Bombay High Court
Novex Communications Private Limited vs Serveall Land Developers Private ... on 4 December, 2018
Author: S.J.Kathawalla
Bench: S.J. Kathawalla
kpd 1 / 6 PD-NMCDL-2478-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
NOTICE OF MOTION (L) NO. 2478 OF 2018
IN
COMMERCIAL IP (L) NO. 1392 OF 2018
Novex Communications Private Limited ... Plaintif
Versus
Serveall Land Developers Private Limited ... Defendant
Dr. Birendra Saraf alongwith Mr. Rashmin Khandekar and Mr. Kunal Parekh
instructed by Dua Associates AOR, Mumbai for the Plaintif.
Mr. Mohit Khandelwal alongwith Ms. Pratiksha Agrawal for the Defendant.
CORAM : S.J. KATHAWALLA, J.
DATED : 4th DECEMBER, 2018 P.C.:
1. The Plaintif has filed the present Suit as an action for infringement of copyright in the Plaintif's sound recordings. It is the Plaintif's case that the Plaintif entered into Agreement and has obtained assignments of and exclusive control over copyright in sound recordings from (1) M/s. ZEE Entertainment Enterprises Limited (hereinafter for the sake of brevity referred to as "ZEE"); (2) M/s. Eros International Media Limited (hereinafter for the sake of brevity referred to as "EROS") and (3) M/s. Tips Industries Limited (hereinafter for the sake of brevity referred to as "TIPS"). The Plaintif has acquired rights in the "on ground public performance" of ::: Uploaded on - 13/12/2018 ::: Downloaded on - 29/12/2018 06:13:03 ::: kpd 2 / 6 PD-NMCDL-2478-2018.doc sound recordings as more particularly set-out in the said Agreement. The Plaintif has also entered into an Agreement with M/s. Yash Raj Films Private Limited (hereinafter for the sake of brevity referred to as "YRF") in respect of the repertoire of the said YRF.
2. Learned Advocate for the Plaintif submits that on 9th April 2018, the Defendant played a total of two sound recordings of the Plaintif. Further on 21 st July 2018 the Defendant conducted another event at "Aenigma" situated at the Defendant's Hotel "Marriot Jaipur" wherein the Defendant played a total of three sound recordings of the Plaintif. The Plaintif has annexed the CD's containing the recordings of the infringement by the Defendant at Exhibits G and I to the Plaint. The Plaintif has also annexed to the Plaint at Exhibits H and J, the Affidavits of the authorized representatives of the Plaintif who have recorded the aforesaid infringing acts of the Defendant. It is therefore submitted that the Defendant has committed infringement of copyright and that the Plaintif apprehends further infringement.
3. The Defendant has filed its Affidavit in Reply dated 22 ndOctober 2018 to the notice of motion. In the reply, the Defendant has primarily raised an objection as to the maintainability of the present Suit. The Defendant has contended that the present Suit is not maintainable since the Plaintif had already filed a Suit against the Defendant before the Additional Division Judge - 4 Jaipur in 2015 seeking similar reliefs and the said Suit was pending. It was contended that the Plaintif filed an application in the Rajasthan court seeking to withdraw the suit on the basis that the ::: Uploaded on - 13/12/2018 ::: Downloaded on - 29/12/2018 06:13:03 ::: kpd 3 / 6 PD-NMCDL-2478-2018.doc Defendant had approached them for settlement. Simultaneously, the Plaintif has filed the present suit in this Court. It was therefore contented that the present Suit is not maintainable and reliance was placed on Section 10 and 12 of the Code of Civil Procedure, 1908 as also on Order XXIII of the Code.
4. On merits, in the reply, except for bare denials, the Defendant did not raise any other contentions in the reply to the Notice of Motion.
5. Since an objection with respect to maintainability of the present Suit was raised by the Defendant, this Court on21st November 2018 passed the following order:
"The Learned Advocates appearing for the parties agree that they shall through their respective Advocates appear before the District Judge at Jaipur District on 26 th November, 2018 and make their submissions before the Court qua the Application filed by the Plaintiff seeking withdrawal of the Suit No. 217 of 2018 (144 of 2015) and the parties shall not seek any adjournment/s from the District Judge at Jaipur District. A copy of this order shall be produced before the Learned District Judge at Jaipur District on 26thNovember, 2018. Stand over to 3rd December, 2018."
6. Learned Counsel appearing on behalf of the Plaintif has tendered the Order dated 30thNovember 2018 passed by the Commercial Court No.1, Jaipur (Rajasthan) whereby the Plaintif was allowed to withdraw the said Suit with liberty to file a fresh Suit. He submits that in view thereof, the preliminary objection raised by the Defendant as regards maintainability of the present Suit does not survive.
