Delhi District Court
Super Cassettes Industries Private ... vs Digital Cable Network on 7 May, 2025
IN THE COURT OF SH. NIKHIL CHOPRA, DISTRICT
JUDGE (COMMERCIAL COURT)-06, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI
CS (Comm) No.1234/2023
CNR No. DLCT01- 012674 -2023
Super Cassettes Industries Pvt. Ltd.,
E-2/16, White House, Ansari Road,
Daryaganj, New Delhi-110002.
Through Authorized representative
Sh. Manmohan Bhardwaj
......Plaintiff
Versus
M/s Digital Cable Network,
Having its office at 3rd Floor,
Mangal Apartment, Bhairav Mandir,
Krishna Nagar, Distt. Haridwar,
Uttarakhand.
....Defendant
Date of Institution : 15.09.2023
Final arguments : 30.04.2025
Date of decision : 07.05.2025
EX-PARTE JUDGMENT
1.Judgment disposes off a commercial suit for permanent injunction against infringement of copyright and damages.
2. Shorn of avoidable details, the case of the plaintiff is CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.1 of 24 Digital Cable Network that it is a private limited company having its registered office at Ansari Road, Daryaganj. Sh. Manmohan Bhardwaj is the constituted authority and has also been authorized to file the present suit in terms of resolution dated 27.01.2023. The plaintiff is stated to have been originally established in the year 1983 as a Private Limited Company and became a deemed public limited company under the Companies Act in the year 1988-1989. Subsequently, the plaintiff again converted into a Private Limited Company w.e.f. 11.06.2024. It is stated to be one of the India's leading and most reputed music companies and its label- 'T-SERIES' is regarded as one of the top names in the field of films and music industries and is now also regarded as top producers and distributors of films in India. The plaintiff is also stated to have developed the state of art facility for recording music and has a number of exclusive recording arrangement with well known artists and singers. The plaintiff has also initiated Music Bank, first in the country, a Storehouse of old and new titles. Besides, it is averred that the plaintiff had launched and/or supported some of the biggest names in the music industry and has also produced biggest blockbuster hits in the field of Indian cinema.
3. As regards the original work produced on behalf of the plaintiff, it is the corporate author of the first owner of copyright in the sound recordings as well as audio visual CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.2 of 24 Digital Cable Network works. It is averred that the plaintiff has also acquired copyright in all the literary, musical and other works which it commissions and manages by way assignments from authors and/or other prior owners of copyright in the same. The plaintiff, it is further averred, owns large repertoire of copyrighted works comprising cinematographic films and sound recordings as well as underlying musical and literary works. The plaintiff's lable- 'T-SERIES' has over 20,000 Hindi films and non-film songs as well as more than 50,000 songs in the regional languages to its credit.
4. The plaintiff is stated to own copyrights in the songs 'jab jab pyar pe' from the film 'Sadak', the song 'Ek do Teen Film Version' from the film 'Baaghi-2', the song 'Party All Night' from the film 'Boss', the song 'Aye Mere Humsafar ' from the film/album 'Qayamat Se Qayamat Tak' etc. and had assignment deeds/copyright certificates in this respect. By virtue of being owner of the copyright, the right under Section 14 of the Copyright Act, 1957 flow to the plaintiff, including but not limited to communicating the work in question to public under the provisions of Section 14(1)(a)(iii) as regards the literary and music work, Section 14(1)(d)(iii) as regards cinematography film and Section 14(1)(e)(iii) as regards sound recordings.
5. It is averred that the public generally and easily identifies the plaintiff's repertoire since all the CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.3 of 24 Digital Cable Network CDs/DVDs/VCDs prominently displaying the logo of the plaintiff's label- 'T-SERIES'. Besides, in terms of the requirements of Section 52A of the Copyright Act, such products contain a notice as to the plaintiff's ownership of the copyright.
6. The plaintiff is stated to have a robust and well defined business licensing policy enabling third party organizations including telephone broadcasting organizations, FM radio channel and cable television operators to apply for and obtain licences for use of its copyrighted works comprising of cinematograph films, sound recordings and underlying musical and/or literary work. The plaintiff actively pursues its policy and licensing constitutes a major portion of the business of the plaintiff. It is averred that the plaintiff has executed various licencing agreements for use of its copyrighted works with various media entities and network of channels. The plaintiff is also stated to be granting licences to Multi- System Operators and Cable Television Operators, who operate their own cable network channels. It is averred that to check the unauthorized use/infringement, the plaintiff carries out random monitoring of television channels and had also been diligent in protecting its intellectual property rights by means of legal actions against such borrowers.
