Madras High Court
Music Masters Audio Video ... vs Aditya Music (India) Pvt. Ltd on 30 January, 2019
Author: M.Sundar
Bench: M.Sundar
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tIN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 30.01.2019
CORAM
THE HON'BLE MR.JUSTICE M.SUNDAR
C.S.No.371 of 2015
&
A.No.3360 of 2018
&
O.A.Nos.375 and 376 of 2018
Music Masters Audio Video Manufacturing
Company Pvt. Ltd.,
Mr.Ganshyam Hemdev
Old No.3, new No.5, Muktha Garden
Spur Tank Road, Chetpet
Chennai – 600 031 .. Plaintiff
Vs.
1.Aditya Music (India) Pvt. Ltd.,
Represented by its Managing Director
No.3-5-1091/7 Venkateshwara Colony
Narayanaguda
Hyderabad – 500 029
2. Pyramid Audio India Pvt. Limited
Represented by Jaswinder Singh Bajaj
C-50/5 Ganesh Apartments
2nd Avenue, Anna Nagar East
Chennai – 600 102 .. Defendants
(2nd Defendant given up)
This Civil Suit is preferred, under Sections 62 and 55 of the
Copyrights Act, 1957 read with Order IV Rule 1 OS Rules and Order VII Rule 1
CPC to declare that the plaintiff is the absolute owner of the audio
copyrights in the plaint schedule films, to grant a permanent injunction
restraining the 1st defendant, their men, agents, servants, persons acting on
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their behalf including but not limited to internet portals, radio stations,
mobile platforms and their collection agencies from in any manner
exploiting, releasing or dealing with the audio copyrights in the plaint
schedule films and thereby infringing the plaintiff's copyrights, to direct the
defendants to pay the costs of the suit.
For Plaintiffs : Mr.K.Harishankar
For Defendants : Mr.J.Ravikumar for first defendant
Second defendant given up
JUDGMENT
There is a sole plaintiff and there are two defendants in this suit.
2.Mr.K.Harishankar, learned counsel is before this Commercial Division on behalf of sole plaintiff and Mr.J.Ravikumar, learned counsel on record for the first defendant are before this Commercial Division.
Learned counsel for plaintiff submits that no relief has been sought against the second defendant and he may please be permitted to give up the second defendant. Learned counsel has made an endorsement in the suit file in this regard, which reads as follows:
'C.S.No.371 of 2015The plaintiff and 1st Defendant have entered into a Compromise and the plaintiff prays to give up the 2nd defendant in the suit as no relief is claimed against the said defendant.
Sd/-
Counsel for plaintiff' http://www.judis.nic.in 3
3.Both learned counsel submit that parties have amicably settled the lis amongst themselves and have reduced the same to writing by way of a Compromise Agreement dated 07.01.2019 together with the schedule therein. Both parties filed a joint memo dated 18.01.2019 enclosing the compromise agreement dated 07.01.2019 entered into between plaintiff and the first defendant. The Compromise agreement dated 07.01.2019 shall hereinafter be referred to as 'said MOC' for the sake of convenience and clarity.
4. Said MOC is placed before me. It has been duly signed by both parties and their respective counsel.
5.On behalf of plaintiff, Mr.Ghanshyam Arjunsingh Hamdev is before this Commercial Division. On behalf of first defendant Mr.Sachin Rode, Manager of first defendant company is before this Commercial Division and a Board Resolution dated 02.01.2019 authorizing him to represent first defendant firm has been placed before this Commercial Division.
6.Both learned counsel and their respective clients make a common request that main suit itself may please be disposed of by passing a compromise decree in terms of said MOC.
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7. The Joint Memo executed and filed by the parties and Compromise Agreement together with schedule therein (said MOC), read as follows:
'JOINT MEMO EXECUTED AND FILED BY THE PARTIES The Plaintiff and Defendants jointly and respectfully state as follows:
1. The Plaintiff has filed this suit for grant of permanent injunction restraining the 1st Defendant from in any manner exploiting, releasing or dealing with the audio copyrights in the Plaint schedule films and thereby infringing the Plaintiff's copyrights and also for a declaration that the Plaintiff is the absolute owner of the audio copyrights in the Plaint schedule films.
2. The Learned Single Judge on 01.09.2017 passed an ex-parte Order of Interim Injunction as prayed for till the disposal of the suit.
Subsequently, the 1st Defendant filed Application No.3360/2018 to recall the ex-parte order dated 01.09.2017. Also, OA Nos.375 & 376 of 2018 were also filed by the 1st Defendant seeking temporary injunction and for interim suspension of the ex-parte order dated 01.09.2017. Thereafter on 27.04.2018, the learned Single Judge was pleased to modify the ex-parte order dated 01.09.2017 and directed that the status as on 01.09.2017 shall continue both in favour of the Plaintiff and the 1st Defendant and thereby both parties have continued to receive revenues and to exploit, without prejudice, till disposal of the applications, and the said interim order is still in force.
3. During the pendency of the interlocutory applications, the parties have arrived at a settlement and the terms of which have been recorded in a Compromise Agreement dated 07.01.2019 executed in three parts, of which one original has been filed herewith and decided to resolve the issue amicably.
http://www.judis.nic.in 5 It is therefore prayed by all the parties that this Hon'ble Court may be pleased to dispose of C.S.No.371 of 2015 in terms of the Compromise Agreement dated 07.01.2019 and decree may be drawn in terms of the Compromise Agreement dated 07.01.2019 and thus render justice.
