Madras High Court
M/S.Sun Tv Network Ltd vs M/S.Winner Bulls Films on 18 June, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
C.S. No.569 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.06.2024
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
C.S. No.569 of 2014
M/s.Sun TV Network Ltd.
Represented by its Authorised Signatory
Mr.M.Jyothi Basu
Murasoli Maran Towers
73, MRC Nagar Main Road
MRC Nagar, Chennai - 28 ... Plaintiff
Vs.
1.M/s.Winner Bulls Films
Represented by its Partner
Mr.C.Viswanathan
Koral International
15, Nethaji Nagar, 6th Street
Uthakuli Road, Karumarampalayam,
Mannarai, Tiruppur-641 607
2. M/s.Inflight Productions Limited
1-10-76, Fair Fields, Begumpet,
Hyderabad - 500 016
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C.S. No.569 of 2014
3. AP International
Represented by its Partner
Mr.Sanjay A.Wadhwa
Old No.80, New No.42, New Avadi Road
Kilpauk, Chennia - 600 010 ... Defendants
Prayer: The plaint is filed under Order IV Rule 1 of Original Side
Rules read with Sections 55 and 62 of the Copy Rights Act, 1957 and
Order VII Rule 1 of Code of Civil Procedure, praying to pass judgment
and decree against the defendants on the following terms:
a. Declaration that the plaintiff is the sole and
exclusive copyright holder for broadcasting the tamil
film "NERAM" starring Nivin Pauly, Nasria Nazim,
Nassar, Simha & others through Satellite Television
Broadcast, Direct to Home Broadcast, direct Satellite
Service, Internet, Video streaming through all forms,
I.P. TV, Broadband, Telephone, Telephony, Mobile
Phone Cell phone, Radio (all dimensions) VCD, DVD,
Video on Demand, Movie on Demand, Video, High
definition (HD), Laser Disc, Blue Ray, U-Matic,
Inflight, Airborne, Railborne, Terrestrial Television
Broadcast (all dimensions), through Cable/via Cable
TV, Local Delivery System, MMDS, Seaborne, all
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C.S. No.569 of 2014
modes of public/private transportation, Public Service
Broadcasting, Private Communication/Broadcast,
Wire, Wireless, 2D & 3D formats/Dimensions of the
film or any other formats/Dimentsions which may be
in existence now or invented in 4 future or through any
other forms, means and modes and any forms of
communication like signs, signals, writing, pictures,
images and sounds of all kinds of transmission of
electro magnetic waves through space or through
cables intended to be received by the general public
either directly or indirectly through the medium of
relay stations and all its grammatical variations and
cognate expressions shall be construed accordingly or
any other systems without restriction of geographical
area and including all channels of Doordarshan, for a
perpetual period of 99 years.
(b) Permanent injunction restraining the
Defendants, their men, representatives, agents and
anybody on behalf of the Defendants from in anyway
exhibiting or exploiting the Tamil film "NERAM"
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C.S. No.569 of 2014
starring Nivin Pauly, Nasria Nazim, Nassar, Simha &
others thorough Satellite Television Broadcast, Direct
to Home Broadcast, direct Satellite Service, Internet,
Video streaming through all forms, I.P. TV,
Broadband, Telephone, Telephony, Mobile Phone, Cell
phone, Radio (all dimensions) VCD, DVD, Video on
Demand, Movie on Demand, Video, High definition
(HD), Laser Disc, Blue Ray, U-Matic, Inflight,
Airborne, Railborne, Terrestrial Television Broadcast
(all dimensions), through Cable/via Cable TV, Local
Delivery System, MMDS, Seaborne, all modes of
public/private transportation, Public Service
Broadcasting, Private Communication/Broadcast,
wire, wireless, 2D & 3D formats/Dimensions of the
film or any other formats/Dimensions which may be in
existence now or invented in future or through any
other forms, means and modes and any forms of
communication like signs, signals, writing, pictures,
images and sounds of all kinds of transmission of
electro magnetic waves through space or through
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C.S. No.569 of 2014
cables intended to be received by the general public
either directly or indirectly through the medium of
relay stations and all its grammatical variations and
cognate expressions shall be construed accordingly or
any other systems without restriction of geographical
area and including all channels of Doordarshan
throughout the world for a period of 99 years at any
part of the world.
c. to pay cost.
For Plaintiff : Mr.Rahul Balaji
rd
For 3 Defendant : Mr.K.Harishankar
Defendants 1 and 2 : Set ex-parte on 29.08.2018
JUDGMENT
This suit is filed for declaration that the plaintiff is the sole and exclusive copyright holder for broadcasting the tamil film "NERAM" for a perpetual period of 99 years; permanent injunction restraining the defendants, their men, representatives, agents and anybody on behalf of the defendants from in any way exhibiting or exploiting the Tamil film 5/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 "NERAM" throughout the world for a period of 99 years at any part of the world and to pay costs.
2. The brief averments made in the plaint are that the plaintiff/M/s.Sun TV Network Ltd. is a leading Television Network in South India. Sun TV is one of its channels and is the No.1 channel in Tamil Nadu, when it comes to viewership. Apart from this, the plaintiff runs other channels in Tamil, viz., KTV, Sun Music, Sun News, Adithya TV, Chutti TV, which are all leading channels in their respective fields. The plaintiff is in business for several years and has received several competitive awards and enjoys high reputation amongst the viewers. The plaintiff/company is also involved in the production and distribution of movies and in this field also, it has earned great reputation and emerged as one of the best.
2.1. Apart from their business of satellite television network and production and distribution of movies, it is also airing FM radio station which is also rated as the best among its listeners. The plaintiff is running 6/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 and involving themselves in various business activities and is never involved in any controversies and are carrying on their business sincerely, legally and without any adversity and blemishes. The plaintiff because of their commendable performance have earned a very good reputation and respect among people of all walks of life and they are placed in a very high esteem in the midst of right thinking people of the society.
2.2. In the course of its business, it would also enter into assignment agreement to take assignment of copyright for the films for Terrestrial Television Broadcast and Satellite Television Broadcast rights and other broadcasting rights including the exhibition of films by means of wireless diffusion and by wire for communication of the public.