7. The defendant is stated to be carrying on the CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.4 of 24 Digital Cable Network business of providing cable TV services under the name and style of 'M/s DIGITAL CABLE NETWORK' and has various subscribers in the State of Uttrakhand, including the city of Haridwar and is one of the largest ground cable network providers of the State. The defendant is stated to have more than 25,000 connections as per the survey conducted by the investigator/AR for the plaintiff company. The Investigator for the plaintiff company is stated to have made sample recordings of the contents being broadcasted/telecasted by the defendant through its ground cable network in Haridwar, Uttarakhand during his visit. It is also averred that he made equiries from the local people about the connectivity of the defendant, and came to know that the defendant has approximately 25,000 connections and is a leading cable operator. The defendant is stated to be using its local channel such as DCN, whose mark is prominently displayed on the top right hand corner of the screen. The defendant provides services such as Non-stop music/entertainment wherein Hindi songs/ devotional songs from commercial films/ albums are broadcasted exclusively and freely. The business model of the defendant is to operate non-stop music channel to enhance viewership amongst its subscribers and to increase the revenue generation through advertising. The defendant is broadcasting/communicating to the public the sound recordings, the underlying works and audio visual songs as well as other works of the plaintiff through its cable CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.5 of 24 Digital Cable Network network channels like "DCN" without obtaining any licence or permission from the plaintiff, amounting to infringement of the copyright of the plaintiff. Such infringement is causing enormous loss of revenue to the plaintiff in shape of licensing fee.
8. It is averred that in the course of random monitoring of channel, on a sample basis, in the month of September, 2022, the plaintiff came to know that the defendant was unauthorizedly utilizing and broadcasting musical audio visual works of the plaintiff, and without any license of permission. AR for the plaintiff has made certain recordings of infringement material at local friend's house at Govindpuri, Haridwar, Uttarakhand on 08.09.2022, where a TV was installed and the defendant was providing cable network. The recording shows that the defendant has been broadcasting audio visual clips of the various songs mentioned hereinabove through local channel such as DCN.
9. It is further averred that in respect of the songs copyright whereof vests with the plaintiff, the defendant, had removed/over shadowed 'T-SERIES' logo while broadcasting the contents of its channel and has shown its own logo on the right hand top corner of the screen with malafide intention and ulterior motive. The defendant had been broadcasting the said songs to the public, with CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.6 of 24 Digital Cable Network ulterior motive and sole object of making illicit financial gains without recognizing the copyright of the plaintiff.
10. The plaintiff served a letter dated 22.12.2022 upon the defendant which, as per the tracking report, stood served but the defendant failed to take appropriate license and continued illegal and unauthorized use. The plaintiff issued a legal notice dated 07.01.2023 asking the defendant to cease and desist from broadcasting/communicating to the public the sound recordings and underlying works as well as audio visuals songs, the copyright whereof is owned by the plaintiff and to pay the damages to the tune of Rs.25,00,000/- on account of unauthorized use. The said legal notice was sent to the defendant through Speed Post, however, the same was received back with the remarks "REFUSED". It is averred that the defendant has full knowledge of the contents of the Legal Notice and had communicated the concerns of the plaintiff company on its channels on 08.09.2022, however, the defendant did not stop using the plaintiff's copyright work or approach the plaintiff for obtaining a cable license to broadcast the works of the plaintiff.
11. The defendant is one of the largest cable TV operators in the State of Uttarakhand, including the city of Haridwar having more than 25,000 CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.7 of 24 Digital Cable Network subscribers/connections in the area and has been actively infringing the works of the plaintiff. The plaintiff, it is further averred, is claiming to damages to the tune of Rs.25,00,000/- though entitled to much higher amount on account of the fact that the license fee per connection per house is Rs.18/- per month apart from applicable taxes.
12. While claiming cause of action to have accrued on several dates including the date of serving the legal notice dated 07.01.2023; and on 15.03.2023, when the plaintiff had filed the Pre-Mediation Claim before Central District Legal Services Authority as well as on 05.07.2023 when the Non-Starter Report was issued by the Central District Legal Services Authority; and further claiming that the cause of action continues to accrue in view of the defendant's continuing with telecasting/broadcasting the copyrighted content of the plaintiff; and further claiming that this Court has the territorial jurisdiction under Section 62(2) of the Copyright Act, 1957 and that the subject matter is a commercial dispute, the plaintiff has prayed for a decree of permanent injunction restraining the defendant from infringement as well as a decree of damages to the tune of Rs.25,00,000/- together with costs.
