Calcutta High Court
Saregama India Limited vs Whackedout Media Pvt. Ltd. & Anr on 19 January, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.112 of 2015
GA No.3903 of 2014
CS No.426 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SAREGAMA INDIA LIMITED
Versus
WHACKEDOUT MEDIA PVT. LTD. & ANR.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date: 19th January, 2015
Mr. Ranjan Bachawat, Sr. Adv. with
Mr. Debnath Ghosh, Adv.
Mr. Soumya Chowdhury, Adv.
Mr. Goutam Banerjee, Adv.
Ms. Nandini Khaitan, Adv.
..for the plaintiff
Mr. Tilak Bose, Sr. Adv. with
Mr. Subharish Sengupta, Adv.
Mr. Gourav Khaitan, Adv.
Mr. Piyush Changia, Adv.
Ms. Pritha Bera, Adv.
..for the defendant no.1
Mr. Rudraman Bhattacharya, Adv. with
Mr. Phiroze Edulyi, Adv.
Mr. Prithwiraj Sinha, Adv.
..for the defendant no.2
The defendant no.1 has filed an application for vacating of an
ex parte order passed on 22nd December, 2014. The main argument for
vacating of the interim order is that the plaintiff has not approached
this Court with clean hands and suppressed material documents, which
would have a bearing on merits of the issue. It is submitted that the
2
documents that are brought on record in the vacating application would
clearly establish that full facts have not been stated in the petition
although the plaintiff was aware of such facts. In the vacating
application, the applicant-respondent no.1 has disclosed few
agreements between the producers of various films and M/s. S. S. Communications wherein the producers/assignors claiming to be the World Negative Rights holder including Satellite, Video, DVD, VCD, Cable, Doordarshan, Pay TV, DTH, D.V.B.H., Internet and other rights holder of the films mentioned in appendix to the said assignment agreement, have assigned such rights in favour of the respondent no.1.
The learned Senior Counsel has emphasized that from the agreements it would appear that the assignors have assigned to the assignee the World Negative (Picture & Sound) Rights including the theatrical and commercial rights of distribution, exhibition and exploitation, performing rights and reproduction of the films from the picture and sound negatives of the films in original or video compact disc including other media and through internet and by reason of such rights being assigned to M/s. S. S. Communications and having regard to the fact that in or about 1st April, 2011 such rights were assigned in favour of the defendant no.1 by M/s. S. S. Communications which by the time had become S. S. Entertainments Pvt. Ltd., the defendant has exclusive right to exploit such songs by upload those songs to internet 3 and to exploit all rights in relation to such songs. It is submitted that the screen shots downloaded by the defendant no.2 would show that the plaintiff was aware that defendant no.1 pursuant to such agreement as early as on 31st January, 2013 when the name of the defendant no.1 has prominently appeared at the right hand top corner of such screen shots were uploading such songs in the internet and, accordingly, the plaintiff could not have moved this application ex parte without putting the defendant no.1 on notice. Since the interim order passed in this proceeding has vitally affected the valuable rights of the defendant no.1 under the agreement dated April 1, 20111 in exploiting such rights.
The learned Senior Counsel has referred to two communications dated 8th November, 2010 and 18th November, 2010 respectively to show that the plaintiff had due knowledge of assignment being made in favour of S. S. Entertainments Pvt. Ltd. by the respective producers of the films and it was incumbent upon the plaintiff to disclose such documents in order to enable the Court to form an opinion with regard to the claim made in the petition.
The learned Senior Advocate has referred the decisions reported in 2005 (30) PTC 279 (Bucyrus Europe Limited & Anr. versus Vulcan Industries Engineering Company Pvt. Ltd.), an unreported decision of a learned Single Judge in GA No.2721 of 2010 arising out of CS No.220 of 2010, (Kamal Kumar Bansal & Anr. versus Gautam Kundu & Ors.) and 4 a decision of the Hon'ble Supreme Court in Civil Appeal No.7174 of 2014 dated August 4, 2014 (Babu Lal versus Vijay Solvex Ltd.) to submit that inasmuch as S. S. Entertainments Pvt. Ltd. is a necessary party and the defendant no.1 has failed to disclose the documents which would have a bearing on the merits of the decision, the ex parte ad interim order needs to be vacated. It is emphasized that the law requires that a party claiming an ex parte ad interim order is required to bring all facts and not selective facts to the notice of the Court as the Court would be required to apply its mind to the entire gamut of facts and then take a conscious decision as to whether the Court should exercise its discretion in passing an ex parte ad interim order.
