Bombay High Court
Brand David Communications Pvt. Ltd. ... vs Vivo Mobile India Pvt. Ltd. And Anr on 28 October, 2019
Author: N.J. Jamadar
Bench: N.J. Jamadar
1/5 comsl-1065-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
(IN ITS COMMERCIAL DIVISION)
COMMERCIAL SUIT (LODG.) NO. 1065 OF 2019
Brand David Communications Pvt. Ltd.
& Anr. .. Plaintiffs
Vs.
Vivo Mobile India Private Limited
& Anr. .. Defendants
None for plaintiffs.
Ms.Mahalaxmi Ganapathy i/b S. Venkateshwar for defendant No.1.
Mr. Rushabh Sheth i/b M.S. Bodhanwalla & Co. for defendant No.2.
CORAM : N.J. JAMADAR, J.
DATE : 28TH OCTOBER 2019
(VACATION COURT)
P.C.
1. Not on board. In view of urgency, mentioned.
2. Heard the learned counsel for the defendant No.1.
3. By order dated 15th October 2019, in Interim Application No. 1 of 2019, in Commercial Suit (Lodg.) No. 1065 of 2019, a Shraddha Talekar PS ::: Uploaded on - 28/10/2019 ::: Downloaded on - 29/10/2019 01:57:04 ::: 2/5 comsl-1065-2019.doc learned Single Judge of this Court had passed the following order :-
"21. After hearing the learned Counsels on this aspect, considering the circumstances and balancing the equities, I think it would be in the fitness of things if defendant No.1 is directed either to deposit in this Court a sum of Rs. 1,00,00,000/- (Rupees One Crore) and/or secure the same by giving a bank guarantee of any reputed bank till the hearing and final disposal of the Interim Application. This deposit and/or furnishing a bank guarantee shall be done within a period of two weeks from today. Needless to state that if the aforesaid deposit is not made or the bank guarantee is not furnished as required by the Prothonotary and Senior Master of this Court, there shall be an ad-interim injunction in terms of prayer clauses (a) and (b) which read thus :-
"(a) That pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to pass an order restraining the Defendants by themselves, their agents, servants, representatives, assigns and/or any persons claiming through and under the Defendants from using, broadcasting, exhibiting, telecasting, disseminating or communicating to the public in any manner whatsoever, the impugned Television Commercial (TVC)/Advertisement/Film of "Vivo V 17 Pro" mobile titled "Light up the night"
being Exhibit-1 hereto or any other TVC/Advertisement/film on television, digital and on any other platform and/or form of media and/or adaptation whatsoever, which is a reproduction and/or adaption of Plaintiffs' said work "Amusement Park" being Exhibit-H 2 hereto, so as to infringe Plaintiffs' copyright in its said work; and
(b) That pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to pass an order restraining the Defendants by themselves, Shraddha Talekar PS ::: Uploaded on - 28/10/2019 ::: Downloaded on - 29/10/2019 01:57:04 ::: 3/5 comsl-1065-2019.doc their agents, servants, representatives, assigns and/or any persons claiming through and under the Defendants from using, broadcasting, telecasting, disseminating or communicating to the public in any manner whatsoever, the impugned Television Commercial (TVC)/Advertisement/Film of "Vivo V17 Pro" mobile titled "Light up the night"
being Exhibit-I hereto or any other TVC/Advertisement/film, which is a reproduction and/or adaption of Plaintiffs' said work being Exhibit-H 2 hereto in relation to any event and/or award function or award entry, so as to infringe Plaintiffs' copyright in the said work"
22. Place the above Interim Application for hearing and final disposal on 22nd November, 2019 as per its turn"
4. The learned counsel for the defendant No.1 submits that in adherence to the aforesaid directions, the defendant No.1 had procured and tendered bank guarantee of Yes Bank, Gurgaon Branch for the sum of Rs.1 Crore. However, by an order dated 25 th October 2019, the Prothonotary and Senior Master declined to accept the said bank guarantee as it appeared that there were restrictive clauses, which were required to be corrected. The defendant No.1 was, thus, directed to furnish bank guarantee in the prescribed format of the High court as per the corrections suggested therein.
Shraddha Talekar PS
::: Uploaded on - 28/10/2019 ::: Downloaded on - 29/10/2019 01:57:04 :::
4/5 comsl-1065-2019.doc
5. The learned counsel for the defendant No.1 submits that the defendant No.1 is initiating steps to correct the bank guarantee to conform with the prescribed format, and to the satisfaction of the Prothonotary and Senior Master. However, the time stipulated by this Court by the order dated 15th October 2019, extracted above, expires on 29th October 2019. On account of Diwali Vacations, the Registry of this Court will not be open, except for urgent matters. The defendant No.1, therefore, seeks extension of time to furnish the requisite bank guarantee.
6. From the perusal of the aforesaid order dated 25 th October 2019, it becomes evident that in compliance with the order of this Court dated 15th October 2019, the defendant No.1 had, in fact, procured and tendered the bank guarantee, which was to be effective till 23rd April 2020. It seems that the Prothonotary and Senior Master was not persuaded to accept the said bank guarantee as its effect and operation was restricted upto 23rd April 2020.
7. The defendant No.1 has, thus, made earnest efforts to ensure the compliance of the aforesaid order of this Court and the request for the extension of time to furnish the bank guarantee to the Shraddha Talekar PS ::: Uploaded on - 28/10/2019 ::: Downloaded on - 29/10/2019 01:57:04 ::: 5/5 comsl-1065-2019.doc satisfaction of the Prothonotary and Senior Master, in the exigency of the situation, seems bonafide.
8. Hence, time to furnish the bank guarantee is extended by one week from 29th October 2019.
9. All concerned to act on an ordinary copy of this order duly authenticated by the Associate of this Court.
[ N.J. JAMADAR, J. ] Shraddha Talekar PS ::: Uploaded on - 28/10/2019 ::: Downloaded on - 29/10/2019 01:57:04 :::