13. As transpires from the record, the suit came up for hearing first time on 15.03.2023 before the Ld. Predecessor. As transpires from the order dated CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.8 of 24 Digital Cable Network 27.05.2024, the defendant was to found to have refused as per report on the speed post covers and unserved with remarks "No such firm exists at the given address", as recorded on the other speed post cover". Fresh service was directed. The defendant was also directed to be served through publication in 'Amar Ujala' as well as through the Offices of Ld. District Judge, Haridwar, Uttarakhand.
14. The defendant was served by means of publication in 'Amar Ujala' edition dated 22.06.2024. Since none appeared on behalf of the defendant, the defendant was proceeded Ex-Parte in terms of order dated 15.07.2024. Vide the same order, following issues were framed for Ex- Parte evidence of the plaintiff:-
i.Whether the plaintiff is the owner/copyright holder in respect of the audio video contents being relied upon by the plaintiff? OPP ii. Whether this Court has the territorial jurisdiction to try and entertain the present suit? OPP iii. Whether the defendant has violated the copyright of the plaintiff by means of unauthorized telecast of the content owned by the plaintiff, if so its effect? OPP iv.Whether the plaintiff is entitled for permanent injunction and damages, as prayed for? OPP v. Relief.
15. As transpires from the record, on the next date of hearing i.e. 19.09.2024, Sh. Neeraj Sharma, Advocate and Sh. Siddharth Aggarwal, Advocate, had put in appearance CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.9 of 24 Digital Cable Network through VC and personally, respectively, for and on behalf of the defendant. The plaintiff was directed to supply the paper book. Although, the witness was present, his cross- examination was deferred in view of the appearance of the defendant side. Matter was subsequently taken up on 06.11.2024. However, as no application for setting aside the Ex-Parte order was filed, the Court proceeded with recording of recording of the plaintiff's evidence, and PW-1 was cross-examined in part.
As transpires from the said order sheet for 06.11.2024, the plaintiff side has objected on the ground that the Counsel appearing on behalf of the defendant should clarify as to whether his appearance is on behalf of "M/s. Digital Cable Network" or "M/s. Digital Cable TV Network". The objection, considering the stand taken by the Ld. Counsel appearing for the defendant, was kept open for consideration. Ld. Counsel was, accordingly, asked to clarify his stand as to whether he appears for "M/s. Digital Cable TV Network" or "M/s. Digital Cable Network".
As transpires from the order dated 04.12.2024, Sh. Neeraj Sharma, Advocate had taken a stand that he appears for "M/s. Digital Cable TV Network". Having regard to the fact that the same did not conform with the description of the defendant in the present suit i.e. "M/s. Digital Cable Network", the Ld. Counsel appearing for the defendant was asked to clarify his stand. Reference to the relevant CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.10 of 24 Digital Cable Network portion of the order dated 04.12.2024 appears to be desirable:-
"At this stage, learned counsel for the defendant states that he appears for 'Digital Cable T.V. Network', which does not conforms to the description of the defendant in the present suit i.e. 'Digital Cable Network'.
Learned counsel for the defendant states that he had certain justified reasons for not taking a stand whether he appears for the present defendant i.e. 'Digital Cable Network' or not.
The Court is of the view that it would be necessary for the defendant side to take a definite stand qua the question as to whether he appears for 'Digital Cable Network' or 'Digital Cable T.V. Network' in as much as, the plaintiff side stresses upon the fact that 'Digital Cable T.V. Network' is not a party to the present suit and thus, the defendant side cannot proceed with the cross- examination without clarifying the issue.
Matter to now come for consideration on this aspect on 18.12.2024. The cross examination of PW-1 would be conducted after consideration of this aspect."
16. On 18.12.2024 i.e. the next date of hearing, the plaintiff side clarified that the description of the defendant i.e. "Digital Cable Network" is the correct description and also stated that the "Digital Cable TV Network" is not a party to the present suit. Ld. Counsel who had been appearing for the defendant is also found to be stating that he has not appeared for "Digital Cable Network" and he has instructions only qua "Digital Cable TV Network". Having regard to the fact that "Digital Cable TV Network"
is not a party, the Court held that the appearance for and on CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.11 of 24 Digital Cable Network behalf of "Digital Cable TV Network" is not warranted.
