Delhi High Court - Orders
Mr. John Hart Jr & Anr vs Mr. Mukul Deora on 15 February, 2021
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 38/2021 & I.A. 2185/2021, I.A. 2184/2021, I.A.
2251/2021, I.A. 2187/2021
MR. JOHN HART JR & ANR. ..... Plaintiffs
Through: Ms. Sonia Mudbhaktal, Plaintiff
No.2 in person
versus
MR. MUKUL DEORA ..... Defendant
Through: Mr. Sandeep Sethi, Sr.
Advocate with Mr. Sanjay Gupta, Mr. Ajay
Monga, Ms. Varsha Kriplani, Ms. Jagriti
Ahuja, Mr. Ateev Mathur, Ms. Stuti and Mr.
A. Sharma, Advs. for D-1,4,5,6 & 7
Ms. Savni D. Endlaw, Adv. for D-2,3, 8 & 9
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 15.02.2021
(Video-Conferencing)
I.A. 2184/2021(for correction of order dated 21-01-2021)
1. This application, at the instance of Defendant Nos. 1 and 4 to 7, seeks a correction in the order dated 21st January, 2021, passed by me in IA 1167/2021 in CS(COMM) 38/2021. The correction sought is in para 12 of the said order.
2. Para 12, as contained in the order dated 21st January, 2021, reads thus:
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 38/2021 Page 1 of 9 Signing Date:18.02.2021 10:24:21"12. Mr. Sethi also submits that Mr. Sankhla has only portrayed one side of the story. He submits that, on receipt of the legal notice, dated 4th October, 2019, addressed by Plaintiff No. 2 to the defendants, the defendants responded on 11th October, 2019, denying the assertions, of Plaintiff No. 1, that he was the sole and exclusive copyright holder, entitled to film "The White Tiger". According to Mr. Sandeep Sethi, there was a subsequent assignment of the right to film the novel by way of an agreement dated 30th August, 2013, between certain companies of Plaintiff No. 1's subsidiaries and M/s Particle Media Pvt. Ltd (hereinafter referred to as "PMPL"), which was a company of Defendant No. 1. He further submits that a legal dispute had been raised, by Plaintiff No. 2, in January, 2014, regarding the rights to film "The White Tiger", which resulted in a settlement vide agreement dated 3rd January, 2014 between the Plaintiff No. 2 and M/s Particle Media Pvt. Ltd., whereunder ₹ 53 lakhs was paid to Plaintiff No. 2, consequent to which Plaintiff No. 2 waived all claims against PMPL qua "The White Tiger" and the present project. Mr. Sethi submits that all these documents have been concealed by the plaintiffs and that, based on a one-sided story put forth in the plaint, no injunction can be granted in the plaintiffs' favour."
(Emphasis supplied)
3. Mr. Sandeep Sethi, learned Senior Counsel appearing for Defendant Nos. 1 and 4 to 7, points out that the submission (italicized in the extract), recorded in the aforesaid paragraph from the order dated 21st January, 2021, to the effect that M/s Particle Media Pvt. Ltd. (PMPL) was a company of Defendant No.1, is not correct and, in fact, it is a company of one Raj Lakhani, with which M/s Lava Media Private Limited, a company of Defendant No. 1, had entered into an agreement, on the basis whereof they proceeded to produce a film based on "The White Tiger", which forms subject of controversy in the present case. He, therefore, seeks a correction of his submission, as recorded in para 12 supra, to the order dated 21st January, 2021.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 38/2021 Page 2 of 9 Signing Date:18.02.2021 10:24:21Allowing the prayer would result, effectively, in replacing the sentence "According to Mr. Sandeep Sethi, there was a subsequent assignment of the right to film the novel by way of an agreement dated 30th August, 2013, between certain companies of Plaintiff No. 1's subsidiaries and M/s Particle Media Pvt. Ltd (hereinafter referred to as "PMPL"), which was a company of Defendant No. 1", with "According to Mr. Sandeep Sethi, there was a subsequent assignment of the right to film the novel by way of an agreement dated 30th August, 2013, between certain companies of Plaintiff No. 1's subsidiaries and M/s Particle Media Pvt. Ltd (hereinafter referred to as "PMPL"), with which M/s Lava Media Pvt. Ltd., a company of Defendant No. 1, had entered into a contract, enabling it to film "the White Tiger". Mr Sethi agrees that this is the change sought by him.
