Calcutta High Court
Vodafone Idea Limited vs Saregama India Limited & Anr on 2 July, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
OD-11
GA 1068 of 2018
With
CS 23 of 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
VODAFONE IDEA LIMITED
Versus
SAREGAMA INDIA LIMITED & ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date : 2nd July, 2019.
Appearance:
Mr.S.N.Mookherjee, Sr.Adv.
Mr.Soumabho Ghose, Adv.
Mr.Deepan Sarkar, Adv.
Mr.Arunabha Deb, Adv.
Ms.Ashika Daga, Adv.
..for Vodafone Idea Ltd.
Mr.Anindya Kumar Mitra, Sr. Adv.
Mr.Abharjit Mitra, Sr.Adv.
Mr.Soumya Raychowdhury, Adv.
Mr.Sarosij Dasgupta, Adv.
Mr.Surajit Biswas, Adv.
Mr.Ritesh Kr. Ganguly, Adv.
Mr.Mudrika Khaitan, Adv.
Mr.Himangshu Bagai, Adv.
..for I.P.R.S. The Court : Mr.Anindya Kumar Mitra, learned senior advocate continues with his submissions. He draws attention to section 31 D of the Act. The section provides for statutory licence on broadcasting of literary or musical works and sound recording. He submits, the provisions are applicable since the sound recordings, copyright in which is owned by defendant no.1, have incorporated in them, literary and musical works, authors of which are members of his client. Clause (dd) in interpretation section 2 gives meaning of broadcast to include as that 2 done by any means of wireless diffusion. This is how contents belonging to his client's members are broadcasted to the public by plaintiff. No licence has been obtained. This licence can only be granted on application for compulsory licence, the rate of which is to be determined by the Appellate Board. He reiterates reliance on Tips Industries Limited (supra). He also relies on another Division Bench judgement of Bombay High Court in (Music Choice India Private Limited versus Phonographic Performance Limited) reported in 2010 Vol. 112 (1) Bom. L.R. 0470, paragraphs 10 and 19 for clear view expressed regarding grant of compulsory licence as a matter outside purview of exercise of Civil Court's jurisdiction.
He reiterates, the interim order was obtained in absence of his client, in circumstances which are questionable. Now affidavits have come in and the position is clear on there being no dispute between defendant no.1 and his client. He reminds Court of clause 13 in the renewed annex agreement between plaintiff and defendant no.1, requiring plaintiff to obtain additional licence. As such, though coordinate Bench passed the interim order imposing tremendous hardship upon his client, it has now come forward with a case for vacating the same. In this regard, he relies on a Division Bench Judgment dated 1st May, 2018 of this Court in FMA 1369 of 2018 (FMAT 116 OF 2018) and CAN 1338 of 2018 (Aloke Kumar Banerjee and Ors. versus Rajib Guha and Ors.).3
The interim order was obtained and pursuant thereto adjournments, on plea of the suit of being an interpleader suit. He draws attention to section 88 in the Code of Civil Procedure being substantive provision regarding interpleader suit. He relies on judgment of a learned Single Judge of Bombay High Court in Mangal Bhikaji Nagpase versus State of Maharashtra reported in 1997 (2) Maharashtra Law Journal 55, paragraph 7. He submits, plaintiff cannot be heard on any claim after having obtained interim order on the basis of alternative prayer of the suit being an interpleader suit. If it asserts any interest in such a suit, the suit should be adjudicated to have failed. In such a suit, order has been obtained on quantification, which could not have been made, as made. The rate of royalty for licence to be granted by his client is determined by rule 56 of Copyright Rules, 2013. Plaintiff's purported alternative case, relied upon, of not knowing what it is to pay his client, is without basis. Plaintiff has its data base, from which net revenue and percentage thereof payable to his client can be ascertained but plaintiff obtained interim order on a ball point deposit and continues to enjoy the same thereafter. He submits, on affidavits there is no dispute between defendants. He reiterates plaintiff is asserting claim in an interpleader suit. The suit should be dismissed but first the order vacated. He submits, he will make a brief concluding submissions on adjourned date.
List on 8th July, 2019.
(ARINDAM SINHA, J.) D.Ghosh