2.3. The 1st defendant is the producer and exclusive copyright holder of the cinematography tamil film "NERAM" (for brevity "the suit film") starring Nivin Pauly, Nasria Nazim, Nassar, Simha & others. The 1st defendant by way of agreement dated 13.05.2013 assigned the copyright 7/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 for the said film in favour of the plaintiff for a consideration of Rs.1,20,00,000/-. As per the agreement, on the date of signing the agreement, the plaintiff to pay a sum of Rs.30,00,000/- to M/s.Red Giant Movies, a sum of Rs.30,00,000/- to be paid to M/s.Red Giant movies within 2 weeks from the date of agreement, and the balance amount of Rs.60,00,000/- to be paid to M/s.Red Giant Movies as full and final settlement. one day prior to the date of general theatrical release and only on handing over to the plaintiff the duly confirmed lab letter along with censor certificate and on handing over the digital Intermediate Data files of the film. either on a hard disc/LTO (Linear Tape Open) back up device/DPX file/HD COPY with 5.1 Audio. The above said sum shall be paid after deducting TDS.
2.4. As per the agreement, the plaintiff paid a sum of Rs.27,00,000/- on 16.05.2013 by way of cheque bearing No:030455 and a sum of Rs.81,00,000/- on 21.05.2013 by way of cheque bearing No.030465. As 8/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 per the assignment agreement dated 13.05.2013, the tentative date of release of the said movie was on 28.06.2013 and the plaintiff's telecast commencing date for entire world including India, was 100 days from the date of general theatrical release. The said assignment is for a perpetual period.
2.5. Subsequently, there was a supplementary agreement dated 16.05.2014 entered into between the plaintiff and the 1st defendant st wherein, the 1 defendant had accepted and acknowledged the receipt of the entire consideration and explicitly spelt out the telecast commencing date of the suit film as 26.08.2013.
2.6. As per the assignment agreement, the 1st defendant assigned to the plaintiff the copyright of the film "NERAM" for broadcasting the said film through satellite Television Broadcast Direct to Home broadcast, direct satellite service, internet video streaming through all forms, I.P. TV, broadband, telephone, telephony, cell phone radio (all dimensions) VCD, 9/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 DVD, video on demand, movie on demand, video, High definition (HD), laser disc, blue ray, u-matic, inflight, airborne, railborne, terrestrial television broadcast (all dimensions) through cable/via cable TV, local delivery system, MMDS, paper view, seaborne, all modes of public/private transportation, public service broadcasting, private communication/ broadcast, wire, wireless, 2D & 3D formats/dimensions of the film or any other formats/dimensions which may be in existence now or invented in future or through any other forms, means and modes and any forms of communication like signs, signals, writing, pictures, images and sounds of all kinds of transmission of electro magnetic waves through space or through cables intended to be received by the general public, either directly or indirectly through the medium of relay stations and all its grammatical variations and cognate expressions shall be construed accordingly or any other systems without restriction of geographical area and including all channels of Doordarshan. The above said assignment is for a perpetual 10/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 period of 99 years.
st 2.7. The 1 defendant had also by its letter dated 16.05.2013 to the plaintiff, confirmed the assignment and handed over the hard disc of the said film to the plaintiff. The 1st defendant had explicitly by another letter dated 17.05.2013, had requested the plaintiff not to telecast the said film in the plaintiff's channel Surya TV, Krian TV, Kohcu TV and any other Malayalam Channels since the 1st defendant had assigned the Malayalam version satellite rights to Manorama TV. The 1st defendant as stated above, had handed over the hard disk and also the censor certificate and by various letters confirmed the assignment of the copyright of the said movie in favour of the plaintiff.
2.8. While that being so, the said movie was exhibited in Qatar Airways and when enquired with Qatar airways, the plaintiff was informed nd by the 2 defendant, by their letter dated 02.12.2013 that, they had obtained rights for the said movie and another movie from distribution 11/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rights holder. Immediately, the plaintiff by its letter dated 05.12.2013 to the 1st defendant, sought for clarification with respect to the letter sent by nd the 2 defendant. The 1st defendant by its letter dated 06.12.2013, had shifted the entire blame on Red Giant Movies which is neither the producers nor assignment right holders of the said movie.
st 2.9. The 1 defendant, by its earlier letter dated 06.12.2013 to the lab nd had categorically stated that the 2 defendant was only given the distribution of the said film to be released theatrically. Distribution rights for theatrical release is entirely different from the rights given in favour of nd the plaintiff. The 2 defendant knowing very well that it does not have any rights with respect to that movie, had purposely and willfully failed to mention as to from whom the alleged rights were obtained by them in their nd letter dated 02.12.2013. Hence, it is very clear that the 2 defendant has no rd right over the said movie and the 3 defendant has been assigned only distributorship for theatrical release. 12/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 st 2.10. Without admitting but assuming that the 1 defendant had rd assigned to the 3 defendant the overseas rights/airborne rights etc. as early as on 25.04.2013, then assigning the same to the plaintiff by an agreement dated 13.05.2013 is nothing but cheating for the purpose of making unlawful gains for which the plaintiff reserves its right to proceed in future for damages if need arises.
st 2.11. The 1 defendant by agreement dated 13.05.2013, had assigned the entire copyrights of the said movie including overseas rights, overseas inflight/air-borne rights for a consideration of Rs.1,20,00,000/- and the st entire sale consideration was paid to the 1 defendant, which was also acknowledged by way of supplementary agreement dated 16.05.2013.
nd Now, the 2 defendant without any rights in the said movie, is screening rd the same in the airlines, which it claims to have obtained from the 3 st defendant. But the 1 defendant, at the time of entering into agreement with the plaintiff had represented that only distribution rights for theatrical 13/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd release was granted to the 3 defendant and produced a letter dated 15.05.2013.
2.12. Inspite of notices having been sent to the defendants, the nd telecasting of the said movie in airlines is being continued by the 2 defendant. The plaintiff's right of copyright is infringed by the defendants and unless they are restrained, the plaintiff will be put to irreparable loss and hardship.
2.13. The defendants, colluding with each other are taking frantic efforts to exploit the movie in all forms and telecasted the movie in all airlines to which they have absolutely no rights. The threat of exploit and telecast of the said movie by defendants is looming large and is a continuing one and the plaintiff is constrained to approach this Court for a declaration that the plaintiff is the sole and absolute copyright holder for broadcasting the film "NERAM" through all modes as stated above without restriction of geographical area and including all channels of 14/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 Doordarshan, for a perpetual period of 99 years.