4. Ms. Sonia Mudbhaktal, Plaintiff No. 2 who appears in person, seriously opposes the prayer of Ms. Sandeep Sethi. She advanced detailed arguments which, frankly, appear mildly contradictory. On the one hand, she contended that the statement made by Mr. Sandeep Sethi in para 12 of the order 21st January, 2021, as recorded, was in fact the truth and that PMPL was the company of Defendant No. 1, albeit benami. At the same time, she also contends that, if Mr. Sandeep Sethi's submission that Lava Media Pvt. Ltd. was the company of Defendant No. 1 and had entered into an agreement with PMPL, were to be accepted, this Court would not have granted ad interim injunction on 21st January, 2021. She has also invited my attention to certain documents which, according to her, proved the fact that PMPL was in fact the benami company of Defendant No.1. She, Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 38/2021 Page 3 of 9 Signing Date:18.02.2021 10:24:21 therefore, submits that Mr. Sandeep Sethi is, in fact, seeking to replace truth with untruth and that, had this submission been made on 21st January, 2021, the plaintiffs would have been granted an injunction against release of the film "The White Tiger". Having, therefore, successfully opposed the grant of injunction by stating that Defendant No.1 was the owner of PMPL, she submits that the applicants cannot be allowed to resile from the said statement.
5. In my view, the issue of whether Defendant No.1 was, or was not, the owner of PMPL, whether benami or otherwise, has nothing to do with deciding this application. This application merely seeks to clarify the contention which was advanced by learned Senior Counsel before this Court on 21st January, 2021. On the said date, the contention of learned Senior Counsel, as advanced, was that the right to film "The White Tiger" had been assigned to PMPL, which was a company of Defendant No.1. Today, Mr. Sandeep Sethi seeks to correct the contention, advanced by him on behalf of his clients, to the effect that PMPL was not the company of Defendant No. 1 but that PMPL had further transferred the right to film "the White Tiger" to M/s Lava Media Pvt. Ltd., which was the company of Defendant No. 1 and which had, accordingly, produced the film.
6. It is the prerogative of Counsel to urge contentions as they deem appropriate. Mr Sethi is not seeking to submit that this Court wrongly recorded the contention advanced by him on 21st January, 2021. He submits that, owing to the haste with which he had to be briefed, he inadvertently advanced a contention which was not entirely factually Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 38/2021 Page 4 of 9 Signing Date:18.02.2021 10:24:21 correct. He seeks correction, so that a factually incorrect statement is not attributed to him.
7. In such a situation, this Court, while examining the request, is not required to go into whether the contention was, in fact, right or wrong, correct or incorrect. If accepting the change, in the contention advanced by Counsel, would alter the outcome of the order (as Ms Mudbhatkal submits it would), then the Court may legitimately decline the request. Else, in my view, the Court has to defer to the right of Counsel to urge contentions as they choose. The right to urge a contention cannot be made dependent on the correctness of the contention sought to be urged.
8. Ergo, I proceed to examine the merits of the contention, of Ms Mudbhatkal, that, had the contention of Mr Sethi been as he would have it recorded now, the prayer for interim injunction, of the plaintiff, would have succeeded. If this is, in fact, the position, the request, of Ms Mudbhatkal, that the prayer for correction of the order be rejected, unquestionably has merit.
9. It is apparent that the prayer for ad interim relief was declined for the following reasons:
(i) There was no justification for plaintiff approaching this Court less than 24 hours prior to the release of the subject film, having been aware of the possibility of such release as far back as on 4th October, 2019.
(ii) Paras 27 to 42 of the plaint clearly revealed that Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 38/2021 Page 5 of 9 Signing Date:18.02.2021 10:24:21 Defendant No. 1 was not a stranger to the entire transaction and that the agreements and other documents referred to in the said paragraphs of the plaint did not allow this Court to return even a prima facie finding that the defendants had, in producing and releasing the film, infringed the copyright of the plaintiffs.
(iii) There was no evidence of irreversible prejudice to the plaintiffs, were injunction not to be granted.
(iv) As the plaintiffs could adequately be compensated with costs/damages, no case for granting of injunction existed.
