Kerala High Court
Sudheesh Kumar Aged 41 Years vs T.S.Jayakumar
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 30TH DAY OF MAY 2014/9TH JYAISHTA, 1936
FAO.No. 155 of 2014 ()
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(AGAINST THE ORDER DATED 11.04.2014 IN I.A.998/14 IN O.S.5/2014 ON THE FILE OF
THE V ADDL. DISTRICT JUDGE, ERNAKULAM)
APPELLANT(S)/PETITIONER:
-----------------------------------------
SUDHEESH KUMAR AGED 41 YEARS
S/O.BHASKARAN NAIR, VALIYAVEETTIL HOUSE, P.K.A.NAGAR
UNIVERSITY ROAD, CUSAT P.O, SOUTH KALAMASSERY
AT PRESENT RESIDING AT 18/49
JANAKI MANDIRAM NEAR IMA HOUSE
PERUMBAVOOR - 683 542
BY ADVS.SRI.T.KRISHNAN UNNI (SR.)
SRI.JAMSHEED HAFIZ
RESPONDENT(S)/RESPONDENTS:
----------------------------------------------------
1. T.S.JAYAKUMAR, AGED 45 YEARS
PROPRIETOR
M/S.J.K.PRODUCTIONS JAYA BHAVAN VATTIYOORKAVU
THIRUVANANTHAPURAM - 695 013.
2. ANIL GOPINATH, AGED 43 YEARS
THANAL, T.C.10/1673, KAIRALI NAGAR
MANNANTHALA THIRUVANANTHAPURAM - 695 015.
3. HANEESH PAVITHRAN @ HARISH M.P.,AGED 40 YEARS
T.C.11/665-2, SUBHI, NANDANKOD
KAVADIYAR THIRUVANANTHAPURAM AT PRESENT RESIDING AT T.C.16/1180
KARTHIKA, JAGATHI, THIRUVANANTHAPURAM -695 014.
4. SUVACHAN, AGED 45 YEARS
SREELEKHAM, KANNANKOD, PALLICHAL P.O
THIRUVANANTHAPURAM - 695 020.
R1-R4 BY ADV. SRI.T.RAMPRASAD UNNI
R1-R4 BY ADV. SRI.S.M.PRASANTH
R1-R4 BY ADV. SMT.AMMU CHARLES
R1-R4 BY ADV. SRI.K.MOHANAKUMAR (POOJAPPURA)
R1-R4 BY ADV. SRI.K.RAMAKUMAR (SR.)
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
26-05-2014, THE COURT ON 30.05.2014, DELIVERED THE FOLLOWING:
[CR]
B.KEMAL PASHA, J.
................................................................
F.A.0. No.155 of 2014
...............................................................
Dated this the 30th day of May, 2014
O R D E R
An action alleging literary piracy has been brought before the District Court, Ernakulam, in the form of a suit for injunction, by the appellant herein as plaintiff. The interlocutory application seeking an order of temporary injunction restraining the respondents herein from committing the alleged literary piracy, by way of making a film titled "Garbhasreeman", stands dismissed through the impugned order.
2. The case of the appellant is that somewhere in 2008, he wrote a story and prepared the script for a movie under the caption "Garbhasreeman", and the gist and idea F.A.O.155 of 2014 -: 2 :- behind the story belong exclusively to the appellant. He prepared the script in its entirety. In the year 2008 itself, the appellant had self registered the gist of the story by putting it in a sealed cover and sending it to his own address through registered post. The 3rd respondent herein is a friend of the appellant. The 4th respondent is a friend of the 3rd respondent. The appellant has no acquaintance with the 4th respondent. The 1st respondent is a Producer and the 2nd respondent is a Director. During the writing of the story and script itself, the appellant had made discussions with the 3rd respondent about the story, as he wanted to get himself introduced to the Directors and Producers for enabling him to have a discussion for cinematographing the story. The 3rd respondent, therefore, was well aware of the story written and the script prepared by the appellant. On many occasions, the appellant had read over and explained the story and script to many producers, leading actors and directors. They all, for some reasons, postponed the F.A.O.155 of 2014 -: 3 :- acceptance of the story for their film. While so, the appellant came to know from a cinema weekly, named "Vellinakshathram" dated 01.12.2013 that a film titled "Garbhasreeman" is going to be produced by the 1st respondent under the directorship of the 2nd respondent allegedly based on the main story written by the 3rd respondent. Immediately, he contacted respondents 2 and 3 and also the main actor in the proposed film and explained to them about his authorship of the story "Garbhasreeman". As it has come out that the 2nd respondent is going ahead with the film, the appellant made a complaint to the General Secretary of 'FEFKA' on 09.12.2013 pointing out the aforesaid facts. Since the appellant is not a member of 'FEFKA' they were unable to take action on the complaint of the appellant. The appellant could reliably learn that the respondents are making the film "Garbhasreeman" with some slight variations only from the story and script written by the appellant. The major portion of the story is a replica F.A.O.155 of 2014 -: 4 :- of the story and script written and prepared by the appellant. The actions of the respondents are nothing but clear literary piracy, and as the respondents have proceeded with the making of the film by overlooking the genuine objections of the appellant, the suit before the court below was filed by the appellant by reserving his right to initiate actions for damages.