3. Despite service of summons and printing of names with complete address in the cause list, there was no representation for the defendants 1 and 2 and therefore, the defendants 1 and 2 were set ex-parte by this Court on 29.08.2018.
rd
4. The 3 defendant, by filing written statement, denied the allegations made in the plaint stating that the suit is not maintainable either in law or on facts and is liable to be dismissed in limine on the ground of "Suppressio veri suggestio falsi" and also on the ground of non-joinder of necessary parties. The plaintiff has deliberately suppressed the material facts and has sought for declaration of copyrights in the Tamil Cinematography film "NERAM", despite being aware of the prior rd st assignment of copyrights executed in favour of the 3 defendant by the 1 defendant. The plaintiff has approached this Court with unclean hands and has filed this suit with a mala-fide and speculative intent. This suit has 15/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 been filed clandestinely and belatedly as no actions have been brought before this Court till the filing of this suit, despite parties corresponding in regard to the film titled "NERAM" in December 2013 and as such, the plaintiff's action is hit by latches. On these preliminary grounds itself, the suit ought to be dismissed in-limine. Owing to non-joinder of necessary parties, whose presence is essential and vital for passing of an effective decree, this suit cannot be entertained. Though the payments towards assignment of copyrights have all been allegedly made by the plaintiff in favour of M/s.Red Giant Movies, they have not chosen to implead them as st parties to the suit and further, the 1 defendant has also confirmed in writing to the plaintiff that the entire transactions were all done at the behest and with the knowledge and involvement of the said M/s.Red Giant Movies. Therefore, the Red Giant Movies is a proper and necessary party to the suit and their non-joinder should result in dismissal of the suit in- limine.
16/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd 4.1. On 25.04.2013, the 3 defendant entered into an Agreement of Sale with the producer of the Tamil cinematograph film "NERAM" and the st 1 defendant herein, for assignment of various copyrights of the film, including inflight/air-borne copyrights and other exhibition and exploitation rights for the entire world excluding India, for a valuable consideration. As per the terms of the Agreement, the entire payment of Rs.16,00,000/- was to be made to the said M/s.Red Giant Movies and rd payment has also been made by the 3 defendant, as reflected in their bank st statement. The 1 payment was made on 27.04.2013 and subsequently, the balance payment was made after deducting TDS which has also been made to M/s.Red Giant Movies on 14.05.2013. As per the Agreement dated 25.04.2013, on and from the date of assignment in its favour, i.e., rd 25.04.2013 onwards, the 3 defendant is entitled to all the copyrights rd assigned to it, including inflight/air-borne rights. The 3 defendant has also nd dealt with the rights in favour of the 2 defendant. 17/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd 4.2. As the owner of the copyrights, the 3 defendant dealt with the nd said rights in favour of various third parties including the 2 defendant.
nd Thereafter, the 2 defendant, through their airlines i.e. Qatar Airlines has been exploiting the inflight/airborne rights for the film "NERAM" from 01.09.2013 onwards. It is pertinent to note that the alleged assignment of st various rights conferred on the plaintiff by the 1 defendant vide Agreement 13.05.2013 for the Tamil Cinematograph film "NERAM", was st assigned subsequent to the Agreement entered into between 1 defendant rd and the 3 defendant. The payment of consideration by the plaintiff to M/s.Red Giant Movies, is also subsequent. Further, a Supplementary st Agreement dated 16.05.2013 has also been executed between 1 defendant and plaintiff. On the date of alleged assignment of rights in favour of the st plaintiff, the 1 defendant did not have the inflight/air-borne rights, as they rd had already parted with the same in favour of the 3 defendant on 25.04.2013 itself. The plaintiff was informed of the said fact of prior 18/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd assignment of rights in favour of the 3 defendant, by letter dated st 06.12.2013, issued by the 1 defendant but the plaintiff chose to remain silent due to the fact that the alleged assignment of rights in favour of the plaintiff was later in point of time by Supplementary Agreement, dated 16.05.2013. Therefore, no rights can be claimed by the plaintiff.
4.3. The plaintiff would have no right whatsoever, as the agreement st dated 13.05.2013 was executed after the rights were assigned by the 1 rd defendant to the 3 defendant, vide prior agreement dated 25.04.2013. The rd 3 defendant has valid title of various copyrights including "inflight/air- borne" assigned to them for the film "NERAM" and has not in anyway infringed any alleged copyrights assigned to the plaintiff. This defendant is exploiting copyrights that have been purchased by them for a valuable consideration of Rs.16,00,000/- for the same. Further, the correspondence st between the plaintiff and 1 defendant, especially the letter dated st st 06.12.2013 issued by the 1 defendant itself, makes it clear that the 1 19/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 defendant, Producer of the film "NERAM" has assigned the rights in question, namely "inflight/air-borne" rights and Overseas rights in favour rd of the 3 defendant on 25.04.2013 itself. Upon receipt of the letter dated rd 06.12.2013 and a copy of which was also marked to the 3 defendant, the plaintiff chose to remain silent until embarking upon this belated suit. The nature of correspondence and the conduct of the plaintiff would prove that its claims are made with ulterior motive and no equitable remedy can be granted in favour of the plaintiff. The suit is purely speculative. In light of the above facts, the claims made by the plaintiff ought not to be countenanced and the same deserve to be dismissed. Hence, the present suit filed by the plaintiff is liable to be dismissed.
5. Upon considering the pleadings, the following issues have been framed by this Court on 16.10.2019.
1. Whether the plaintiff is a copyright holder as per the agreement dated 13.05.2013?
2. Whether the plaintiff is a prior right holder ? 20/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014
3. Whether the suit is bad for non-joinder of the necessary party?
4. To what relief the parties are entitled?
6. In order to substantiate the case, on the side of the plaintiff, the plaintiff was examined as P.W.1 and 8 documents were marked as Ex.P.1 to rd Ex.P.8. On the side of the 3 defendant, one witness was examined as D.W.1 and 6 documents were marked as Ex.D1 to Ex.D6.
st
7. The learned counsel for the plaintiff submitted that the 1 defendant is the producer and copyright holder of the Tamil film st "NERAM". The 1 defendant, by way of agreement dated 13.05.2013 (Ex.P.13), assigned the exclusive copyright of said film in favour of the plaintiff. The rights assigned in favour of the plaintiff are detailed under Clauses 1 and 3 of the assignment agreement, dated 13.05.2013 (Ex.P3) which is evident that the plaintiff has been assigned an absolute and exclusive copyright in the suit film for broadcasting the same in various 21/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 media including inflight and air-borne rights as well, without restriction of geographical area. The plaintiff has paid a consideration of st Rs.1,20,00,000/- to one M/s. Red Giant Movies, as directed by the 1 defendant, for assignment of the copyright in respect of the suit film, as detailed under Clause 2 of the assignment agreement, dated 13.05.2013, as per which, Rs.30,00,000/- has to be paid on the date of signing the assignment agreement, Rs.30,00,000/- has to be paid within two weeks from the date of the assignment agreement and a sum of Rs.60,00,000/- has to be paid one day prior to release of the suit film. The plaintiff, by way of cheques, dated 16.05.2013 and 21.05.2013 had paid a sum of Rs.27,00,000/- and Rs.81,00,000/- respectively towards consideration for assignment of the copyright in the suit film after applicable deductions.
