second defendant, when he has no right to exploit the suit films. He would, therefore, request the Court that ad-interim injunction already granted by this Court may be made absolute and the application for injunction may be ordered accordingly.

8. The learned senior counsel Mrs.Nalini Chidambaram appearing on behalf of the second defendant would submit in her argument that the second defendant is not claiming any right over items 8 to 12 of the films and the dispute is only in respect of items 1 to 7. The first defendant company viz., Sree Amman Creations had transferred the copy right to one person and the second defendant has got the copy right from the said person in respect of items 1 to 7 and therefore, it cannot be said that the plaintiff alone has got the copy right in respect of items 1 to 7 films. The decision reached by the Delhi High Court in respect of items 1 and 2 films would not bind this Court. She would also submit in her argument that the finding of the Delhi High Court in I.A.Nos.10052 and 10722 of 2007 in C.S.No.1625 of 2007 will not be a res judicata for this Court and this Court can independently decide the right of the plaintiff over 12 suit films and come to a conclusion.

9. The learned senior counsel appearing on behalf of the second defendant would cite a judgment of the Hon'ble Apex Court reported in 2003 (8) SCC 204 (Punit Rai ..vs.. Dinesh Chaudhary) for the principle that the plaintiff has to prove his case and cannot depend upon the weakness of the case of other party. For the same principle, she has cited yet another judgment of the Hon'ble Apex Court reported in 1998 (4) SCC 539 (Punjab Urban Planning & Development Authority ..vs.. Shiv Saraswati Iron & Steel Re-rolling Mills). She would also submit in her argument that the finality reached in a judgment in an earlier case in between the same parties for the same cause of action only form res judicata and when admittedly, the suit is still pending before the Delhi High Court and no finality has been reached in respect of the proprietary right over the suit films and therefore, the finding reached by the Delhi High Court cannot be considered as a res judicata to the present issue. In support of her argument, she would rely upon a judgment of the Hon'ble Apex Court reported in 1998 (7) SCC 327 (K.Muthuswami Gounder ..vs.. N.Palaniappa Gounder). Therefore, she would submit in her arguments that the arguments advanced by the learned counsel for the plaintiff that the judgment of the Delhi High Court would bind the parties would not be available. She would also submit that the agreements produced by the plaintiff did not establish any prima facie case and the orders passed by the Delhi High Court cannot be helpful to the plaintiff to establish a prima facie case and in the said circumstances, the plaintiff failed in his attempt to prove a prima facie case. She would also submit that the documents produced by the plaintiff would not confer or assign any right in his favour, but the claim of the second defendant was only DVD rights and the claim made by the plaintiff was towards VCD rights and there is a vast difference in between VCD and DVD and therefore, there cannot be any injunction passed in favour of the plaintiff against the second defendant.

10. Therefore, The learned senior counsel appearing on behalf of the second defendant would request the Court that the injunction as sought for by the plaintiff may be refused and there cannot be any prejudice for the plaintiff, since he has not established any prima facie right over the suit films in respect of his alleged copy right in VCD and DVD and therefore, there cannot be any irreparable loss likely to cause to the plaintiff, if the injunction is not granted or the ad-interim injunction already granted is not ordered to be extended. She would further submit in her argument that the plaintiff having failed to establish a prima facie case in respect of items 1 to 7 is not entitled to get any order of injunction against the second defendant as sought for by him. She would also submit that ad-interim injunction already granted by this Court has to be necessarily vacated since it is working against the interest derived by the second defendant through the assignee, viz., West Top Investments India Private Limited, of the first defendant in respect of items 1 to 7 of the films. She would also submit that the second defendant would be put into heavy loss if an injunction is continued or made absolute and therefore, the injunction has to be vacated and the application for injunction has to be dismissed.

11. The learned counsel for the first defendant would submit in his argument that the agreement entered into between the first defendant and the West Top Investments India Private Limited, from whom the second defendant is stated to have obtained copy right was not in respect of any specific period and therefore, it would expire by five years under Section 19(5) of the Copy Rights Act and therefore, the agreement would lapse in the year 2005 and thereafter only the first defendant entered into an agreement in the year 2007 and therefore, the right claimed by the second defendant cannot be a better one than that of the plaintiff. He would further support the case of the plaintiff that the lab letters were given in favour of the plaintiff in respect of all the 12 films. Therefore, he would request the Court to grant injunction in favour of the plaintiff against the second defendant.