3. The 2nd respondent filed a counter for himself, and for and on behalf of the 4th respondent, contending inter alia as follows: The 3rd respondent is a known story and script writer and his works were published in magazines and weekly. He is a friend of the 2nd respondent. The petitioner is not a script writer, whereas, he was an Assistant Director very long back. The 2nd respondent had severed connections with him, after the petitioner becoming accused in the case in connection with the murder of his father. The 3rd respondent gave him an idea regarding a man becoming pregnant. There is a story in Puranas regarding a member F.A.O.155 of 2014 -: 5 :- of a royal family who had married seven women, had still failed to get a child. At the demand of his wife he approached a Sage who gave him holy water to be consumed by his wives. At some point, he consumed the holy water as he became thirsty, thereby he became pregnant and his stomach had to be cut to take out the kid. With the same idea and that provided by the 3rd respondent, the 2nd respondent and the 4th respondent on obtaining the medical opinion, sat together and framed, designed and developed the story in a humorous way. The 4th respondent in his own handwork prepared the script of "Garbhasreeman".
4. The story narrated by the petitioner as "Garbhasreeman" is not connected with the story of "Garbhasreeman" produced by respondents 3 and 4. Respondents 2 and 4 had approached the 1st respondent and he agreed to produce the film. Pooja ceremony was conducted on 05.02.2014, synopsis of the story had been F.A.O.155 of 2014 -: 6 :- given in 'Vellinakshathram' daily and the shooting of the film has been completed. There can be no copyright in an idea. The characters, relations, scenes, climax and story of the respondents' film are entirely different from the story claimed by the petitioner. They have not infringed any copyright of the petitioner. The 1st respondent had spent lakhs of rupees for making the film and the same is now ripe for release. By the release of the film no substantial injury will be caused to the petitioner. The petitioner has no primace faice case. The balance of convenience is in favour of the respondents. The I.A. has been filed with ulterior motives.
5. Heard the learned Senior Counsel Sri.T.Krishnanunni for the appellant and the learned Senior Counsel Sri.K. Ramakumar for the respondents. The learned Senior Counsel for the appellant has argued that the story and the script relied on by the respondents to make the film "Garbhasreeman" is nothing but a verbatim reproduction of the story and script prepared by the F.A.O.155 of 2014 -: 7 :- appellant titled as "Garbhasreeman" in the year 2008. It is alleged that without the consent and authority of the appellant, the 3rd respondent, with the help of respondents 1 and 2 have utilised the substantial portions of the story and script prepared by the appellant and therefore, it is a clear case of literary piracy. The learned Senior Counsel for the respondents has argued that respondents have not infringed the copyright of the appellant and further argued that the characters, relations, scenes, climax and the story based on which the 1st respondent has produced the film titled "Garbhasreeman" are entirely different from the story being claimed by the appellant. It is also argued that the making of a cinematographic film cannot be an infringement of copyright. It has been further argued that the suit itself has become infructuous and the appellant has not cared to amend the plaint in order to seek better reliefs. The learned Senior Counsel for the appellant has pointed out that the suit was filed on 3.3.2014 and even though the appellant F.A.O.155 of 2014 -: 8 :- was running from pillar to post to get the relief in the matter, the IA was ultimately disposed of by the court below on 11.04.2014 only, which was the closing day for summer vacation. The court has just reopened and there is no meaning in contending that the appellant has not so far taken any steps for amending the plaint. It is also argued that it is not necessary to seek general or other reliefs which may always be given as the court may think just to the same extent as if had been asked for, under Order VII Rule 7 of the Code of Civil Procedure. It has been argued that the respondents cannot clamor by saying that the film has been completed during the pendency of the suit and that the suit has become infructuous.