7.1. As per the assignment agreement, dated 13.05.2013, the plaintiff's right to telecast the suit film throughout the entire world including India, commences after 100 days from the date of general 22/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 theatrical release of the suit film and the copyrights are assigned for perpetual period from the date of the assignment agreement. Subsequently, st the 1 defendant and the plaintiff had entered into a Supplementary st Agreement, dated 16.05.2013 (Ex.P4), whereby the 1 defendant had confirmed receipt of the entire consideration for assignment of the copyright of the suit film in favour of the plaintiff. The confirmation made st by the 1 defendant is found in Clauses 3 and 4 of the Supplementary st Agreement, dated 16.05.2013. The 1 defendant had also confirmed the delivery of the lab letter, duly confirmed by the lab to the plaintiff in Clause 4 of the Supplementary Agreement along with the receipt of the consideration amount. As per the Supplementary Agreement, dated 16.05.2013, the tentative date of release of the suit film was 17.05.2013, and the Plaintiff's rights to telecast the suit film throughout the entire world including India, was to commence after 100 days from the date on which the general theatrical release was made, which would be 26.08.2013. 23/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 7.2. The learned counsel for the plaintiff further submitted that the st 1 defendant had issued a letter dated 16.05.2013 (Ex.P5), whereby, it had confirmed the delivery of hard disc in respect of the suit film to the st plaintiff. Thereafter, on 17.05.2013, the 1 tefendant had issued a letter to the plaintiff (Ex.P6), requesting it not to telecast the suit film in any of its present and future Malayalam Television Channels, since the movie was made in Malayalam language simultaneously and the rights to telecast the same had been assigned to a third party. The above documents would prove that the exclusive copyrights in respect of the suit film including the air-borne rights, are with the plaintiff, and none other.
7.3. While the facts stood thus, the suit film was exhibited in Qatar Airways frequently, without any authorization given by the plaintiff for the nd same. Upon enquiry by the plaintiff with Qatar Airways, the 2 defendant, who was the supplier of in-flight entertainment services for Qatar Airways, issued a letter dated 02.12.2013 (Ex.P7) to the plaintiff stating that they 24/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 had obtained the air-borne license rights to telecast the suit film, along with another film. It is pertinent to state here that the said letter does not refer to an agreement dated 25.04.2013 alleged to have been entered into between st rd rd the 1 and 3 defendants on the strength of which the 3 defendant alleged nd to have assigned the rights of the suit film to the 2 defendant. Pursuant to st the same, the plaintiff issued a letter dated 05.12.2013 to the 1 defendant, seeking a response regarding the exploitation of its air-borne rights by third st parties. The 1 defendant, vide a reply dated 06.12.2013 (Ex.P8) stated for the first time that they had entered into an agreement dated 25.04.2013 rd with the 3 defendant, and that no agreement pertaining to the suit film nd was entered into with the 2 defendant.
st 7.4. The 1 defendant did not intimate the plaintiff regarding any rd agreement allegedly entered into with the 3 defendant at any point of time. The assignment agreement and the supplementary agreement entered st into between the plaintiff and 1 defendant, does not disclose anything 25/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 st rd about the alleged agreement between the 1 and 3 defendants. The defendants have attempted to jointly mislead and cheat the plaintiff of their lawful rights. In fact, the assignment agreement at Clause 5 records that the st 1 defendant has not and will not from the date of this agreement, assign rights to any other third party.
7.5. The learned counsel also submitted that the alleged agreement, st dated 25.04.2013(Ex.D2) said to have been entered into between the 1 rd defendant and 3 defendant is certainly a document which was cooked up rd st to suit the case of the 3 defendant in connivance with the 1 defendant. While the Agreement dated 25.04.2013 (Ex.D2) states explicitly at Schedule-A that the territories to which the rights are being assigned is "All rights for the entire world excluding India", the letter dated st 05.12.2013 issued by the 1 defendant states in direct contravention that, "...we have granted the overseas Inflight/Airborne rights of our film Neram to M/s AP International having office at Old. No.80, New No.42, 26/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 New Avadi Road, Kilpauk, Chennai-600010, for the territory of Entire World on a sole, exclusive, irrevocable basis for a perpetual period as per our agreement dated 25th April 2013." [Emphasis Supplied] 7.6. It is absurd that while as per the Agreement dated 13.05.2013 (Ex.P3), the consideration for exploitation of the rights in the film in the entire world, was Rs.1,20,00,000/- and consideration for the same rights excluding rights to exploit in India alone is merely Rs.16,00,000/- as per the agreement dated 25.04.2013 (Ex.D2). This discrepancy itself shows that the Agreement dated 25.04.2013 has been cooked up to suit the case of the 3rd defendant. Though the 3rd defendant has marked its bank statement (Ex.D3) to show that certain payment had been made to one M/s. Red Giant Movies on 27.04.2013 and 14.05.2013 and there is nothing to connect the said payments with the alleged consideration agreed to have been paid under the Agreement dated 25.04.2013 (Ex.D2), whereas the 27/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 plaintiff has filed the agreement dated 13.05.2013 (Ex.P3) entered into st between the plaintiff and the 1 defendant, under which the total consideration agreed was Rs.1,20,00,000/- and the receipt of the entire sale st consideration was acknowledged by the 1 defendant under the Supplementary Agreement dated 16.05.2013 (Ex.P4). Apart from that, the alleged payment of Tax Deducted at Source (TDS) (Ex.D4) is said to have rd been made by the 3 defendant in the Permanent Account Number (PAN) st of the 1 defendant, however the payment has been allegedly made to M/s. Red Giant Movies. The alleged TDS was also only for a sum of Rs.60,000/- without any indication as to under what head the same has been made.