17. The relevant portion of the order dated 18.12.2024 is reproduced as under:-
"Considering the stand taken by the learned counsel appearing for the defendant on the said date, this Court had sought clarification qua question that whether the defendant is "Digital Cable T.V. Network" or "Digital Cable Network"
alone.
Learned counsel appearing for the plaintiff states at Bar that he has clear instructions that the description of the defendant 'Digital Cable Network' is a correct description and 'Digital Cable TV Network' is not a party to the present suit. Sh. Neeraj Sharma, Advocate, who had been appearing for and on behalf of the defendant sofar states that as per his client's instructions, he is not to appear for 'Digital Cable Network' the defendant herein, and he has instructions only qua 'Digital Cable TV Network'.
Attention of the Court is invited towards Vakalatnama filed for and on behalf of 'Digital Cable TV Network' The defendant, as per plaintiff's stand, is 'Digital Cable Network', and thus, the appearance for and on behalf of'Digital Cable TV Network' is not warranted in the given facts and circumstances.
Considering the above, the question of further cross examination of PW-1 for and on behalf of 'Digital Cable TV Network' does not arise. It is the submission of learned counsel for the plaintiff that the cross examination so far conducted be, accordingly, taken off the record and not to be considered, which is disputed by Sh. Neeraj Sharma, Advocate.
The Court is of the view that the said question would be taken up at the stage of final arguments. As of now, since Sh. Neeraj Sharma, Advocate is not appearing for 'Digital Cable Network', the matter to proceed ex-parte as against 'Digital Cable Network'.
Ld. Counsel for the plaintiff submits that no other witness is tc be examined.
CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.12 of 24 Digital Cable Network Vide separate statement of AR for the plaintiff, evidence of plaintiff stands closed.
Matter to now come up for ex-parte final arguments on 22.01.2025."
18. The Court, accordingly, proceeded with Ex-parte Evidence of the plaintiff.
As far as cross-examination conducted by Sh. Neeraj Sharma, Advocate, is concerned, having regard to the fact that he has clarified his position as to having instructed on behalf of "M/s. Digital Cable TV Network", which entity is not a defendant in the present suit, the cross-examination so conducted by him, for and on behalf of "M/s. Digital Cable TV Network", cannot be considered.
19. In his evidence, plaintiff has examined its AR Sh.
Manmohan Bhardwaj who deposed through affidavit as PW-1 and proved the following documents:-
(i) Copy of Board Resolution as Ex.PW-1/1;
(ii) Non Starter Report dated 05.07.2023 as Ex.PW-1/2;
(iii) Copy of Fresh Certificate of Incorporation as Ex.PW-1/3;
(iv) Copyright certificate of the song 'Jab Jab Pyar Pe' from the film 'Sadak' as Ex.PW-1/4;
(v) Copyright certificate of the 'Ek Do Teen Film Version' from the film'Baghi-2' as Ex.PW-1/5 ;
(vi) Copyright certificate of the song 'Party All Night' from the film 'Boss' as Ex.PW- 1/6;
CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.13 of 24 Digital Cable Network
(vii) Copyright certificate of the 'Aye Mere Humsa-
far' from the film 'Qayamat Se Qayamat
Tak' as Ex.PW-1/7 ;
(viii) Copies of interim orders of the Hon'ble High Court as well as District Courts of Delhi passed against Multi System Operators/ Ground Cable Network Operators as Mark-Z;
(ix) Investigator affidavit bearing my signatures at points A and B as Ex.PW-1/8;
(x) The Cue Sheet as Ex.PW1/9;
(xi)CD/DVD containing the contents as
Ex.PW1/10;
(xii) Screen Shots as Ex.PW1/11 and Ex.PW1/12;
(xiii) Affidavit under Section 65 B of the erstwhile Indian Evidence Act as Ex.PW1/12A.
(xiv) Letter dated 22.12.2022 along with the Speed Post receipt and Track Reports as Ex.PW1/13 (Colly.);
(xvi) Office copy of Legal Notice dated 07.01.2023 along with Speed Post Receipts and Track Reports as Ex.PW1/14 (Colly.);
(xvii) Printout taken from the official website of the plaintiff company as Ex.PW1/15 .
