Delhi High Court
Entertainment Network India Ltd vs Super Cassettes Industries Ltd & Ors. on 11 May, 2011
Author: Sanjiv Khanna
Bench: Chief Justice, Sanjiv Khanna
$~35.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LETTERS PATENT APPEAL NO. 448/2011
Date of order: 11th May, 2011
ENTERTAINMENT NETWORK INDIA LTD...... Appellant
Through Dr. A.M. Singhvi & Mr. Sandeep
Sethi, Sr. Advocates with Ms. Pratibha
M. Singh, Ms. Archana Sachdeva & Mr.
Ashwin Kumar, Advocates.
versus
SUPER CASSETTES INDUSTRIES LTD & ORS.
..... Respondents
Through Mr. Amit Sibal, Mr. K.K. Khetan
& Mr. Sankalp Dalal, Advocates for
respondent No. 1.
Ms. Maneesha Dhir, Ms. Preeti Dalal &
Ms. Mithu Jain, Advocates for
respondent No. 2.
Mr. Sagar Chandra, Advocate for
respondent No. 3.
Mr. Neil Hildreth & Ms. Shruti Sabarwal,
Advocates for respondent No. 4.
Mr. K. Datta & Mr. Diggaj Pathak,
Advocates for respondent No. 5.
Mr. Abhishek Malhotra & Mr. Harsh
Vardhan Tripathi, Advocate for
respondent Nos. 6 and 7.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in the Digest ?
DIPAK MISRA, CJ.:
LETTERS PATENT APPEAL NO. 448/2011 Page 1 of 11
CM Nos. 9371-72/2011
Exemption applications are allowed, subject to all just
exceptions.
CM No. 9370/2011
This is an application for condonation of delay in preferring
the appeal and refilling of the same. Heard Dr. A.M. Singhvi and
Mr. Sandeep Sethi, learned senior counsel along with Ms.
Pratibha M. Singh, learned counsel for the appellant, Mr. Amit
Sibal, learned counsel for the respondent No. 1, Ms. Maneesha
Dhir, learned counsel for the respondent No. 2, Mr. Sagar
Chandra, learned counsel for the respondent No. 3, Mr. Neil
Hildreth, learned counsel for the respondent No. 4, Mr. K. Datta,
learned counsel for the respondent No. 5 and Mr. Abhishek
Malhotra, learned counsel for the respondent Nos. 6 and 7.
In this application for condonation of delay numerous
grounds have been urged for condoning the delay after
narrowing the factual chronology and what happened before the
Copyright Board. It is submitted that the subsequent events
have compelled the appellant to file the present appeal so that
there is no confusion or doubt. Mr. Amit Sibal, learned counsel
for the respondent No. 1 would seriously oppose the prayer for
LETTERS PATENT APPEAL NO. 448/2011 Page 2 of 11
condonation of delay on the foundation that the grounds urged in
the application are not justified for condonation of delay and,
therefore, the application should be thrown over board. Regard
being had to the assertions made in the application, the nature
of the lis involved, keeping in view the order passed by the
learned single Judge and the proceeding pending before the
Board, we are of the considered opinion that it is a fit case
where delay should be condoned and accordingly it is so
ordered.
The application is disposed of accordingly.
LPA No. 448/2011
In this intra-Court appeal, the challenge is to the orders
dated 15th September, 2010 and 19th January, 2011 passed by
the learned single Judge in CM No. 12373/2010 and CM No.
668/2011 in Writ Petition (Civil) No. 6255/2010 respectively. CM
No. 12373/2010 is still pending before the single Judge. To
appreciate the controversy, we may embark upon the factual
matrix in brief. The Copyright Board adjudicated a controversy
under Section 31 of the Copyright Act, 1957 between the
present appellant and M/s Phonographic Performance Limited,
etc. The order was passed on 25th August, 2010. Be it noted,
the said order is the subject matter of challenge in appeal before
LETTERS PATENT APPEAL NO. 448/2011 Page 3 of 11
the High Court of Madras. As the Madras High Court declined to
pass any order of stay, the Phonographic Performance Limited
and others preferred Special Leave to Appeal (Civil) No. 5727-
5735/2011 and the Apex Court by the order dated 5th April, 2011
did not interfere with the order of refusal of stay and directed the
High Court to dispose of the appeal within a specified period of
time. We have been apprised at the Bar the appeal is still
pending before the High Court of Madras.