rd 7.7 It is relevant to note that the 3 defendant's witness in cross examination stated by seeing Ex.D4 that he is not sure as to what amount was paid and what payments had resulted in the TDS to Question Nos.36 rd & 37. Further, the 3 defendant's witness admits that there are no 28/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 documents on record to show that the payments shown in the purported bank statement (Ex.D2) are in relation to the TDS deduction in Form 16A (Ex.D3). As such, there is no proof of payment of the consideration rd claimed to have been paid by the 3 defendant for assignment of their alleged rights. Even assuming without admitting that the consideration rd amount of Rs.16,00,000/- was paid by the 3 defendant to M/s.Red Giant Movies as agreed, there should have been a deduction of Rs.1,60,000/- towards TDS (10% of the amount paid as prevailed during that period). Further, if the said sum of Rs.60,000/- as reflected in the TDS certificate (Ex.D3), was towards payments made to M/s.Red Giant in relation to the suit film's overseas rights, the sum that ought to have been reflected in the purported bank statement should have been Rs.5,40,000/- as the TDS at the relevant time was 10% of the gross amount payable. Therefore, it is crystal clear that the agreement dated 25.04.2013 (Ex.D2) was brought into existence only to non-suit the plaintiff and the same is sham and nominal. 29/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 7.8 Further, D.W.1 during response to Q.No.55 during cross rd examination has stated that the original agreement (Ex.D2) is with the 3 rd defendant. However, the 3 defendant has only marked a photocopy of the said alleged agreement dated 25.04.2013 (Ex.D2), in spite of the rd agreement being available with them. No reason has been stated by the 3 defendant anywhere in their pleadings for marking the photocopy, when rd the Original document was available with them. Further, the 3 defendant has not filed a certificate under Sec. 65-B of the Indian Evidence Act, 1872, for marking Ex.Nos.3 and 4, which are purportedly a print of electronic records. Hence, they cannot be considered as evidence in the present case. The Qatar Airways Order Info, dated 08.07.2013 (Ex.D5) nd does not reveal that the rights of the suit film is being sold to the 2 defendant. There is no proof to show that the alleged consideration under Ex.D5 had been actually paid.
7.9 The learned counsel submitted that even assuming without 30/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 admitting that the said agreement dated 25.04.2013 is genuine, upon rd discovering the existence of the agreement, dated 13.05.2013, the 3 defendant ought to have filed a suit against the plaintiff herein for alleged infringement of their copyright or at the very least, filed a counter-claim in rd the present Suit. The very lack of such action of the 3 defendant herein clearly shows that their contentions are not genuine.
7.10 Further, even assuming without admitting that the said agreement dated 25.04.2013 is genuine, even according to the said nd agreement, the 2 defendant can play the suit film only in flights which are bound to Chennai from other destinations or in-flights which are starting from Chennai Airport. In both the scenarios, the suit film cannot be played nd by the 2 defendant, as the entire rights in respect of the suit film so far as India is concerned is admittedly with the plaintiff. D.W.1 admitted that the display of the suit film will be carried out in all the flights of Qatar Airway's originating from or having destination to southern India. D.W.1 31/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 further admitted that when once the films are loaded on the flight, then the viewing cannot be restricted and airing the film over Indian Air Space of Territories are definitely infringing upon the plaintiff's right under the agreement, dated 13.05.2013 (Ex.P3) and the supplementary agreement, dated 16.05.2013 (Ex. P4).
nd 7.11 The 2 defendant has clearly violated the exclusive copyright st of the plaintiff in the suit film. The 1 defendant, which was the producer, has expressly stated in their letter dated 06.12.2013 that they have not nd entered into any agreement with the 2 defendant pertaining to the suit nd film. Therefore, the 2 defendant has attempted to mislead the plaintiff through their letter dated 02.12.2013 by stating that they have obtained nd copyrights for the suit film. Though the 2 defendant has stated so, no documents to substantiate the same have been produced in the above case.
st nd Further, the 1 and 2 defendants have conveniently chosen to remain ex- parte.
32/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd 7.12 The learned counsel further submitted that the 3 defendant has submitted Qatar Airways order Info, dated 08.07.2013 (Ex.D5), whereby nd they have granted an approval to the 2 defendant to telecast the suit film rd in Qatar Airways. It is submitted that the 3 defendant themselves do not have the rights to telecast the suit film and therefore, they cannot further delegate the rights that they do not hold. As per Clause 2 of the alleged st rd agreement, dated 25.04.2013 (Ex.D2) entered into between the 1 and 3 st rd defendants, the 1 and 3 defendants are to intimate the Registrar of Copyrights under the Copyrights Act, 1957 that the exclusive copyright rd holder for the suit film was the 3 defendant. But, no details regarding the intimation has been filed in the above case. Further, as per Clause 3.2 of the alleged agreement dated 25.04.2013 (Ex.D2) entered into between the st rd st 1 and 3 defendants, the 1 defendant had stated that they shall give an unencumbered and unconditional laboratory letter, thereby authorizing the laboratory to give the positive prints of the suit film to the purchaser. But 33/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd no such lab letter had been produced by the 3 defendant in the above case.
rd Further, the 3 defendant was also under an obligation as per the above mentioned alleged agreement to obtain a confirmation from the lab rd whereby the lab would give a prior intimation to the 3 defendant before granting copyrights to any other person, and would obtain a prior written rd consent of the 3 defendant before assigning the same. But no proof of such intimation has been produced in the above case, which proves the non-existence of any lab letter. Therefore, it is uncertain as to how the defendants had obtained a copy of the suit film to be telecasted. In any rd event, even assuming without admitting that the 3 defendant has obtained st overseas rights as set out in its agreement with the 1 defendant, the said agreement does not grant any exclusive rights in respect of overseas rights rd to the 3 defendant. The plaintiff is the exclusive copyright holder in respect of the suit film, and the defendants do not possess any rights over the suit film. The defendants have expressly violated the copyrights of the 34/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 plaintiff, and therefore they are liable to be injuncted from infringing the copyrights of the plaintiff over the suit film. In support of his submissions, the learned counsel placed reliance on the judgment of this Court in the case of Sun TV Network Ltd. Vs. Parameswara Art Productions reported in 2022 SCC Online Mad 2842.
rd rd
8. The leaned counsel for the 3 defendant submitted that the 3 st defendant entered into an agreement with the 1 defendant/Producer of the st Suit Film on 25.04.2013. Under this agreement dated 25.04.2013, the 1 defendant assigned various copyrights including inflight/air-borne rights rd for the film "NERAM" in favour of the 3 defendant for the territories of rd entire World excluding India. The 3 defendant paid the consideration of Rs.16,00,000/- to M/s.Red Giant Movies as per the agreement, partly on 27.04.2013 and balance on 14.05.2013. Therefore, on 25.04.2013 itself rd when the agreement was signed, the 3 defendant acquired valid copyrights over the inflight/air-borne copyrights of the suit film from the 35/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 st 1 defendant/Producer.