7. I am of the view that Learned Counsel appearing on behalf of the Plaintif is correct in his submission that once the Suit filed in Jaipur bearing No. 143 of 2015 was ::: Uploaded on - 13/12/2018 ::: Downloaded on - 29/12/2018 06:13:03 ::: kpd 4 / 6 PD-NMCDL-2478-2018.doc allowed to be withdrawn with liberty of file a fresh Suit, the objection raised by the Defendant qua maintainability does not survive.
8. Despite having filed an Affidavit-in-Reply, except for bare denials, the Defendant has not raised any other contention on the merits of the case.However, Learned Advocate appearing for the Defendant opposed the reliefs sought. It was contended that "Marriot Hotels, Resorts and Suites" is a client of the Plaintif and in this regard also a screenshot of the Plaintif's website was shown. It was further submitted that the Defendant had further entered into an Agreement dated 24 th March, 2010 with Marriot Hotels India Pvt. Ltd. which records that while the Defendant was the owner of the Hotel, the same was being operated by Marriot Hotels India Pvt. Ltd. Therefore, it was submitted that the Defendant is not required to take a license from the Plaintif to exploit sound recordings of which the Plaintif is the owner or authorised agent.
9. I have considered the agreement tendered by Learned Counsel appearing for the Defendant dated 24thMarch, 2010, I do not see how the said agreement is of any assistance to the Defendant. The said agreement is an inter-se document executed between the Defendant and M/s. Marriot Hotels India Pvt. Ltd. This does not regulate the sphere of the Plaintif's claim at all. The learned counsel for the Defendant drew the attention of the Court to clause 11.13 of the agreement. The said clause has no bearing on the issues in the present suit. The said clause merely states that the Operator of the hotel is the owner of the Marriot trademark and will continue ::: Uploaded on - 13/12/2018 ::: Downloaded on - 29/12/2018 06:13:03 ::: kpd 5 / 6 PD-NMCDL-2478-2018.doc to vest with them. I fail to see what relevance the said agreement has to this case,What is relevant is the document tendered by Learned Counsel appearing on behalf of the Plaintif being a Memorandum of Understanding dated 16 thMay 2017 ("said MOU") executed between the Plaintif and the Defendant whereunder the Defendant had sought license from the Plaintif to exploit the Plaintif's copyright on the terms and conditions set-out therein. The said MOU was executed by the Defendant. The license was to be efective only after the amount agreed in the MOU was paid in full and realisation thereof. In fact, the Learned Counsel appearing on behalf of the Plaintif has further submitted that although the terms of the said MOU expired on 15th May 2018, the Defendant has not complied with the terms of the said MOU till date and therefore the license did not become efective. In any case, even the period stated in the MOU has expired. The Defendant has not disclosed the said MOU to this Court. Even in the course of arguments, the Defendant did not refer to the MOU. The MOU clearly shows that the Defendant has never disputed the rights of the Plaintif in its sound recordings and that the Defendant was required to obtain a license from the Plaintif to exploit such sound recordings. In fact, even today, the Defendant has neither in the pleadings not in the arguments, disputed the rights of the Plaintif.
10. Today, the Defendant does not have a valid license or permission from the Plaintif to exploit the Plaintif's sound recordings or allow them to be communicated to the public from its premises. The Defendant has not disclosed any other right to use ::: Uploaded on - 13/12/2018 ::: Downloaded on - 29/12/2018 06:13:03 ::: kpd 6 / 6 PD-NMCDL-2478-2018.doc the sound recordings of the Plaintif. There is no other defence raised by the Defendant. In such circumstances, the Plaintif has made out a strong prima facie case for grant of ad interim reliefs. The balance of convenience is in favour of the Plaintif. I am therefore satisfied that the case for ad-interim relief is made out in terms of prayer clause (a) and (d) of the Notice of Motion which are reproduced as under:
a. that pending the hearing and final disposal of this Suit, this Hon'ble Court be pleased to issue an order of injunction against restraining Defendant, its partners, directors, their servants, employees, agents, assignees, licensees, representatives, third party event management companies, third party event organizers or otherwise and/or any person claiming through them or acting on their behalf, from publicly performing or in any manner communicating the sound recordings/musical compositions of the songs assigned and authorised to the Plaintiff or allowing their premises or any premises under their control to be used for the said purposes, without obtaining non-exclusive public performance rights in sound recordings from the Plaintiff, or otherwise infringing the copyright in any work owned and protected by the Plaintiff;
b. that pending the hearing and final disposal of the suit, the Defendant herein be ordered and directed to maintain recordings of all sound recordings/musical compositions played at the Defendant's premises including but not limited to separate spaces marked for entertainment such as rooms, reception/lobby area, banquet halls, dance floors, discothèques, pub, bar and restaurant or any other premise/s and produce the same before this Hon'ble Court when directed.
11. The Plaintif to file its Rejoinder if any within two weeks from today. Place the Notice of Motion for hearing and final disposal on 22nd December, 2018.
( S.J.KATHAWALLA, J. ) ::: Uploaded on - 13/12/2018 ::: Downloaded on - 29/12/2018 06:13:03 :::