2. The petitioner, namely, Super Cassettes Industries limited,
the respondent No. 1 herein, invoked the jurisdiction of this
Court in Writ Petition (Civil) No. 6255/2010 in substance and
with reference to the order dated 25th August, 2010 on
numerous grounds, including the ground that there has been
violation of the doctrine of audi alteram partem inasmuch as the
writ petitioner was not heard by the Copyright Board. Be it
noted, the writ petition was filed prior to the appeal was
preferred before the Madras High Court. Separate proceeding
under Section 31 of the Copyright Act are pending between the
appellant and the respondent No. 1. The learned single Judge
in CM No. 12373/2010 in W.P. (C) No. 6255/2010, while dealing
with the application for stay, in paragraph 12 has passed the
following directions:
LETTERS PATENT APPEAL NO. 448/2011 Page 4 of 11
"12. This Court directs that till the next date
of hearing, the impugned order dated 25th
August, 2010 passed by the Copyright Board
will not be relied upon by any of the
Respondents or any other party to insist on
the issuance of compulsory licence vis-à-vis
the copyright works of the Petitioner and for
the purpose of payment to the Petitioner
based on the rates as determined in the
impugned order. It is clarified that individual
complaints made to the Copyright Board
against the Petitioner that individual
complaints made to the Copyright Board
against the Petitioner about its unreasonable
refusal to grant licence will be dealt with
independently on merits by the Copyright
Board."
3. After the said order was passed, the appellant filed an
application for clarification forming the subject matter of CM No.
668/2011, which was refused.
4. After the said order was passed, the matter was taken up
before the Copyright Board and the Board by the order dated
25th January, 2011 passed the following order:
" Mr. Amit Sibal on behalf of Super
Cassettes Industries filed an application to
strike off/expunge portions of the affidavit of
Mr. Prashant Panday, PW1 of the
complainant. Alongwith this application the
applicant has also filed an Order dated 15th
September, 2010 of Hon'ble High Court of
Delhi in WP© 6255/2010 wherein the
Hon'ble High Court vide para 12 of the Order
directs that till the next date of hearing, the
impugned order dated 25th August, 2010
passed by the Copyright Board will not be
LETTERS PATENT APPEAL NO. 448/2011 Page 5 of 11
relied upon by any of the Respondents or
any other party to insist on the issuance of
compulsory license vis-à-vis the copyrighted
works of the Petitioner and for the purpose
of payment to the Petitioner based on the
rates as determined in the impugned Order.
It is clarified that individual complaints made
to the Copyright Bard against the Petitioner
about its unreasonable refusal to grant
license will be dealt with independently on
merits by the Copyright Board. The matter
was listed on 6th December, 2010.
The opportunity was given to the
Counsel of ENIL to file the reply. She made
a statement that in view of the fact that the
two witnesses on behalf of the Complainant
are present before the Board and she does
not want deferment of the cross-examination
of these witnesses, subject to the
Complainant's right to challenge the Order of
the Hon'ble Delhi Court, at present her client
does not rely upon the Order dated 25th
August, 2010 qua respondent herein without
prejudice to its rights and contentions. In
view of this she does not wish to file the
reply qua this relief with respect to reliance
on the Order dated 25th August, 2010.
When the recording of the Examination-in-
Chief of the witness Mr. Panday is done, she
will make suitable amendment to the affidavit
and will not tender the extracted portions
referred to in paragraph 8 of the
Respondent's application.
In so far as portions of the affidavit of
evidence of Mr. Prashant Panday that are
said in the application to be beyond the
pleadings, the Respondents applicant states
that his objections in that regard may be
decided during the stage of final arguments,
without prejudice to the Respondent's rights
and contentions in the application."
LETTERS PATENT APPEAL NO. 448/2011 Page 6 of 11
5. It is submitted by the learned counsel appearing for the
appellant that they will abide by the directions of stay issued by
the learned single Judge in paragraph 12, which we have
reproduced hereinabove, but the command in the said order is
being interpreted to mean that the order dated 25th August, 2010
passed by the Copyright Board cannot be relied upon before the
Copyright Board. It is submitted by the learned counsel for the
appellant that they have no objection to the resist and doubt on
the issuance of compulsory licence vis-à-vis the copyright works
of the respondent No. 1 or for the purpose of payment to the
respondent No. 1 based on the rates as determined in the order
dated 25th August, 2010, but when the lis is adjudicated before
the Copyright Board, they can always tender or cite a prior order
and state that under certain facts and circumstances an order
was passed. The value of the said decision may not be a
binding precedent on the Copyright Board but the analysis in the
order can be referred to.