6. In order to appreciate the rival claims of the parties relating to the story titled as "Garbhasreeman", the gist of the story being claimed by the appellant and the story on which the film "Garbhasreeman" has been made have to be gone through.
F.A.O.155 of 2014 -: 9 :- "Gist of the story of the appellant:
One Dr.V.K.V. Pandit from Australia came over to Kerala. He wanted to do research and to see whether a man can be subjected to pregnancy and whether a man can deliver a child after undergoing the period of pregnancy. He searches for a man who is ready to get subjected to his research work. It was at that stage he came into contact with a youth by name Bitto James. Bitto had a sister by name Maria. She was married but she has no issues. Bitto was in urgent need of a big amount to save a girl who met with an accident because of Bitto. Dr.Pandit tells him that if he is ready to co- operate with him and to get subjected to his research, he will pay the necessary amount. Initially Bitto was not willing for the same. Multi was a close friend of Bitto. He advised Bitto to agree to the terms of Dr.Pandit since both of them were fully aware of the fact that the research is going to fail. Ima Fernandez, a medical student was in love with Bitto. Bitto ultimately agrees to the offer of F.A.O.155 of 2014 -: 10 :- Dr.Pandit. He tells Ima that he is going to Vijayawada, for the purpose of continuing studies in MBA and he will be away for a few months. Ultimately to the surprise of all Bitto gets pregnant.
Interval...
Bitto and Multi get worried on the developments. They wanted Dr.Pandit to abort the pregnancy. Dr.Pandit refuses the request telling them that if an abortion is attempted, Bitto may lose his life even. Ima sees Bitto in the laboratory. On knowing about these facts, Ima wants to stop her relationship with Bitto. Bitto gets more and more worried. His health deteriorates. He was taken to the hospital for a surgery. By the time the issue gets media coverage. Ultimately the surgery ends successfully and Bitto gives birth to a child. The child was handed over to Maria, the sister of Bitto and her husband. Ima forgives Bitto and joins him."
F.A.O.155 of 2014 -: 11 :- "Gist of the story of the 4th defendant:
One Dr.Roy Mathew at Canada gets involved in a research as to whether a man can get impregnated and made to deliver a child. He wanted a victim for his research. His enquiries reached to a youth by name Sudheendran. Sudheendran has got a sister by name Vimala. Even though she is married she has no children. Sudheendran was in urgent need of a huge amount to pay off the debts created by his father. Dr.Roy offers Sudheendran that he will pay the amount provided Sudheendran agrees to be the victim for the research. Sudheendran originally was not inclined to accept the offer. One Gopalakrishnan was a fast friend of Sudheendran. He prompts Sudheendran to agree to the conditions of Dr.Roy. Ultimately Sudheendran agrees to the offer since he was sure that the research is going to fail. Sudheendran was in love with Malavika, a Nurse. Sudheendran tells her that he is going to Bangalore in search of a good job and he will not be available for two years.
F.A.O.155 of 2014
-: 12 :-
But to the surprise of Sudheendran and
Gopalakrishnan, Sudheendran gets
pregnant.
Interval...
Sudheendran and Gopalakrishnan get
worried about the developments. They
approached other Doctors and requested them to have to medically terminate the pregnancy. Since none of them agreed for the same, they ultimately approached Dr.Roy himself and requested him to terminate the pregnancy. Dr.Roy refuses to terminate the pregnancy on the ground that if the same is done that may cause even the death of Sudheendran. Malavika meets Sudheendran in the Laboratory. Knowing about these things, Malavika leaves Sudheendran. Sudheendran again makes request to Dr.Roy to do something in this matter and to save him. Dr.Roy tells him that he can transfer the pregnancy to another lady by a scientific method. Vimala, sister of Sudheendran was happy for the same. Ultimately by a surgery the pregnancy was transferred to Vimala. F.A.O.155 of 2014 -: 13 :- Vimala gives birth to a child after a few months. Malavika comes back to Sudheendran."