8.1. The learned counsel further submitted that the plaintiff entered st into an agreement with the 1 defendant only later i.e. on 13.05.2013.
st Under this subsequent agreement dated 13.05.2013, the 1 defendant wrongly assigned similar inflight/air-borne rights to the plaintiff without having such rights as on that date, in view of the earlier assignment of the rd said rights in favour of the 3 defendant on 25.04.2013 itself. The payments made by the plaintiff to M/s.Red Giant Movies was only on rd 16.05.2013 and 21.05.2013 i.e. much after the payments made by the 3 rd defendant. Hence, the plaintiff's agreement is clearly subsequent to the 3 defendant's agreement, both by date of execution and by date of payment.
rd The 3 defendant, in its capacity as valid copyright owner, further nd exploited the rights by licensing the in-flight rights to the 2 defendant/ Qatar Airways, which has been screening the suit film since 01.09.2013. The plaintiff's claims over the inflight/air-borne rights are baseless, since 36/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 st its agreement dated 13.05.2013 with the 1 defendant is subsequent to the rd st 3 defendant's agreement dated 25.04.2013. The 1 defendant has acknowledged by their letter dated 06.12.2013 to the plaintiff that the rd inflight/air-borne rights were already assigned to the 3 defendant on the rd prior date of 25.04.2013. Despite having knowledge of the 3 defendant's st prior rights through the 1 defendant's letter, the plaintiff did not rd immediately assert any claims over inflight/air-borne rights against the 3 defendant and remained silent.
8.2. Further, the Plaintiff has not chosen to implead M/s. Red Giant st Movies as a party, despite the 1 defendant informing that the entire copyrights of the film were dealt with only through M/s.Red Giant Movies.
nd The plaintiff and 2 defendant have admittedly made payments only through the said M/s.Red Giant Movies. Therefore, the only person who can confirm the assignments is the said M/s.Red Giant Movies and they 37/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 have not been made as a party to the suit, thereby, rendering the suit liable to be dismissed for non-joinder of necessary parties.
8.3. The learned counsel further submitted that the plaintiff has filed the present suit belatedly in the year 2014 to claim inflight/air-borne rights, rd despite having no rights, which evidences its mala-fide intent. The 3 defendant has rightly exploited the inflight/air-borne rights of the suit film st by virtue of being the prior assignee from the 1 defendant/Producer since 25.04.2013 i.e. much before the plaintiff's agreement dated 13.05.2013. In rd the light of the clear timeline of events and facts establishing the 3 defendant's prior rights, the plaintiff's suit has to be dismissed. In support of his submissions, the learned counsel also relied on a judgment of this Court in the case of Messrs.Emgeeyar Pictures Pvt. Ltd. Vs. Messrs.O.K.Films reported in 2009-5-L.W.164.
9. Heard both sides and perused the materials available on record.
10. The specific case of the plaintiff is that the plaintiff/M/s.Sun TV 38/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 Network Ltd. is a leading Television Network in South India. The plaintiff company is involved in the production and distribution of movies and also involved in airing FM radio station. In the course of its business, it would also enter into assignment agreement to take assignment of copyright for the films for Terrestrial Television Broadcast and Satellite Television Broadcast rights and other broadcasting rights including the exhibition of films by means of wireless diffusion and by wire for communication of the public.
st
11. The 1 defendant is the Producer and exclusive copyright holder st of the cinematography Tamil film "NERAM". The 1 defendant by way of agreement dated 13.05.2013, had assigned the copyright for the said film in favour of the plaintiff for a consideration of Rs.1,20,00,000/-. The plaintiff paid the consideration of a sum of Rs.1,20,00,000/- to one M/s.
st Red Giant Movies, as directed by the 1 defendant and as detailed under Clause 2 of the assignment agreement, dated 13.05.2013, the plaintiff, by 39/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 way of cheques, dated 16.05.2013 and 21.05.2013, had paid a sum of Rs.27,00,000/- and Rs.81,00,000/- respectively, towards consideration for assignment of the copyright in the suit film after applicable deductions.
st
12. As per the assignment agreement, dated 13.05.2013, the 1 defendant has assigned to the plaintiff the copyright of the suit film for broadcasting through satellite Television Broadcast including inflight, air- borne, rail-borne and the plaintiff's right to telecast the suit film throughout the entire world, including India commences after 100 days from the date of general theatrical release of the suit film and the copyrights were assigned for perpetual period from the date of the assignment agreement.
st Subsequently, the 1 defendant and the plaintiff had entered into a st Supplementary Agreement, dated 16.05.2013, whereby, the 1 defendant has confirmed receipt of the entire consideration for assignment of the copyright of the suit film in favour of the plaintiff. The confirmation made st by the 1 defendant is found in Clause 3 and Clause 4 of the 40/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 st Supplementary Agreement, dated 16.05.2013. The 1 defendant had also confirmed the delivery of the lab letter duly confirmed by the lab to the plaintiff in Clause 4 of the Supplementary Agreement along with the receipt of the consideration amount. Even As per the Supplementary Agreement dated 16.05.2013, the tentative date of release of the suit film was on 17.05.2013, and the plaintiff's right to telecast the suit film throughout the entire world, including India, was to commence after 100 days from the date on which the general theatrical release was made i.e. on 26.08.2013.
st
13. The 1 defendant by letter dated 16.05.2013 had confirmed the delivery of hard disc in respect of the suit film to the plaintiff. Thereafter, st on 17.05.2013, the 1 defendant had issued a letter to the plaintiff requesting it not to telecast the suit film in any of its present and future Malayalam Television Channels, since the said movie was made in 41/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 Malayalam language simultaneously and the rights to telecast the same had been assigned to a third party.
14. While so, the plaintiff came to know that the suit film was exhibited in Qatar Airways frequently, without any authorization given by the plaintiff for the same. Upon enquiry by the plaintiff with Qatar nd Airways, the 2 defendant, who was the supplier of in-flight entertainment services for Qatar Airways, issued a letter dated 02.12.2013 (Ex.P7), to the plaintiff stating that they had obtained the air-borne license rights to telecast the suit film, along with another film. Hence, the present suit is filed by the plaintiff.
rd rd
15. The specific case of the 3 defendant is that the 3 defendant st entered into an agreement with the 1 defendant/Producer of the suit film st on 25.04.2013, as per which, the 1 defendant assigned various copyrights including inflight/air-borne rights for the film "NERAM" in favour of the rd 3 defendant for the territories of entire world excluding India and that the 42/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd 3 defendant had paid the consideration of Rs.16,00,000/- to M/s.Red Giant Movies as per the agreement partly on 27.04.2013 and the balance consideration on 14.05.2013. Therefore, on the date of signing of the rd agreement i.e. on 25.04.2013 itself, the 3 defendant acquired valid copyrights over the inflight/air-borne copyrights of the suit film from the st 1 defendant/Producer of the said film. But the plaintiff's agreement dated st 13.05.2013 with the 1 defendant is only subsequent to the agreement of rd st the 3 defendant. The 1 defendant has wrongly assigned similar inflight/air-borne rights to the plaintiff without having such rights as on that date. Even the payments made by the plaintiff to M/s.Red Giant Movies on 16.05.2013 and 21.05.2013 are also subsequent to the rd rd agreement and payments made by the 3 defendant. The 3 defendant, in their capacity as a valid copyright owner, further exploited the rights by nd nd licensing the inflight rights to the 2 defendant and thereafter, the 2 defendant, through their airlines-Qatar Airlines has been exploiting the 43/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 inflight/air-borne rights for the film "NERAM" from 01.09.2013 onwards. Therefore, the plaintiff's claims over the inflight/air-borne rights for the st suit film are baseless, since their agreement dated 13.05.2013 with the 1 rd defendant is subsequent to the 3 defendant's agreement dated 25.04.2013.
st Further, the 1 defendant by its letter dated 06.12.2013 to the plaintiff has clearly stated that the inflight/air-borne rights were already assigned to the rd rd 3 defendant on 25.04.2013 itself. Therefore, the 3 defendant has rightly exploited the inflight/air-borne rights of the suit film by virtue of being the st rd prior assignee by the 1 defendant/Producer. Since the 3 defendant is the prior assignee, the suit filed by the plaintiff is not maintainable as against rd the 3 defendant and the same is liable to be dismissed.