12. I have given anxious thoughts to the arguments advanced on either side.

13. The plaintiff has filed the suit for the following reliefs:-

i) for declaration that the plaintiff is the sole, exclusive and absolute owner of the limited copy rights in respect of VCD / DVD and Broadband rights of the 12 Tamil pictures mentioned in the suit schedule for the entire Indian Territories;

ii) for permanent injunction restraining the 2nd defendant herein or their men, agents, servants or distributors or anybody claiming through or under them from in any manner infringing the limited copy right of the plaintiff in respect of the 12 Tamil suit pictures mentioned in the schedule anywhere in India.

iii) directing the 2nd defendant to render true proper accounts in respect of the revenues earned by them out of the illegal marketing and distribution of the VCD / DVD of three pictures namely, 16 Vayathiniley and Kizhakke Pogum Rayil and Mahanadhi within the time to be fixed by this Hon'ble Court and to pay same to the plaintiff together with interest at the rate of 24% p.a. from the date of suit till the date of payment;

iv) to award costs of the suit; and

v) to grant further or other reliefs in favour of the plaintiff as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice.

14. Out of the claim of the plaintiff in respect of 12 Tamil cinematographic films as detailed in the plaint, the defendants have not disputed in respect of items 8 to 12. The second defendant is disputing the right of the plaintiff in respect of items 1 to 7 only. No doubt, the plaintiff who has come to Court for the relief of injunction has to establish a prima facie case. The judgment of the Hon'ble Apex Court reported in 1998 (4) SCC 539 (Punjab Urban Planning & Development Authority ..vs.. Shiv Saraswati Iron & Steel Re-rolling Mills) had laid down the said principle as follows:-

"10. ...... The plaintiff / appellant must succeed or fail on his own case and cannot take advantage of weakness in the defendant / respondent's case to get a decree."

15. A similar view has been expressed in a judgment of the Hon'ble Apex Court reported in 2003 (8) SCC 204 (Punit Rai ..vs.. Dinesh Chaudhary) as laid down in para - 15 would be as follows:-

"15. ....... The appellant, it was held, cannot be permitted to derive strength from the weakness of the case of the other party."

16. No doubt, it is clear that the settled principle would be that the plaintiff has to establish his own case on the pleadings made by him and cannot rely upon the weakness of other party in order to get a decree or to get an order. Therefore, we have to see whether the plaintiff has established a prima facie case for the grant of an order of injunction. The claim of the plaintiff would be that he has obtained the copy right of items 1 to 7 from the first defendant in the year 2001, who is competent to give the right in VCD and DVD also. In support of the first defendant's right over the said films, the plaintiff has produced a legal proceeding filed by the first defendant in C.S.No.782 of 2000 in which injunction orders were passed by this Court in O.A.No.979 of 2000 on 19.02.2001 and in A.No.2609 of 2001 dated 28.06.2001 in favour of the first defendant. The plaintiff has obtained the copy right of items 1 to 7 only from the first defendant. The agreements have been produced. Similarly, the second defendant is claiming right from one West Top Investments India Private Limited, who got the assignments of the right in items 1 to 7 of Tamil cinematographic films from the first defendant himself. Whether the said right is overriding the right which was got from the first defendant directly by the plaintiff is a question to be ascertained for deciding a prima facie case.

17. The plaintiff has produced an agreement entered into between the plaintiff and the first defendant in respect of items 1 to 7 films dated 06.07.2001. The assignment of VCD and DVD copy right has also been made on the same day, which are found in Pages 1 to 9 and 10 to 18 in the typed set, produced by the plaintiff. In both the agreements, I could see that the VCD and DVD copy rights for items 1 to 7 of the plaint schedule films were assigned to the plaintiff. Even though the second defendant had stated that he bought the copy rights from the West Top Investments India Private Limited, no such valid agreement has been produced by the second defendant had with the West Top Investments India Private Limited, who derived from the first defendant.

