Madras High Court
Vijay Milton vs Gos Entertainment Private Ltd And ... on 1 September, 2021
Author: Abdul Quddhose
Bench: Abdul Quddhose
C.S. (Comm. Div.) No.254 of 2023
O.A. No.910 of 2023
and
C.S. (COMM. DIV.) No.254 of 2023
ABDUL QUDDHOSE, J.
Vijay Milton ... Applicant /
Plaintiff
vs.
1. GOS Entertainment Private Ltd and another ... Respondents /
Defendants
-----
The suit has been filed for a bare injunction to restrain the respondents / defendants from releasing the web series by name “GOLI SODA – THE RISING”, hereinafter referred to as the subject web series. The plaintiff claims to be the copyright holder of the subject web series. The plaintiff claims to be the Director and Writer of the subject web series. According to the plaintiff, he has completed 11 episodes of the web series but despite the same, the 1st respondent / 1st defendant has arbitrarily and illegally terminated his services without payment of his entire remuneration. Pursuant to the said termination which according to the plaintiff is illegal, the present suit has been filed for a bare injunction to restrain the respondents / defendants from releasing the subject web series.
https://www.mhc.tn.gov.in/judis 1/17 C.S. (Comm. Div.) No.254 of 2023
2. The 1st respondent / 1st defendant is a Company which has entered into a contract with the plaintiff, though the same is an unstamped agreement. The 2nd respondent / 2nd defendant, an OTT platform has engaged the services of the 1st respondent / 1st defendant for the production of the subject web series.
3. However, according to the 1st respondent / 1st defendant, the plaintiff has committed breach of contract on account of the following :-
a) Refusing to sign the agreements with the 1st respondent / 1st defendant despite agreeing to the terms and conditions;
b) Not abiding by the shooting schedule;
c) Seeking for increase in consideration arbitrarily;
d) Misrepresented to the 1st respondent that he is vested with the copyright for the web series “GOLI SODA – THE RISING”;
e) Technical errors committed by the plaintiff in the completion of the episodes for the subject web series.
https://www.mhc.tn.gov.in/judis 2/17 C.S. (Comm. Div.) No.254 of 2023
4. The aforesaid contentions of the 1st respondent / 1st defendant has been disputed by the applicant / plaintiff, who would state as follows :-
a) The copyright is vested exclusively with the plaintiff;
b) There is no valid assignment of copyright in favour of the 1st respondent / 1st defendant as per Section 19 of the Copyright Act, 1957;
c) The plaintiff has not been engaged on work on hire basis by the 1st respondent / 1st defendant and
d) Breach of contract has been committed only by the 1 st respondent / 1st defendant.
5. Heard Mr.Vijayan Subramanian, learned counsel for the applicant / plaintiff; Ms.R.Sahana, learned counsel for the 1st respondent /1st defendant and Mr.P.S. Raman, learned Senior Counsel assisted by Ms.Nandini Murali, learned counsel for the 2nd respondent / 2nd defendant.
6. The learned counsel for the applicant / plaintiff drew the https://www.mhc.tn.gov.in/judis 3/17 C.S. (Comm. Div.) No.254 of 2023 attention of this Court to the documents filed along with the plaint and relying upon the same, he would submit that the agreements relied upon by the 1st respondent / 1st defendant are unstamped agreements and therefore, they are inadmissible in evidence. According to him, the plaintiff never entered into a stamped agreement with the 1st respondent / 1st defendant. In support of his contention, the learned counsel for the applicant / plaintiff has relied upon Section 35 of the Indian Stamp Act, 1899 and would submit that being unstamped agreements, which the 1st respondent /1st defendant relies upon, the same is not admissible in evidence.
7. The learned counsel for the applicant / plaintiff also drew the attention of this Court to the stamped agreements sent by the 1st respondent / 1st defendant subsequently to the applicant / plaintiff, which were not signed by the applicant / plaintiff but has been signed only by the 1st respondent / 1st defendant. He would submit that it goes to show that the plaintiff never agreed to the terms and conditions of the Unsigned Writer Agreement, dated 01.09.2021, Unsigned Director Agreement, dated 28.01.2022 and Unsigned Deed of Agreement, dated 03.01.2022.
https://www.mhc.tn.gov.in/judis 4/17 C.S. (Comm. Div.) No.254 of 2023
8. The learned counsel for the applicant / plaintiff also drew the attention of this Court to the agreement sent by the plaintiff to the 1st respondent / 1st defendant through his E-mail, dated 19.07.2023. He would submit that the terms and conditions contained therein are the terms and conditions agreed upon by the applicant / plaintiff. However, according to him, the draft agreement sent by the plaintiff through his E- mail, dated 19.07.2023 was not approved by the 1st respondent / 1st defendant by signing the same.