7. On going through the gist of the story being relied on by the appellant as his work and the gist of the story being relied on by the 4th respondent, on which production of the cinematographic film named "Garbhasreeman" has been allegedly completed, it can be seen that till the climax both versions are the same. It seems that different names are used and different places are mentioned. The story relied on by the appellant and the story relied on by the 4th respondent till its interval are the same. After the interval also, the story remains to be the same till the climax. The only difference that is discernible is the mode of giving birth of the child. In the story of the appellant the child is successfully taken out through a surgery and is being handed over to the sister of the hero, and thereafter the lover of the hero, who had departed him on coming to know F.A.O.155 of 2014 -: 14 :- about the pregnancy of the hero, rejoins him. In the story being relied on by the 4th respondent, the pregnancy of the hero is transferred to his sister and thereafter the sister gives birth to the said child, and then the lover of the hero, who had departed him on coming to know about the pregnancy of the hero, rejoins him. It is evident that the story being relied on by the appellant and the story being relied on by the 4th respondent as his own work, are one and the same. In order to make it different, minor variations are carried out in the mode of giving birth to the child. Apart from that, the mode of expression of the entire theme in both the versions, is the same. On a perusal of both the versions, it cannot be said that the resemblance and similarity of both the versions are mere accidental coincidences in developing that idea.
8. The next question is as to who had prepared the story and made it at first, has to be considered. Prima facie, it seems that the appellant had prepared the story and script F.A.O.155 of 2014 -: 15 :- in the year 2008 and he had effected the self registration of the same by putting it in Ext.A1(a) cover and sealed and sent it through registered post to himself. Ext.A2 is the script of "Garbhasreeman" written by the appellant. Ext.A1, which is dated 26.03.2008, is the story of "Garbhasreeman" for which self registration was made. Ext.A1(a) registered cover containing the story "Garbhasreeman" prepared by the appellant was opened by the court below. Either the 2nd respondent or the 4th respondent has any case that they have prepared the story and script of "Garbhasreeman" in the year 2008. Their admitted case is that they had prepared it during 2012. There is no dispute that the title of both the versions is "Garbhasreeman".
9. The learned Senior Counsel for the respondents relies on the decision in R.G. Anand v. M/s. Delux Films and others [AIR 1978 SC 1613] to fortify the argument that there can be no copyright in an idea. In the decision noted supra, it was held in paragraph 46 as follows:
F.A.O.155 of 2014 -: 16 :- "1. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted, work with some variations here and there it would amount to violation of the copy-right. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a F.A.O.155 of 2014 -: 17 :- violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff F.A.O.155 of 2014 -: 18 :- becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved."
10. It is trite that there cannot be a copyright in an idea. The experiment to know whether a man can become pregnant or a man can carry pregnancy, can be said to be an idea in which there cannot be a copyright. At the same time, when a story was written by the appellant with a particular mode of narration by developing the said idea as an expression in accordance with the figment of his imagination, it cannot be said that the story itself is an idea. When an idea is developed as a story, it is an imaginary F.A.O.155 of 2014 -: 19 :- work of that particular person who makes the story. In such case it becomes the manifestation of his own imagination, and it cannot be treated as a mere idea.