18. Apart from that, items 1 and 2 films out of items 1 to 7 were subjected to a suit filed by the second defendant before the High Court of Delhi in C.S.No.1625 of 2007. In the said suit, two applications have been filed by the second defendant herein for passing temporary injunction in respect of 66 Tamil cinematographic films in respect of the VCD and DVD rights claimed by the first defendant herein, in that suit. The High Court of Delhi had heard the arguments of both sides and passed an order on 21.02.2008 dismissing the said applications except for five films viz., 1) Karagattakaran 2) Puthiya Paravai 3) Ullam Ketkume 4) Meera; and 5) Villupaatukkaran. The suit films items 1 & 2 were also included in the said suit and the right claimed by the second defendant herein in that suit was negatived and temporary injunction was not granted against the plaintiff herein in that suit. I have also perused the said order produced in the typed set. However, the second defendant herein has preferred an appeal before the same court in F.A.O. (O.S). No.121 of 2008 and an order was passed by the Hon'ble Division Bench of the Court in the said suit on 14.03.2008 confirming the order of the learned single Judge made on 21.02.2008. However, liberty was given to the second defendant herein to prefer a Review of the order in refusing the injunction in respect of those films. However, the second defendant did not prefer any Review before the learned single Judge and the suit alone is now pending disposal before the said Court. Therefore, I could see that the order passed by the learned single Judge of the High Court of Delhi in I.A.Nos.10052 and 10722 of 2007 in C.S.No.1625 of 2007 on 21.12.2008 has became final subject to the trial of the suit.

19. According to the learned senior counsel appearing for the second defendant, unless an order became final, it cannot act as res judicata against an identical issue. Reliance was placed by the learned senior counsel on 1998 (7) SCC 327 (K.Muthuswami Gounder ..vs.. N.Palaniappa Gounder). The relevant passage would run as follows:-

12. ..... When the entire matter was still in appeal and any part of the finding could be varied by the appellate court, it is idle to contend that the same had become final. So also when the matter had not attained finality and was still in dispute, the principle of res judicata could not arise. In some cases, finding recorded at an earlier stage will operate as res judicata, if such finding had become final. ...

In the aforesaid judgment, it is very clearly laid down that until finality is reached, the order passed in an earlier suit will not act as res judicata in a subsequent suit. Rightly, in the earlier suit pending before the High Court of Delhi in C.S.No.1625 of 2007 the decision reached by the said Court in the Interlocutory Applications have become final, but they are subject to a decision to be reached in the Court, as the suit is pending. Therefore, the finding reached in the Interlocutory Application stage may not constitute as res judicata, to be considered in this application.

20. However the judgments of the Hon'ble Apex Court, as cited by the learned counsel for the plaintiff, would distinguish the doctrine of res judicata with the issue estoppel and cause of action estoppel. The principle laid down in the judgment of the Hon'ble Apex Court reported in 1999 (5) SCC 590 (Hope Plantations Ltd., ..vs.. Taluk Land Board, Peermade and another) would be as follows:-

"26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."

21. It has been reiterated in yet another judgment of the Hon'ble Apex Court reported in 2005 (1) SCC 787 (Bhanu Kumar Jain ..vs.. Archana Kumar and another) which would be as follows:-

"29. There is a distinction between "issue estoppel" and res judicata". (See Thoday v. Thoday)

30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz., estoppel by accord.

31. In a case of this nature, however, the doctrine of "issue estoppel" as also "cause of action estoppel" may arise. In Thoday, Lord Diplock held : (All ER p.352 B-D) " .... 'cause of action estoppel', is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If cause of action was determined to exist i.e., judgment was given on it, it is said to be merged in the judgment .... If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam"

32. The said dicta was followed in Barber v. Staffordshire County Council. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event, the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. (See C.(A Minor) v. Hackney London Borough Council)."

22. On a careful understanding of the dictum laid down by the Hon'ble Apex Court, I could see that there is no second thought that the res judicata would be attracted only if the lis has attained a finality in between the parties on the same issue. But the cause of action estoppel will arise where in two different proceedings, identical issues are raised in between the same parties and in which an event the later proceedings between the same parties shall be dealt with as similar as done in the previous proceedings.