20. I have heard the Ld. Counsel for the plaintiff and have also gone through the written submissions and relevant records, as well the contents of the CD, subsequently provided in a USB Pen Drive pursuant to the directions of the Court.
21. Main contentions of the Ld. Counsel for the plaintiff CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.14 of 24 Digital Cable Network are:-
(i) The plaintiff is the copyright holder in the audio- video contents of the music videos pertaining to the songs 'Jab Jab Pyar Pe' from the film 'Sadak' , 'Ek Do Teen Film Version' from the film'Baghi-2', 'Party All Night' from the film 'Boss' and 'Aye Mere Humsafar' from the film 'Qayamat Se Qayamat Tak' and that the plaintiff has proved its copyright registrations by means of Ex.PW1/4 to Ex.PW1/7.
(ii) The defendant was found to regularly and continuously violating the copyrights of the plaintiff by means of unauthorized broadcast of these audio-video contents in his Cable TV Network in the city of Haridwar, Uttarakhand. The investigator has submitted his affidavit along with Cue Sheet and Compact Disk regarding the event and unauthorized broadcast of these songs.
(iii) Report of the Investigator, Cue Sheet as well as CD containing the recordings made by the investigator are proved on record as Ex.PW1/11 and Ex.PW1/12 and the contents of the Compact Disk and other documents placed on record are supported by the affidavit of the investigator under Section 65 B of the erstwhile Indian Evidence Act, 1872. Plaintiff had called upon the defendant about the violation and also requested him to obtain license from the plaintiff, in terms of the letter dated 22.12.2022- Ex.PW1/13. However, the defendant refused to accept the same.
(iv) Subsequently, the defendant was served with a legal notice dated 07.01.2023- Ex.PW1/4 which was also refused by the defendant being accepted.
The defendant, accordingly, is deemed to have been served vide letter dated 22.12.2022 and legal notice dated 07.01.2023 i.e. Ex.PW1/13 (Colly.) and Ex.PW1/14 (Colly.).
(v) Plaintiff has proved the rates of license fee by the relevant portions of the license policy as Ex.PW1/15 and having regard to the fact that the defendant has a huge subscriber base of about 25,000 lakhs, the plaintiff is entitled to damages to CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.15 of 24 Digital Cable Network a huge amount, however, it had confined its claim of Rs.25 lakhs. The defendant had been playing hide and seek, which is evident from the fact that the defendant side has appeared but failed to make a definite stand and even continued to cross- examine PW-1 without applying for the setting aside of the Ex-parte order. The said cross- examination is not liable to be read in evidence as it has been done for and on behalf of the M/s. Digital Cable TV Network, which is not the defendant in the present proceedings.
(vi) The defendant did not deliberately file any application for setting aside Ex-Parte Order in order to avoid disclosure of identities of the violators.
(vii) The plaintiff is, thus, entitled to injunction, permanently restraining the defendant from infringement of the copyrights and relief of damages against the defendant for past actions of infringement.
22. Time now to deal with the issues. Issues nos.1 and 3 are taken up together:-
"Issue No.1- Whether the plaintiff is the owner/copyright holder in respect of the audio video contents being relied upon by the plaintiff? OPP Issue No.3- Whether the defendant has violated the copyright of the plaintiff by means of unauthorized telecast of the content owned by the plaintiff, if so its effect? OPP"
In order to discharge the onus under this issues, the plaintiff has proved the service- Ex.PW1/4 to Ex.PW1/7 in respect of the audio video contents in songs- Jab Jab Pyar Pe' from the film 'Sadak' , 'Ek Do Teen Film Version' from the film'Baghi-2', 'Party All Night' from the film 'Boss' and 'Aye Mere Humsafar' from the film 'Qayamat Se Qayamat Tak'. Having regard to the said CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.16 of 24 Digital Cable Network documents, the vesting of the copyrights with the plaintiff stands established.
23. As regards the violation, attention of the Court has been invited towards the investigator's affidavit- Ex.PW1/8 which is further supported by the Cue Sheet- Ex.PW1/9 and the CD containing the recording done by the investigator. In light of the unrebutted testimony of PW-1, these documents have been proved. I have also gone through the contents of the documents- Ex.PW1/10 which have been separately provided in a USB on the directions of the Court and their appears to be no impediment in holding that there is a violation of copyright vested with the plaintiff. The recordings do indicate that there is an unauthorized broadcast of the songs which are copyrighted in favour of the plaintiff in terms of Ex.PW1/4 to Ex. PW1/7.