11. The main argument resorted to by the learned Senior Counsel for the respondents is that the relief sought for has become infructuous and therefore the I.A. and consequently the present F.A.O. are not maintainable. The relief sought for in the suit is mainly a decree of permanent prohibitory injunction restraining the defendants or anyone claiming under them from making any kind of creative works or cinematographic works by using the story and screenplay of the plaintiff which was written by him in the year 2008 named as "Garbhasreeman". In the affidavit filed in support of I.A.695 of 2014 filed by the respondents herein as petitioners, the 1st respondent has affirmed that the production of the film was registered with the Producers' Association on 17.05.2013, and the title was registered with the Film Chamber on 04.07.2013 . In October, 2013 the F.A.O.155 of 2014 -: 20 :- news of making the film was announced, on 05.11.2013 the songs were recorded, on 05.02.2014 the Pooja ceremony was conducted, on 26.02.2014 shooting was commenced, and on 03.03.2014 the agreement was executed with the distributor. It has been further affirmed that on 27.03.2014 the shooting was completed, on 29.04.2014 the certificate from the Censor Board was received for Trailer, on 01.05.2014 the songs were cleared by Censor Board, on 03.05.2014 clearance certificate from Film Chamber for release was obtained, on 03.05.2014 clearance certificate from the Producers' Association was obtained, and on 07.05.2014 the certificate from Censor Board was obtained. The learned Senior Counsel for the appellant has argued that even though it has been contended by the 1st respondent that the shooting was commenced on 26.02.2014, no records were produced to prove the said aspect. According to the 1st respondent, even though the shooting was completed on 27.03.2014, the present suit F.A.O.155 of 2014 -: 21 :- was filed on 03.03.2014. Even according to the 1st respondent, the shooting was commenced on 26.02.2014. This year, the month of February had only 28 days. 01.03.2014 is a Saturday and 02.03.2014 is a Sunday. The suit was filed on 03.03.2014. Therefore, it cannot be said that the suit was filed much belatedly after the commencement of the said shooting. Even after the filing of the suit, the shooting continued. By continuing with the shooting and completing it during the pendency of the suit, the respondents cannot be heard to contend that the shooting has been completed and therefore the reliefs sought for has become infructuous.
12. The learned Senior Counsel for the appellant has relied on the decision in Rameshwar and others v. Jot Ram and others [AIR 1976 SC 49] wherein the Apex Court by relying on the decision in P. Venkateswarlu v. Motor and General Traders [AIR 1975 SC 1409] has dealt with the adjectival activism relating to post-institution F.A.O.155 of 2014 -: 22 :- circumstances. It was held in paragraph 8 as follows:
"Two propositions were laid down. Firstly, it was held that 'it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding.' This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments can not defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree. The Court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action."
It was held in paragraph 9 as follows:
"The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought F.A.O.155 of 2014 -: 23 :- has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts."
It was further held therein as follows:
"It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage."
It was also held:
"Courts of justice may, when the compelling equities of a case oblige them, shape F.A.O.155 of 2014 -: 24 :- reliefs- cannot deny rights - to make them justly relevant in the updated circumstances Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. Venkateswarlu, AIR 1979 8C 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise such change in cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a F.A.O.155 of 2014 -: 25 :- statute cannot be divested by this equitable doctrine."
13. It has become trite that on account of subsequent reasons or developments after the filing of the suit, if the reliefs originally sought for has become obsolete or unserviceable or a new form of relief seems to be more efficacious, it is imperative on the part of the courts to mould the reliefs in such a manner so as to undo the injustice.
14. In a case wherein an interim injunction was granted to the plaintiff against the forcible eviction from the property in dispute and thereafter the defendants forcibly dispossess the plaintiff, the Punjab & Haryana High Court in Smt. Maya Devi and others v. Mehria Gram Dall Mill, Hissar and others[AIR 1986 Punjab & Haryana 176] held that in such case the court can grant relief of possession in view of the subsequent events. Further, the fact that the defendants have made improvements in the property would not also deprive the plaintiff of his right to restoration of F.A.O.155 of 2014 -: 26 :- possession. The said decision was rendered by relying on the decision in Kanakku Kumara Pillai Thanu Pillai v. Mathevan Mathevan reported in AIR 1963 Kerala 179(FB). It was held in Dewan Chand v. Kalyan Dass and others [1988 Punjab and Haryana 43] that in such case the amendment of plaint is not necessary(paragraph 6).
15. The learned Senior Counsel for the respondents has relied on the decision in Gujarat Bottling Co. Ltd. and other v. Coca Cola Company and others[(1995) 5 SCC 545] and has argued that since the relief is wholly equitable in nature, the appellant invoking the jurisdiction of the court has to show that he himself was not at fault and even if there is possibility of any loss, it could be compensated in terms of money and therefore, the relief by way of temporary injunction cannot be granted to the appellant. It is also argued that by spending huge amounts, a cinematographic film produced by the 1st respondent has been completed and in case of any hindrance to the release of the film, the F.A.O.155 of 2014 -: 27 :- respondents would be put to irreparable injuries.