23. In the present case, admittedly the case pending before this Court is for a similar claim in between the parties like that of a suit filed by the second defendant as plaintiff in C.S.No.1625 of 2007 before the High Court of Delhi. Item 1 and 2 of the suit Tamil cinematographic films are also the subject matter of the said suit except from other 8 (eight) Tamil cinematographic films, which are not subject matter of this suit. However, the copy right of the VCD and DVD in respect of the films subjected in this suit were dealt with in the suit in C.S.No.1625 of 2007 before the Delhi High Court. In the said suit, an application for injunction filed by the second defendant as applicant the right of the second defendant was negatived, however the right of the plaintiff herein, who was the first defendant in that suit was prima facie found to be better than that of the plaintiff therein (second defendant herein) and therefore, the injunction was refused in favour of the second defendant herein (plaintiff therein). The said finding of the learned single Judge was upheld by the Hon'ble Division Bench of the Delhi High Court in the appeal in F.A.O. (O.S). No.121 of 2008. However, the said prima facie finding has to be confirmed in a full fledged trial in the said suit. Therefore, the claim of res judicata cannot be applied in this case. As the cause of action and the parties are one and the same in respect of items 1 and 2 of the suit films, the subject here, certainly the cause of action estoppel would operate. As per the dictum laid down by the Hon'ble Apex Court what was dealt with in between the parties in an earlier proceedings, the same should be done similarly in the later proceedings and it would support the case of the plaintiff's herein. Only exception for the application of the principle is an allegation of fraud and collusion. As far as this case is concerned, there is no allegation of fraud or collusion in between the parties and therefore, this Court has to necessarily found with the prima facie case of the plaintiff as found by the Delhi High Court which is the previous proceedings had in between the same parties in C.S.No.1625 of 2007. Therefore, a prima facie case already found in favour of the plaintiff herein in the previous proceedings had before the Delhi High Court would support the production of the agreements executed in favour of the plaintiff in respect of the copy rights regarding VCDs and DVDs of the suit films and the plaintiff has come forward on his own strength to establish a prima facie case. Since the copy rights in respect of items 1 and 2, out of items 1 to 7 of the plaint films has been decided by the Delhi High Court and it is to be followed in this case since it is a subsequent proceeding in between the same parties as per the dictum laid down by the Hon'ble Apex Court, the prima facie case established through the production of agreements had in between the plaintiff and the first defendant would strengthen the prima facie case further in favour of the plaintiff. Therefore, I could see that the prima facie case established by the plaintiff in this application has not been shattered by the second defendant by disproving the case of the plaintiff.

24. The plaintiff has apprehended that the second defendant would indulge in manufacturing, circulating and selling the VCDs and DVDs of the suit films without any right and if he has done so, the copy right obtained by the plaintiff from the lawful owner would be defeated and the loss likely to have sustained could not be measured and it would be an irreparable loss, in the event no injunction has been granted or ad-interim injunction granted is vacated. No doubt, the manufacturing and selling of the VCDs and DVDs cannot be controlled nor measured except by way of the accounts produced by the second defendant, in case the Court is directing the second defendant to do so. In that event, no purpose will be served. It would be a colossal loss, which cannot be reclaimed by the plaintiff even through an order of Court has been issued to render accounts. Therefore, in the event of the injunction is not granted, the plaintiff is likely to sustain an irreparable loss which cannot be compensated. Per contra, if injunction is granted in favour of the plaintiff and the defendant succeeds in the suit, naturally the defendant can seek for damages. Therefore, I could see that the balance of convenience is only in favour of granting an order of injunction and it is in favour of the plaintiff. Therefore, I am of the considered view that ad-interim injunction already granted by this Court on 25.07.2008 which was extended until further orders on 14.10.2008 has to be made absolute by granting an order of temporary injunction till the disposal of the suit.

25. For the reasons held above, I am of the considered view that the plaintiff is entitled for temporary injunction as sought for against the second defendant till the disposal of the suit. Accordingly, the application in O.A.No.794 of 2008 is ordered. Consequently, the application in A.No.4842 of 2008, to vacate the interim injunction order, is dismissed. As regards the Application in A.No.3391 of 2008 for appointment of Advocate Commissioner, the same has to be disposed of along with the suit.

Mra										20.06.2012
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V.PERIYA KARUPPIAH, J.


Mra












O.A.No.794 of 2008
and
Applications No.4842 and 3391 of 2008
in
C.S.No.697 of 2008












20.06.2012

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