16. On a perusal of the pleadings and the entire materials available on record, the issues are answered as follows:
17. ISSUE NO.1 and 2: Since the issue Nos.1 and 2 are similar and related to each other, they are being dealt with together as follows; 44/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 ISSUE No.1. Whether the plaintiff is a copyright holder as per the agreement dated 13.05.2013? and ISSUE No.2: Whether the plaintiff is a prior right holder?
st 17.1 Admittedly, the 1 defendant is the Producer and copyright holder of the suit film "NERAM" which is evident from Ex.P2/Censor Certificate. Ex.P3/assignment agreement dated 13.05.2013 shows that the st 1 defendant has assigned the exclusive copyright of suit film in favour of the plaintiff. The rights assigned in favour of the plaintiff are detailed under Clauses 1 and 3 of the said assignment agreement, in which it is clearly mentioned that the plaintiff has been assigned absolute and exclusive copyright in the suit film for broadcasting the film in various media including inflight and air-borne rights, without restriction of geographical area.
17.2 Further, as per Clause 2 of the assignment agreement and as st directed by the 1 defendant, the plaintiff has also paid a sum of 45/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 Rs.1,20,00,000/- to one M/s. Red Giant Movies by way of cheques dated 16.05.2013 and 21.05.2013 for a sum of Rs.27,00,000/- and Rs.81,00,000/- respectively, after applicable deductions, towards consideration for assignment of the copyright in the suit film in favour of the plaintiff.
17.3 Ex.P4/Supplementary Agreement dated 16.05.2013 shows that st the 1 defendant and the plaintiff have subsequently entered into a st supplementary agreement whereby, the 1 defendant has confirmed the receipt of entire consideration for assignment of copyright of the suit film st in favour of the plaintiff and that the confirmation made by the 1 defendant is found in Clauses 3 and 4 of the Supplementary Agreement.
st Further, the 1 defendant has also confirmed the delivery of the lab letter, duly confirmed by the concerned lab with respect to the suit film to the plaintiff, in Clause 4 of the Supplementary Agreement, along with the receipt of the consideration amount. As per the Supplementary Agreement, dated 16.05.2013, the tentative date of release of the suit film was on 46/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 17.05.2013, and the plaintiff's rights to telecast the suit film throughout the world including India, was to commence after 100 days from the date on which the general theatrical release was made i.e. on 26.08.2013.
st 17.4 Ex.P.5 is the letter issued by the 1 defendant to the plaintiff in which, the 1st defendant has confirmed the delivery of hard disc in respect of the suit film to the plaintiff.
st 17.5 Ex.P6 is the letter issued by the 1 defendant to the plaintiff st whereby, the 1 defendant has requested the plaintiff not to telecast the suit film in any of their present and future Malayalam Television Channels stating that the said film was simultaneously made in Malayalam language and the rights to telecast the same had been assigned to a third party.
17.6 On the side of the defendants, 6 documents have been marked, in which Ex.D2 is the sale agreement dated 25.04.2013 entered into st rd st between the 1 defendant and the 3 defendant whereby, the 1 defendant has assigned various copyrights including inflight/air-borne rights for the 47/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd suit film in favour of the 3 defendant for the territories of the entire world, rd but excluding India. Subsequently, the 3 defendant, in their capacity as a valid copyright owner, had exploited the rights by licensing the inflight nd nd rights to the 2 defendant and the 2 defendant in turn, through their airlines-Qatar Airlines had been exploiting the inflight/air-borne rights for rd the suit film from 01.09.2013 onwards. The 3 defendant has also paid the consideration of Rs.16,00,000/- to M/s.Red Giant Movies as per the agreement, partly on 27.04.2013 and the balance on 14.05.2013. Therefore, rd as on 25.04.2013, i.e. on the date of signing of the agreement itself, the 3 defendant had acquired the valid inflight/air-borne copyrights of the suit st rd film from the 1 defendant/Producer. Further, the 3 defendant has marked the original bank statement for the period between April and May 2013 as Ex.D3 and the original payment of TDS in Form No.16A dated 31.07.2013, had been marked as Ex.D4, which shows that the payments dated 16.05.2013 and 21.05.2013 alleged to have been made by the 48/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 plaintiff to M/s.Red Giant Movies, are much later to the payments made by rd the 3 defendant.
nd 17.7 Even in the letter/Ex.P7 dated 02.12.2013, sent by the 2 nd defendant to the plaintiff, the 2 defendant, who was the supplier of in- flight entertainment services for Qatar Airways, has stated that they obtained the air-borne license rights to telecast the suit film along with st another film, from the distribution right holders. Further, the 1 defendant vide their letter dated 06.12.2013/Ex.P.8 sent to the plaintiff, has admitted rd that they have made agreement dated 25.04.2013 with the 3 defendant regarding overseas rights, overseas inflight/air-borne rights, etc. and the deal was done through Red Giant Movies, which is prior to the assignment of the plaintiff.
17.8 On a perusal of the documentary evidence, viz., Ex.P.3 to Ex.P6, this Court finds that the exclusive copyrights in respect of the suit 49/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 film including the air-borne rights are with the plaintiff and that the plaintiff is a copyright holder as per the agreement dated 13.05.2013.
17.9 However, on a perusal of Ex.D2 to Ex.D5 and Ex.P8, this st Court finds that the 1 defendant had already assigned various copyrights including inflight/air-borne rights for the suit film "NERAM" in favour of rd the 3 defendant, much prior to the assignment agreement executed in rd favour of the plaintiff. Therefore, this Court finds that the 3 defendant is the prior right holder of the suit film. Once the agreement executed in rd rd favour of the 3 defendant is prior one, the 3 defendant has got every right to telecast the movie.