9. The learned counsel for the applicant / plaintiff would also refer to the termination notice sent by the 1st respondent / 1st defendant through their lawyers on 27.08.2023 terminating the contract of the plaintiff. According to him, the termination is unilateral, arbitrary and illegal.
10. He also drew the attention of this Court to the reply dated 09.09.2023 and 27.09.2023 to the legal notice dated 27.08.2023 sent by the 1st respondent / 1st defendant through their lawyers. According to the learned counsel for the applicant / plaintiff, no breach of contract has been committed by the plaintiff as claimed in the termination notice https://www.mhc.tn.gov.in/judis 5/17 C.S. (Comm. Div.) No.254 of 2023 dated 27.08.2023.
11. On the other hand, the learned counsel for the 1st respondent /1st defendant would reiterate the contents of the counter affidavit filed by the 1st respondent / 1st defendant in this application. In addition to that, the learned counsel for the 1st respondent / 1st defendant would submit the following :-
a) There is no necessity for stamping of the agreements in the case of an Assignment as per Section 3 read with Article 23 of the Schedule I of the Indian Stamp Act, 1899;
b) The Applicant / plaintiff has been engaged only on work on hire basis and therefore, the applicant / plaintiff cannot claim copyright over the subject web series. The same has also been admitted in the affidavit filed in support of this application.
c) As seen from the e-mail, dated 27.05.2023 sent by the applicant /plaintiff, it is clear that he has been engaged only on work on hire basis
d) The entire work pertaining to the subject web series has been commissioned only by the 1st respondent / 1st defendant and therefore, the copyright is vested only with them.
e) No single penny has been invested by the applicant / plaintiff.
https://www.mhc.tn.gov.in/judis 6/17 C.S. (Comm. Div.) No.254 of 2023 The entire consideration / investment has been made only by the 2nd respondent / 2nd defendant. Therefore, the applicant / plaintiff cannot claim copyright over the subject web series.
f) Deliberately, the applicant / plaintiff has not signed all the agreements despite the fact that they have agreed to the terms and conditions contained in the same and he has approached the Court with unclean hands.
g) If the interim injunction is granted, it will amount to granting the main relief. The applicant / plaintiff has not filed the suit for declaration to declare that he is the owner of the copyright, but he has filed only a bare injunction suit, which is not maintainable. The applicant / plaintiff has not challenged the termination notice which has been issued by the 1st respondent / 1st defendant.
12. By way of reply, the learned counsel for the applicant / plaintiff drew the attention of this Court to an E-mail, dated 31.03.2023 sent by the 2nd respondent /2nd defendant to the 1st respondent / 1st defendant, wherein it has been disclosed that there has been delay only on the part of the 1st respondent / 1st defendant. Therefore, he would submit that for the breach committed by the 1st respondent / 1st defendant, the applicant / plaintiff cannot be held responsible. https://www.mhc.tn.gov.in/judis 7/17 C.S. (Comm. Div.) No.254 of 2023
13. Discussion :-
The following facts are undisputed :-
a) The 1st respondent / 1st defendant has terminated the contract of the applicant / plaintiff through its legal notice dated 27.08.2023.
b) The applicant / plaintiff has not invested any money towards the subject web series, which is the subject matter of the dispute. The entire investment has been made only by the 2nd respondent / 2nd defendant.