16. The learned Senior Counsel for the appellant has invited the attention of this Court to the decision in R.M. Subbiah and another v. N. Sankaran Nair and another [AIR 1979 Madras 56], to show that in a case wherein an injunction was sought for against the infringement of copyright on the story 'Madanotsavam' the court instead of granting an injunction made the following directions:
"I direct the defendants to furnish a bank guarantee to the tune of Rupees 50,000/- to the satisfaction of II Asst. Registrar, High Court, Madras, on or before 23-5-1978, failing which the interim injunction granted by order dated 3.5.1978, will stand made absolute. If, however, the bank guarantee as directed above is furnished the interim injunction granted as stated above, will stand dissolved to the extent of the exploitation of the story 'Madanotsavam' for picturing the Telugu version by the second defendant and in other respects, the interim F.A.O.155 of 2014 -: 28 :- injunction granted will continue."
The appeal against the said order was unsuccessful. On the strength of the said order the defendants in the case completed the Telugu version of ''Madanotsavam' under the title "Amar Prem". When the film was about to be released, another application for injunction against its release was filed and the same was granted. The matter came up before the Division Bench and then the following directions were issued by the Division Bench:
"1. The defendants shall furnish a further Bank guarantee to the tune of 50,000/- to the satisfaction of the II Asst. Registrar, High Court, Madras on or before 21.7.1978;
2. The defendants shall file an account showing all their dealings between themselves and their distributors;
3. Cause an account to be furnished of all the moneys realised by the exhibition of the pictures, every quarter the first of such accounting to be made on or before 30.9.1978, F.A.O.155 of 2014 -: 29 :- and such filing of accounts should be done every quarter thereafter.
4. The accounts have to be filed in the office of the Original Side of the High Court, Madras, during the pendency of the suit. Failing compliance with any one of the conditions as above enumerated, the plaintiffs are at liberty to apply for further directions before the trial court."
17. It is a fact that the script prepared by the 4th respondent based on which the cinematographic film titled "Garbhasreeman" has been produced, is almost the verbatim reproduction of the story of "Garbhasreeman" written by the appellant during the year 2008. Even though the works of the cinematographic film are complete, it is evident that, the film has been completed during the pendency of the suit. In such a case, the court is not helpless in moulding proper reliefs in order to undo injustice meted out to the appellant. At the same time, when considering the fact that huge amount of money has been F.A.O.155 of 2014 -: 30 :- invested in the film project and the fact that the film is now ready for release, this Court is of the view that the equitable relief can be sufficiently compensated in terms of money. Therefore, the interim order granted by this Court in I.A.691/14 restraining the respondents from releasing, exhibiting and selling the right of the cinematographic film "Garbhasreeman" can be lifted on ensuring sufficient security from the respondents for securing adequate damages to the appellant, in case he ultimately proves his claim for damages in the matter.
18. Considering the facts and circumstances of this case, this Court is satisfied that the respondents can be called upon to furnish bank guarantee for 5 lakhs(Rupees five lakhs only) to be furnished before the court below as a pre-condition for lifting the interim order passed by this Court as aforesaid. On furnishing the said bank guarantee before the court below, the interim order passed by this Court shall stand vacated. The appellant is at liberty to apply F.A.O.155 of 2014 -: 31 :- for amending the plaint properly, if he is so advised.
19. The court below shall dispose of the suit as expeditiously as possible, by granting sufficient opportunity to the parties to adduce evidence. The bank guarantee shall continue to be alive till the disposal of the suit before the court below. It is made clear that the observations made by this court in this judgment are only for the purpose of this judgment. The court below shall dispose of the suit, quite untrammeled by any of the observations made by the court below in the impugned order or any of the observations made by this Court in this judgment, and shall decide the suit independently on merits.
In the result, this F.A.O. is disposed of with the following directions:
(1) The respondents shall furnish bank guarantee for 5 lakhs(Rupees five lakhs only) to the satisfaction of the court below, endorsed in the name of the court F.A.O.155 of 2014 -: 32 :- below, which should be valid till the disposal of the suit.
(2) The bank guarantee shall secure the claims of the appellant for damages, if any, ultimately proved.
(3) On furnishing the said bank guarantee, the interim order passed by this Court in I.A.691 of 2014 shall stand vacated.
B.KEMAL PASHA, JUDGE ul/-