10. None of these considerations would be altered, were the present application to be allowed.
11. I had, while refusing granting injunction, not examined the issue of whether Defendant No. 1 was, or was not, the owner of PMPL. As such, it cannot be said that, had the contention of Mr. Sandeep Sethi, on 21st January, 2021, been that Defendant No.1 was the owner of Lava Mobile Pvt. Ltd. which had entered into an agreement with PMPL, no injunction would have been granted.
12. The change that the application would seek, in the order dated 21st January, 2021, therefore, does not alter, in any manner, the outcome of the said order. As the change requested is only with respect to the contention of learned Senior Counsel advanced on the said date, I see no justification to refuse the request. It is for a counsel to decide on the contention to be advanced by him.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 38/2021 Page 6 of 9 Signing Date:18.02.2021 10:24:2113. If, on the basis of the altered contention, as proposed in the present application, the outcome of the order would have changed, I might have considered the submission of Ms. Sonia Mudbhaktal. As it is, I do not find that the said contention in any way alters the outcome of the order dated 21st January, 2021.
14. Needless to say, in allowing the prayer in this application, this Court is not expressing any opinion, one way or the other, as to whether Defendant No.1 was the owner of PMPL, benami or otherwise, or was the owner of Lava Media Pvt. Ltd., which had entered into an agreement with PMPL. All these aspects are left wide open, to be agitated during the course of trial when the matter is finally decided.
15. Mr. Sandeep Sethi, learned counsel appearing for the Defendant Nos. 1 and 4 to 7, i.e. the applicants in this present application, also submitted that the plaintiffs capitalizing on the aforesaid erroneous contention, has sought to activate the Enforcement Directorate and other authorities to take punitive action against his client. I am not concerned with that aspect of the matter.
16. Suffice it to state that the contentions of Ms. Sonia Mudbhaktal do not make out any case for refusing the prayer in this application.
17. In view of the above, para 12 in the order dated 20th January, 2021 would stand changed to read thus:
"12. Mr. Sethi also submits that Mr. Sankhla has only Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 38/2021 Page 7 of 9 Signing Date:18.02.2021 10:24:21 portrayed one side of the story. He submits that, on receipt of the legal notice, dated 4th October, 2019, addressed by Plaintiff No. 2 to the defendants, the defendants responded on 11th October, 2019, denying the assertions, of Plaintiff No. 1, that he was the sole and exclusive copyright holder, entitled to film "The White Tiger". According to Mr. Sandeep Sethi, there was a subsequent assignment of the right to film the novel by way of an agreement dated 30th August, 2013, between certain companies of Plaintiff No. 1's subsidiaries and M/s Particle Media Pvt. Ltd (hereinafter referred to as "PMPL"), with which M/s Lava Media Pvt. Ltd., a company of Defendant No. 1, had entered into a contract, enabling them to film "the White Tiger". He further submits that a legal dispute had been raised, by Plaintiff No. 2, in January, 2014, regarding the rights to film "The White Tiger", which resulted in a settlement vide agreement dated 3rd January, 2014 between the Plaintiff No. 2 and M/s Particle Media Pvt. Ltd., whereunder ₹ 53 lakhs was paid to Plaintiff No. 2, consequent to which Plaintiff No. 2 waived all claims against PMPL qua "The White Tiger" and the present project. Mr. Sethi submits that all these documents have been concealed by the plaintiffs and that, based on a one-sided story put forth in the plaint, no injunction can be granted in the plaintiffs' favour.
18. The application stands allowed accordingly.
I.A. 2251/2021 and I.A. 2187/2021
1. Issue notice, returnable on 3rd May, 2021.
2. Notice is accepted by Ms. Sonia Mudbhaktal, Plaintiff No. 2.
3. Let notice be issued to Plaintiff No. 1 by ordinary process. Response, if any, be filed within four weeks, with advance copy to learned counsel for the applicants/Defendant Nos. 1 and 4 to 7, who may file rejoinder thereto, if any, within two weeks thereof.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 38/2021 Page 8 of 9 Signing Date:18.02.2021 10:24:21IA 2185/2021 in CS(COMM) 38/2021 At the request of Ms. Sonia Mudbhaktal, the period of four weeks granted to the plaintiffs to file response to IA 2185/2021, filed by Defendant Nos. 1 and 4 to 7 under Order VII Rule 11 CPC, would stand reckoned from today.
C. HARI SHANKAR, J FEBRUARY 15, 2021 dsn Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 38/2021 Page 9 of 9 Signing Date:18.02.2021 10:24:21