The 1st respondent / 1st defendant is a production house appointed by the 2nd respondent / 2nd defendant, who has engaged the applicant / plaintiff for the purpose of doing certain services for the production of the subject web series.
c) The applicant / plaintiff has admittedly not completed all the episodes of the subject web series. Even according to the applicant / plaintiff, he has completed only 11 episodes and only in respect of 7 episodes, the dubbing work has been completed and the same is ready to be broadcasted. However, the same is disputed by the respondents / defendants, who would categorically assert that the applicant / plaintiff has committed breach of contract by not adhering to the terms and conditions agreed upon. According to the respondents / defendants, the https://www.mhc.tn.gov.in/judis 8/17 C.S. (Comm. Div.) No.254 of 2023 breach of contract committed by the applicant / plaintiff are as follows :-
a) The applicant / plaintiff has refused to sign the agreements despite the fact that he has agreed to the terms and conditions of the same.
b) Despite having not signed the agreements, the applicant / plaintiff has raised arbitrary invoices on the 1st respondent / 1st defendant towards his remuneration.
c) The applicant / plaintiff has mis-represented that he has the copyright for the cinematographic film “GOLI SODA: THE RISING”
d) Unreasonably and arbitrarily, the applicant / plaintiff has sought for increase in his remuneration from Rs.18lakhs to Rs.35lakhs per episode despite the fact that he has agreed to receive only Rs.18lakhs per episode.
e) Negligence and unprofessional behaviour of the applicant / plaintiff during the course of his engagement.
f) The applicant / plaintiff has been engaged only on work on hire basis and he cannot claim ownership of the copyright in respect of the subject web series.
14. Only on the aforementioned grounds, the services of the applicant was terminated by the 1st respondent / 1st defendant through its https://www.mhc.tn.gov.in/judis 9/17 C.S. (Comm. Div.) No.254 of 2023 termination notice sent through their lawyers.
15. The applicant / plaintiff has filed the suit only for a bare injunction. When a categorical assertion has been made prior to the filing of the suit as seen from the termination notice that the applicant / plaintiff is not the owner of the copyright in respect of the subject web series, the applicant / plaintiff ought to have filed a suit for declaration seeking to declare that he is the absolute owner of the copyright in respect of the subject web series, but he has filed only a bare injunction suit. The interim relief sought for in this application is identical to the main relief sought in the suit. If the same is granted by this Court, it will amount to granting the main relief in the suit. Before granting interim injunction, the applicant / plaintiff will have to satisfy the three cardinal tests. They are :
a) Prima facie case
b) Balance of convenience and
c) Irreparable Hardship
16. In the instant case, admittedly, the applicant / plaintiff has not invested any sum of money for the production and release of the subject web series. The entire investment has been made admittedly only by the https://www.mhc.tn.gov.in/judis 10/17 C.S. (Comm. Div.) No.254 of 2023 2nd respondent / 2nd defendant which runs to several crores of rupees. It is also represented by the 2nd respondent / 2nd defendant that they have engaged the services of a different Director / Writer in lieu of the applicant / plaintiff on account of the breach of contract committed by the applicant / plaintiff. Necessarily, the web series will have to be completed and if the same is not completed, the 2nd respondent / 2nd defendant who has invested huge amount of money will be put to irreparable loss. If at all the applicant / plaintiff has suffered losses due to any breach of contract committed by the 1st respondent / 1st defendant, he can redress the same by way of damages. This Court is only deciding an interlocutory application and is not deciding the main suit. There are several triable issues involved in the suit viz., as to whether the applicant / plaintiff was engaged on work on hire basis or not. If that is found to be true, the applicant / plaintiff cannot claim copyright over the subject web series. The claim of the applicant / plaintiff that he is the owner of the copyright in respect of the subject web series cannot be decided at the interlocutory stage that too when several documents have been filed by the respondents / defendants in support of their contention that the applicant / plaintiff has been engaged only on work on hire basis. Admittedly, the applicant / plaintiff has not signed all the agreements https://www.mhc.tn.gov.in/judis 11/17 C.S. (Comm. Div.) No.254 of 2023 though the same is unstamped.
17. The learned counsel for the applicant / plaintiff has relied upon Section 35 of the Indian Stamp Act, 1899 to submit that being an unsigned agreement, the same is inadmissible in evidence. However, the learned Senior Counsel for the 2nd respondent / 2nd defendant during the course of his arguments would submit that there is no necessity for an Assignment Agreement being stamped as it is exempted as seen in Section 3 read with Article 23 of the Schedule I of the Indian Stamp Act, 1899, which reads as follows :-
23. CONVEYANCE :.......
Exemption
a) Assignment of copyright by entry made under the Indian Copyright act, 1847, section 5.