6. Mr. Sibal would submit that the earlier order cannot be
treated as the precedent as the facts are not treated as
precedent in law. Learned counsel to buttress the said
contention has commended us to a decision of the Apex Court in
LETTERS PATENT APPEAL NO. 448/2011 Page 7 of 11
Prakash Chandra Pathak versus State of Uttar Pradesh, AIR
1960 SC 195, specially paragraph 8 whereby their Lordships
have observed:
"8. Learned counsel for the appellant cited
before us a number of reported decisions of
this Court bearing on the appreciation of
circumstantial evidence. We need not refer
to those authorities. It is enough to say that
decisions even of the highest court on
questions which are essentially questions of
fact, cannot be cited as precedents
governing the decision of other cases which
must rest in the ultimate analysis upon their
own particular facts. The general principles
governing appreciation of circumstantial
evidence are well established and beyond
doubt or controversy. The more difficult
question is one of applying those principles
to the facts and circumstances of a particular
case coming before the Court. That
question has to be determined by the Court
as and when it arises with reference to the
particular facts and circumstances of that
individual case. It is no use, therefore,
appealing to precedents in such matters. No
case on facts can be on all fours with those
of another. Therefore, it will serve no useful
purpose to decide this case with reference to
the decisions of this Court in previous cases.
We have to determine whether on the facts
and circumstances disclosed in the evidence
which has been accepted by the Courts
below; the crime charged against the
appellant has been made out. We have
carefully weighed the facts and
circumstances pro and con forcefully brought
to our notice by the learned counsel for the
appellant and, in our opinion, no grounds
have been made out for differing from the
conclusions arrived at by the courts below.
LETTERS PATENT APPEAL NO. 448/2011 Page 8 of 11
In our opinion, the facts and circumstances
proved in this case, establish the guilt of the
appellant beyond all reasonable doubt. The
appeal is accordingly dismissed."
7. It is enough to say that the decisions even of the highest
Court on questions which are essentially questions of fact,
cannot be cited as precedents for each case must rest in the
ultimate analysis upon their own particular facts. It needs
special emphasis to say every fact will lead to its own decision.
A decision rendered by a court of law or a tribunal is not to be
read as a statute. A singular fact here or there, thus can make a
gulf of difference. (see Goan Real Estate & Construction
Limited versus Union of India, (2010) 5 SCC 388).
8. We may be failing in our duty if we do not note the
submission of Mr. Sibal that the data, material, evidence or
anything that was ancillary and was referred to in the decision
dated 25th August, 2010, namely, ENIL versus PPL, cannot by
any stretch of imagination be applied to the pending appeal as
there is a difference in facts, data, evidence, material and many
other aspects. That apart, it is submitted that the rate of 2%,
which was applied by the Copyright Board, cannot be applied to
the respondent No. 1 as the Copyright Board is required to make
a fresh adjudication as per law independently on merits.
LETTERS PATENT APPEAL NO. 448/2011 Page 9 of 11
9. We need not enter into any debate or decide any cavil on
merits. What we intend to clarify is that assuming a factual
matrix is similar and other factors have some kind of similitude
(on which we make no comment), there cannot be an
interdiction with regard to a previous order passed by the
tribunal. What will be the value of that order has to be judged by
the tribunal. We hasten to clarify that it should not be treated as
a precedent, as if the hands of the tribunal are closed to render
a different decision. We may also clarify if there is dissimilarity
on facts, the verdict has to be dissimilar because factual matrix
invites a decision in law. Whether the facts are dissimilar or not
are left to the adjudicatory decision of the tribunal. It is further
added that citation of an order passed by an authority before a
legal forum is absolutely different than a precedent. We say no
more on this score as we expect the tribunal will be assisted by
the counsel, who shall argue on the legal position on the law
relating to precedent, etc.
10. The appeal is allowed to the extent indicated hereinabove.
11. Before parting with the case, we must note something
which has come to our notice. We have been apprised that the
Copyright Board has not yet been constituted. In view of the
aforesaid, we command the competent authority of the Union of
LETTERS PATENT APPEAL NO. 448/2011 Page 10 of 11
India to constitute the Copyright Board within a period of eight
weeks from the date of receipt of the copy of the order passed
today. Mr. A.S. Chandhiok, learned Additional Solicitor General
is requested to intimate the said authority.
Copy of this order be given dasti to the learned counsel for
the parties under signature of the Court Master.
CHIEF JUSTICE
SANJIV KHANNA, J.
MAY 11, 2011 VKR LETTERS PATENT APPEAL NO. 448/2011 Page 11 of 11