Mr. Ranjan Bachawat, learned Senior Advocate appearing on behalf of the plaintiff, submits that the agreement disclosed in the vacating application does not take the applicant anywhere and such agreements in any event cannot affect the right that has accrued and preserved in favour of the plaintiff by virtue of the agreement entered into between the plaintiff and the respective producers of the films. The learned Senior Advocate has referred to Clauses 8, 9, and 11 of each of the assignment agreement and argued that such agreements clearly recognizes the omnibus right given to the plaintiff to exploit the songs world wide by any arrangement. Few documents have been produced in Court to show that in terms of the agreement entered into between the 5 respective producers of the films and S. S. Entertainments Pvt. Ltd., royalties are being paid to S. S. Entertainments Pvt. Ltd. It is submitted that neither the producers nor the S. S. Entertainments Pvt. Ltd. has even refused to accept the said royalty. The learned Senior Advocate has drawn my attention to the agreement disclosed in the vacating application and more particularly Clause 6 (ii) being a clause referred to and relied upon by both the parties to show that M/s. S.S. Communications was aware of the existing rights of Gramophone India Pvt. Ltd. and royalties and revenues are being paid by the plaintiff and received by the M/s. S.S. Communications. It is submitted that the agreement annexed to the petition refers to the "films" to be used both commercial and non-commercial purposes and does not in any manner affect Clause 11 of the several agreements entered into between the plaintiff and the respective producers of the films. Mr. Bachawat has referred to a Division Bench decision of our High Court reported in 2011 (1) CHN 341 (Virji Shah & Ors. versus Nadiadwala Grandson Entertainment Ltd.) specifically paragraphs 47, 59 and 60 to submit that the agreement was entered into at a point of time when the internet was unknown but the parties have consciously preserved their rights to exploit it in every possible manner. The introduction of internet subsequently by reason of advancement of screen and technology does 6 not in any event affect the rights of the plaintiff to exploit the songs under the several agreements assigned between them.
On a query being put to the learned Senior Advocate as to whether royalty is being paid to S. S. Entertainments Pvt. Ltd. after the said company has undergone a change of name and is now known as Mango Mass Media Pvt. Ltd., it is submitted on instruction that royalties are being regularly forwarded to S. S. Entertainments Pvt. Ltd. and such cheques were never returned to the plaintiff. It is submitted that a learned Single Judge of this Court in a decision reported in AIR 1997 CAL 63 (Gramophone Company of India Limited versus Shanti Films Corporation and Ors.), held that the payment of royalty may not be relevant factor in considering the claim of the plaintiff. However, I am unable to read the judgment in the manner in which Mr. Bachawat would like to me read. It is a reiteration of Section 19 of the Copy Right Act, 1957 and in the facts and circumstances of the case His Lordship was prima facie satisfied that a case has been made out to pass an interim order.
When a plaintiff approaches a Court, the plaintiff is required to state the full facts. There cannot be a doubt that the plaintiff was aware of the agreement dated 21st October, 2007 entered into between the plaintiff and S. S. Communications. In fact, the positive case of the plaintiff is that the plaintiff is paying the royalties to S.S. 7 Communications. In the plaint and the petition, however, there is no mention of S.S. Communications. Plaint and the petition proceeded on the basis that the petitioner is the owner of the copy right of the sound recording and underlying musical and literary works of the said songs exclusively to the exclusion of all others. It is stated that the respondents do not have any right to exploit, adopt, synchronize, publish to the public in any manner whether in physical or non- physical form of the sound recordings and underlying musical and literary works of the petitioners songs without the consent and approval and or licence of the petitioner. The respondent no.1 on the basis of an agreement entered into between the S. S. Entertainments Pvt. Ltd. and the defendant no.1 until this injunction order was passed appears to have been exploiting the songs. The agreement records that the defendant no.1 would be shared 80% of the net actuals from the revenues generated and payments are cleared in sixty days from the date of the receipt of the revenues.
In deciding an application for vacating or an interim order on the ground of suppression of facts, the Court is not required embark on interpretation of agreements. It is on prima facie satisfaction of the Court that the agreements between the plaintiff and the respective producers of the films have given the plaintiff to exploit these songs in the most comprehensive manner. This right is preserved. Even the 8 agreements which the defendant no.1 has disclosed in this petition would prima facie show that rights related to films only have been assigned to S. S. Entertainments Pvt. Ltd. The right of Gramophone India Pvt. Ltd. to exploit the songs and pay the royalties have been preserved. The Clause 5 of the agreement disclosed by the defendant no.1 reads: "The Rights assigned by the assignors to the assignees under this Agreement of the said FILMS are meant for both commercial and non-commercial purposes." It specifically excludes the rights already assigned to the defendant no.1. The said agreement in Clause 6(ii) refers to The Gramophone Company of India (H.M.V.) from whom S. S. Communications would collect royalties under the existing arrangements. Although the plaintiff is required to state all the facts in the petition but in my view the cause of action is founded on an unauthorized exploitation of rights by the defendant no.1 of the songs in respect whereof the plaintiff claims to be an assignee that agreement appears to be subsisting. The vacating application does not disclose any document to show that the agreements entered into between the plaintiff and the respective producers of the films have lapsed or terminated.
In such circumstances, this Court is of the view that the application filed by the defendant for vacating of the interim order on 9 the ground of suppression of facts is not maintainable and the said application, being GA No.112 of 2015, is dismissed.
In view of the dismissal of GA No.112 of 2015, the interim order passed on 22nd December, 2014 shall continue for a period of eight weeks from date or until further order which ever is earlier.
Affidavit in opposition shall be filed within two weeks from date, reply thereto, if any, within a week thereafter. The matter shall appear under the heading "Adjourned Motion" four weeks hence.
In so far as one song is concerned, the plaintiff shall provide URL to You Tube, defendant no.2 in order to enable You Tube to comply with the order of 22nd December, 2014.
Urgent certified website copy of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SOUMEN SEN, J.) AKGoswami