18. He would submit that an Assignment Agreement is exempted from payment of stamp duty as per the Article 23 of the Schedule I of the Indian Stamp Act, 1899. However, the same is disputed by the learned counsel for the plaintiff. However as on date, there is no material produced by the learned counsel for the applicant / plaintiff to disprove https://www.mhc.tn.gov.in/judis 12/17 C.S. (Comm. Div.) No.254 of 2023 the contention of the learned Senior counsel appearing for the 2nd respondent / 2nd defendant.
19. Section 17(b) of the Copyright Act, 1957 states that in case, a cinematographic film has been made for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary be the first owner of the copyright.
20. Section 17(c) of the Copyright Act, 1957 also states that in the case of a work made in the course of the author's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the contract.
21. The 1st respondent / 1st defendant claims to be the employer and the author of the copyright of the subject web series as according to them, the applicant / plaintiff was engaged by them only on work on hire basis. However, the same is disputed by the applicant / plaintiff, who would claim that he is the owner of the copyright for the subject web series. Both the contesting parties have filed documents to prove their https://www.mhc.tn.gov.in/judis 13/17 C.S. (Comm. Div.) No.254 of 2023 respective contentions. There is no clinching documentary evidence available on record to prove that the applicant / plaintiff is the owner of the copyright for the subject web series. Only after trial through the oral and documentary evidence available on record, truth can be unearthed.
22. The applicant / plaintiff claims that the copyright has not been assigned to the 1st respondent / 1st defendant for the subject web series by him. However, the same is disputed by the 1 st respondent / 1st defendant would categorically contend that the applicant / plaintiff has been engaged only on work on hire basis. There are several triable issues involved which cannot be adjudicated in an interlocutory application and can be adjudicated only after trial.
23. It is also to be noted that being a Commercial suit, strict time lines are fixed for completion of trial and for adjudication of the suit as per the provisions of the Commercial Courts Act, 2015. When triable issues are involved in the suit, the question of granting interim injunction in favour of the applicant / plaintiff as sought for in this application will not arise. If the interim injunction is granted in favour of the applicant / plaintiff and in case, the respondents / defendants succeeds in the main https://www.mhc.tn.gov.in/judis 14/17 C.S. (Comm. Div.) No.254 of 2023 suit by disproving the contentions of the applicant / plaintiff, they will be put to irreparable loss and hardship.
24. As observed earlier, the plaintiff has not been able to establish before this Court at this stage that he is having a prima facie case, balance of convenience and that he has suffered irreparable hardship. Since the trinity tests has not been satisfied by the applicant / plaintiff, the question of granting interim injunction by this Court in this interlocutory application will not arise. Even though, the learned counsel for the applicant / plaintiff during the course of his submission relied upon Section 57 of the Copyright Act , 1957, which gives the author of the copyright special rights, the same cannot be adjudicated at this interlocutory stage as the plaintiff has not been able to establish at this interlocutory stage that he is the owner of the copyright of the subject web series. As seen from Section 2(d) of the Copyright Act, 1957, which has been relied upon by the learned Senior Counsel for the 2 nd respondent / 2nd defendant which says that an author of the copyright means in the case of a cinematographic film is the Producer. In the instant case the Producer is admittedly the 2nd respondent / 2nd defendant. The contentions of the applicant / plaintiff cannot be adjudicated in this https://www.mhc.tn.gov.in/judis 15/17 C.S. (Comm. Div.) No.254 of 2023 interlocutory application stage, but can be decided only after trial.
25. For the foregoing reasons, this Court is not inclined to grant the interim injunction as prayed for in this application as the applicant / plaintiff has not made out a prima facie case and he has also not established balance of convenience and irreparable hardship in his favour. On the other hand, the balance of convenience is only in favour of the respondents / defendants. Accordingly, O.A. No.910 of 2023 is dismissed.
26. Post the matter for filing of written statement by the defendants on 07.02.2024.
10.01.2024 Note : Issue order copy on 11.01.2024 vsi2 https://www.mhc.tn.gov.in/judis 16/17 C.S. (Comm. Div.) No.254 of 2023 ABDUL QUDDHOSE, J.
vsi2 O.A. No.910 of 2023 and C.S. (COMM. DIV.) No.254 of 2023 10.01.2024 https://www.mhc.tn.gov.in/judis 17/17