24. Attention of the Court is also invited towards the screen shots- Ex.PW1/11 & Ex.PW1/12, which also indicate that the words- 'DCN' appears towards the top right of the screen shot.
25. Going by the the degree of proof requisite for the civil proceedings i.e. principle of preponderance of probabilities and having regard to unrebutted testimony of PW-1 and further considering that there is nothing on CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.17 of 24 Digital Cable Network record which mitigates or otherwise offsets the probative value of these documents or discredits the testimony of PW-1, it can fairly be said that the plaintiff has been able to prove its copyright in the audio-video contents of the songs mentioned above as well as the incidents of violation of the copyright by the defendant.
Issues No.1 and 3 are, accordingly, decided in favour of the plaintiff and against the defendant.
26. Coming now to issues no.2:-
Issue No.2- Whether this Court has the territorial jurisdiction to try and entertain the present suit? OPP In order to prove issue o. 2, Ld. Counsel for the plaintiff invited the attention of the Court towards the Memo of Parties and also relied upon Section 62 (2) of the Copyright Act. It is contended that since the plaintiff operates its business from within the territorial jurisdiction of this Court, this Court does have the territorial jurisdiction to tray and entertain the present suit. There appears to be no impediment, either factual or legal in accepting the said contention.
Issue no.2, thus, stands decided in favour of plaintiff.
27. Coming now to Issue No. 4:-
Issue No.4- Whether the plaintiff is entitled for permanent injunction and damages, as prayed for? OPP CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.18 of 24 Digital Cable Network The plaintiff has placed reliance on the following judgments of Hon'ble High Court of Delhi:-
(i) Super Cassettes Industries Pvt. Ltd. Vs. Good Media News Pvt. Ltd. [CS (Comm) 1161/2016 dated 02.04.2018]
(ii) Super Cassettes Industries Pvt. Ltd. Vs. Sky Vision Digital Cable Network [CS (Comm) 14/2015 dated 06.08.2018]
28. Ld. Counsel for the plaintiff has contended that the defendant has customer base of around 25,000 subscribers and considering the rate of license fee per month per connection, the plaintiff is entitled to a huge amount towards damages on account of wrongful and unauthorized broadcast of these songs. It is also contended that since the plaintiff has proved on record its copyright vested in the songs/ audio-video content, the broadcast there of by the defendant is unauthorized and illegal and as such the defendant is also liable to be permanently restrained from unauthorized broadcast of the audio-video contents/ songs.
29. As regards the relief of injunction, there appears to be no impediment in holding that the plaintiff being vested with the copyrights in the audio-video contents in question, its unauthorized display/ broadcast by the defendant is to be restrained. However, as far as damages are concerned, CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.19 of 24 Digital Cable Network the Court would hesitate in holding the defendant to be liable to the damages to the tune of Rs.25 Lakhs, as has been claimed by the plaintiff on theoretical premises that the defendant has a customer/ subscriber base of 25,000 users and calculating, loss in terms of license fee per user per month for a considerable period would render the plaintiff has entitled to such an amount. There are multitude of reasons for the Court not to grant damages to such an extent.
30. There is nothing on record which indicate or even otherwise nudges the Court into believing that the defendant has subscriber base of 25,000 users. Besides the Investigator's report and the Cue Sheet, though clearly indicative of violation, is only in respect of one of the user recorded on a particular day. There is nothing on record which could aid the Court to come to a conclusion that the plaintiff is entitled to the damages to the tune of Rs.25 lakhs.
31. Since the plaintiff has been able to prove the violation by the defendant, its entitlement to damages cannot be ruled out. The absence of any credible evidence for calculation of damages with a mathematical precision, either would not affect the plaintiff's entitlement to damages or disable the Court may grant of such damages.
CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.20 of 24 Digital Cable Network
32. In a recent decision of Hon'ble High Court of Delhi-
'Starbucks Corporation vs. Teagula A. Ashion' [C.S. (Comm) 479/2019, decided on 06.05.2022], the Court dealt with a claim of damages in relation with infringement of intellectual property and observed that inadequacy of evidence in this respect would only warrant for grant of notional damages. The relevant extract of the said judgment is as under:-
"20. According to the Plaintiff, 400 beverages have been presumably sold by the Defendants. Having analysed the claim made by the Plaintiff towards damages, this Court is of the view that the claim for damages is based on presumptions that the Defendants would have sold 400 beverages in the relevant period. Plaintiff has not placed on record invoices for the sales, save and except one invoice and this cannot, in my view, lead to a conclusion that 400 beverages may have been sold. No stocks were recovered or seized from the premises of the Defendants. The entire claim is thus based on conjectures and surmises and no evidence has been led to support the claim of damages. In the absence of any evidence or sufficient material in favour of the Plaintiff, this Court is not in a position to award the damages claimed.
21. Learned counsel for the Plaintiff relied upon the judgement of the Co- ordinate Bench of this Court in Cartier International AG & Ors. v. Gaurav Bhatia & Ors., 2016 SCC OnLine Del 8, in support of the claim for damages. In the said case, there was evidence on record in the form of telephonic transcripts as well as seized goods which were counterfeit products, whereby the Plaintiff was able to prove and establish sale of the counterfeit products and in these circumstances, the Court had awarded punitive damages. Judgement in the case of Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd., 2014 SCC OnLine Del 490 relied upon by the Plaintiff was a case of disparagement through telecast of the CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.21 of 24 Digital Cable Network impugned advertisements and not a case of trademark infringement. Secondly, evidence was led in the form of number of times the advertisements were telecast, quantum of advertisement expenses incurred by the Defendant in the suit therein and amounts spent by the Plaintiff therein to advertise its products, etc. Thus, in my view, none of the two cases inure to the advantage of the Plaintiff herein to establish its claim towards damages. However, the Court cannot lose sight of the fact that Defendants have been found guilty of infringement and in such circumstances, Court can grant notional damages in terms of the judgment in Indian Performing Right Society v. Debashis Patnaik, 2007(34) PTC 201 Del. Accordingly, damages to the tune of Rs.2,00,000/- are awarded in favour of the Plaintiff and against the Defendants."
33. Reliance has also been placed upon "Calvin Klein Trademark Trust & Anr. vs. M/s. Guru Nanak International & Ors." in CS (COMM) 75/2020 & I.A. 1318/2023 decided on 08.12.2023. Ld. Counsel for the plaintiff has stressed upon the fact that the defendant had deliberately avoided participating in the proceedings merely in order to avoid production of its accounts. It has been vehemently impressed upon the Court that the defendant are aware of the present proceedings and did not deliberately file any application for setting aside the Ex-Parte Order and to contest the suit on merits, in order to avoid disclosures. Such strategic intent on the part of the defendant cannot be ruled out, having regard to the facts involved in the case.
34. Considering the factual matrix of the case, the plaintiff is held entitled to the damages of Rs. 5 Lakhs, CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.22 of 24 Digital Cable Network which the Court finds to be integrating better with facts involved in the case.
35. The plaintiff is, accordingly, entitled to relief of permanent injunction as claimed as well as damages to the tune of Rs.5 Lakhs.
Issue no.4 is decided in favour of the plaintiff, accordingly.
36. "Issue no.5- Relief"
(i) A decree of permanent injunction is granted in favour of the Plaintiff and against the Defendant thereby restraining the Defendant, its agents, partner and all other acting for and on behalf its behalf from either engaging themselves or authorizing the recording, distributing, broadcasting, public performance/communication to the public or in any other way exploiting the cinematograph films, sound recordings and/or literary works (lyrics) and musical works (musical composition) or other work or part thereof throughout India, owned by plaintiff.
(ii) Decree of damages to the tune of Rs.5,00,000/-
is also passed in favour of the Plaintiff and against the Defendant. The defendant is directed to make the payment of damages to the plaintiff within three months from today.
CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.23 of 24 Digital Cable Network
37. Decreed with costs.
38. Decree-sheet be prepared accordingly.
39. File be consigned to Record Room after due compliance. Digitally signed by Dictated and Announced today NIKHIL NIKHIL CHOPRA i.e. on 07h day of May, 2025 CHOPRA Date:
in the open Court 2025.05.09
16:14:08
+0530
(NIKHIL CHOPRA)
District Judge (Commercial Court-06)
Central, Tis Hazari Court, Delhi
07.05.2025
CS (Comm) 1234/2023 M/s Super Cassettes India Pvt. Ltd. Vs. Page No.24 of 24
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