17.10 As stated above, admittedly, the plaintiff is a copyright holder rd as per the agreement dated 13.05.2013. However, since the 3 defendant is the prior right holder, the copyrights of the plaintiff is only limited. The issue Nos.1 and 2 are answered accordingly. 50/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014
18. ISSUE No.3: Whether the suit is bad for non-joinder of the necessary party?
st 18.1 According to the plaintiff, as per the directions of the 1 defendant and as per the assignment agreement dated 13.05.2013, they paid the entire consideration to M/s.Red Giant Movies, towards st assignment of copyrights in favour of the plaintiff. Further, the 1 defendant has confirmed in writing to the plaintiff, vide letter dated 06.12.2013/Ex.P8 that they have made agreement dated 25.04.2013 with rd the 3 defendant regarding overseas rights, overseas inflight/air-borne rights, etc. and the entire transactions were done at the behest and with the knowledge and involvement of the said M/s.Red Giant Movies. However, the plaintiff has not chosen to implead the said M/s.Red Giant Movies as party to the suit.
rd 18.2 The defendants 1 and 2 remained ex-parte. The 3 defendant rd alone is contesting the present suit. The main plea of the 3 defendant is 51/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd that even prior to the agreement of the plaintiff, the 3 defendant had st entered into a sale agreement with the 1 defendant/Producer of the suit st film on 25.04.2013 itself, whereby, the 1 defendant assigned various copyrights including inflight/airborne rights for the suit film in favour of rd the 3 defendant for the territories of entire world, but excluding India and rd that the 3 defendant paid the consideration of Rs.16,00,000/- to M/s.Red Giant Movies as per the agreement, partly on 27.04.2013 and the balance rd on 14.05.2013. Further, the 3 defendant has also marked their original bank statement for the period of April to May 2013 as Ex.D3 and the original payment of TDS in Form No.16A dated 31.07.2013 as Ex.D4. Though the plaintiff denied the same stating that the said payment is not related to the suit film, M/s.Red Giant Movies is the best person to say the same.
rd st 18.3 When the 3 defendant takes the stand that the 1 defendant has wrongly assigned similar inflight/air-borne rights to the plaintiff without 52/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 having such rights as on that date, it is for the plaintiff to prove its case.
rd Even after the 3 defendant had taken the stand that the Red Giant Movies is a proper and necessary party to the suit and their non-joinder will result in dismissal of the suit in-limine, the plaintiff has not impleaded them as a party to the suit. Therefore, the present suit is bad for non-joinder of necessary party. This issue is answered accordingly.
19. ISSUE No.4: To what relief the parties are entitled? 19.1 As already held, the plaintiff has got only limited right.
st According to the plaintiff, the 1 defendant did not intimate the plaintiff rd about the agreement entered into with the 3 defendant. In such st circumstances, the plaintiff can work out their remedy with the 1 defendant.
19.2 Though the plaintiff states that the amount said to have been rd paid by the 3 defendant is not related to the suit, as already held, the plaintiff had not chosen to implead M/s.Red Giant Movies as a party to the 53/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 rd present suit till the disposal of the suit to prove their case, despite the 3 defendant had taken the stand that M/s.Red Giant Movies is a proper and necessary party to the suit and the entire consideration towards assignment of copyrights of the suit film was paid to M/s.Red Giant Movies.
19.3 Once the plaintiff claims that the rights obtained by them was rd violated by the 3 defendant, it is the duty of the plaintiff to prove their case in the manner known to law and they cannot take advantage of the loop holes left by the defendants.
rd 19.4 In this case, as held above, the 3 defendant has proved its case that they are the prior right holder of the suit film. But the plaintiff has failed to establish that they are the prior right holder. Therefore, the parties are not entitled to any other relief. This issue is answered accordingly.
19.5 There is no quarrel with the above said judgment of this Court referred to by the learned counsel for the plaintiff, however, the facts and 54/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 circumstances of the said case are distinguishable from the present case on hand and therefore, the same is not applicable to the present case.
19.6 Under these circumstances, this suit is liable to be dismissed. Accordingly, this suit is dismissed. The respective parties are directed to bear their own costs.
18.06.2024
(1/2)
Index : Yes / No
Speaking Order : Yes / No
Neutral Case Citation : Yes/No
Ksa-2
55/58
https://www.mhc.tn.gov.in/judis
C.S. No.569 of 2014
Witnesses Examined on the side of the Plaintiff:
Mr.M.Jyothi Basu (P.W.1) List of Exhibits marked on the side of the plaintiff:
S. No. Exhibits Description of Documents 1 P.1 The Original of the Authorization letter dated 14.11.2011 2 P.2 Photocopy of the Censor Certificate dated 12.04.2013 3 P.3 Photocopy of the Assignment Agreement in favour of the plaintiff dated 13.05.2013 (Original seen and returned) (The learned counsel for the 3rd defendant objected on the ground that the signature of the 2nd attesting witness is not there in the photocopy filed before this Court by the plaintiff and on the copy served upon the 3rd defendant) 4 P.4 Photocopy of the Supplementary Agreement dated 16.05.2013 (Original seen and returned) 5 P.5 Photocopy of the letter dated 16.05.2013 issued by the 1st defendant to the plaintiff st 6 P.6 Photocopy of the letter dated 17.05.2013 issued by the 1 defendant to the plaintiff 7 P.7 Photocopy of the letter dated 02.12.2013 issued by the 2nd defendant to the plaintiff 8 P.8 Photocopy of the letter dated 06.12.2013 issued by the st 1 defendant to the plaintiff 56/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 Witnesses Examined on the side of the defendant:
Mr.G.Senthil Kumar (D.W.1) List of Exhibits marked on the side of the defendant:
S.No. Exhibits Description of Documents rd 1 D1 Authorisation letter of the 3 defendant 2 D2 Photocopy of the sale agreement between 1st defendant and 3rd defendant dated 25.04.2013 (Subject to objection raised by plaintiff side) (D3 side having original of Ex.D2 but refused to file in this Court) rd 3 D3 The original of the bank statement of 3 defendant for the period of April to May 2013 4 D4 Original payment of TDS Form No.16A dated 31.07.2013 5 D5 The photocopy of the Qatar Airways order Info dated 08.07.2013 (Subject to objection raised by plaintiff) 6 D6 The original letter from the 1st defendant to the plaintiff dated 05.12.2013 18.06.2024 (2/2) Index : Yes / No Speaking Order : Yes / No Neutral Case Citation : Yes/No Ksa-2 57/58 https://www.mhc.tn.gov.in/judis C.S. No.569 of 2014 P.VELMURUGAN. J.
Ksa-2 C.S. No.569 of 2014 18.06.2024 58/58 https://www.mhc.tn.gov.in/judis