Dated at Chennai on this the 18th day of January, 2019.
Sd/- Sd/-
For Music Masters Audio Video For Aditya Music (India) Pvt. Ltd.
Manufacturing Company Pvt. Ltd (1st Defendant)
(Plaintiff)
Counsel for Plaintiff Counsel for 1st Defendant
COMPROMISE AGREEMENT
This Compromise Agreement entered on this 7th day of January 2019 between:
1) Music Masters Audio Video Manufacturing Co. Pvt. Ltd., represented by its Director, Mr.Ghanshyam Hemdev, having office at Old No.3, New No.5, Muktha Garden, Spur Tank Road, Chetpet, Chennai-600 031 duly authorised by Board Resolution enclosed herewith, hereinafter referred to as the Party of the First Part which term shall mean and include its Directors, Officers, Successors in Office, Administrators and Permitted Assigns and
2) Aditya Music (India) Pvt. Ltd., represented by its Managing Director, Mr.Umesh Gupta having office at No.3-5-1091/7, Venkateswara Colony, Narayanaguda, Hyderabad 500 029, duly authorized by Board Resolution enclosed herewith, hereinafter referred to as the Party of the Second Part http://www.judis.nic.in 6 which term shall mean and include its Directors, Officers, Successors in Office, Administrators and Permitted Assigns.
3) M/s.Giza Impex Pvt. Ltd., represented by Siddharth Hemdev, having office at No. Old No.-3, New No.5, Muktha Gardens, Spur Tank Road, Chetpet, Chennai - 600 031, duly authorized by Board Resolution enclosed herewith:
4) M/s.Kotumal Arjundas, represented by Sanjay Wadhwa, having office at Old No.80, New No.42, New Avadi Raod, Kilpauk, Chennai - 600 010, duly authorised vide letter enclosed herewith;
5) M/s.A.P.International, represented by Sanjay Wadhwa, having office at Old No.80, New No.42, New Avadi Raod, Kilpauk, Chennai - 600 010, duly authorised vide letter enclosed herewith;
6) M/s.Sanjay Wadhwa, having office at Old No.80, New No.42, New Avadi Raod, Kilpauk, Chennai - 600 010, duly authorised vide letter enclosed herewith;
7) M/s.Sree Devi Video Corporation, represented by Ghanshyam Hemdev having office at Old No-3, New No.5, Muktha Gardens, Spur Tank Road, Chetpet, Chennai - 600 031, duly authorized by Board Resolution enclosed herewith;
8) M/s.H.S.Bajaj & sons (Bom) Pvt. Ltd., represented by its Director Kiranjit Singh Bajaj, having office at No.3B, Alsa Towers (Res.Block), 186/187, Poonamallee High Road, Kilpauk, Chennai - 600 010, duly authorised by Board Resolution enclosed herewith;
9) Shri Balaji Enterprises, represented by Sanjay Wadhwa, having office at Old No.80, New No.42, New Avadi Raod, Kilpauk, Chennai - 600 010, duly authorised vide letter enclosed herewith;
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10) Sanjay A.Wadwa HUF, rep. by its Karta Sanjay Wadhwa, having office at Old No.80, New No.42, New Avadi Raod, Kilpauk, Chennai - 600 010, duly authorised vide letter enclosed herewith;
The parties 3 to 10 herein above are referred to as the "Confirming Parties" and wherever the context so requires mean and include their respective Directors, Partners, Members, Officers, Administrators, Successors in Office and assigns.
WHEREAS the Party of the First Part has filed a suit against the Party of the Second Part and one Pyramid Audio India Pvt. Ltd., in C.S.No.371/2015 before the Hon'ble Madras High Court for declaration of copyrights in the songs / albums and for other reliefs;
and WHEREAS the Party of the Second Part has filed application to vacate the ex-parte interim injunction granted in favour of the Party of the First Part and also another application for grant of interim injunction against the Party of the First Part, wherein the exparte interim injunction granted in favour of the Party of the First Part on 01.09.2017 was modified vide order dated 27.04.2018;
and WHEREAS the parties have, at this stage, entered into discussions and agreed to amicable resolve their disputes in the said civil suit and connected applications in terms of this Compromise Agreement on the terms and conditions hereinafter mentioned.
Now this Compromise Agreement Witnesseth:
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1. Both parties herein have agreed that the entire content / titles listed in Schedule-A i.e the copyrights for the territory of India, which are part of the titles listed in suit C.S.No.371/2015, will be the subject matter of the present settlement and hereinafter referred to as the Said Content.
2. In consideration of both parties reaching an amicable settlement to all their disputes raised for the Said Content in C.S.No.371/2015 and connected applications, the parties have arrived at and entered into the present Compromise Agreement.
3. Subject to the clauses in this agreement, both the parties have agreed to jointly sell / assign / transfer the ownership in the Said Content to a third party and share the sale proceeds (as detailed below) and till such time, they shall jointly own and exploit the Said Content and each party shall have an equal share to the copyrights in the Said Content (i.e. for the territory of India). In the event of any firm offer from a third party, the Party of Second Part shall have a right of pre-emption, whereby the Party of Second Part shall be entitled to make an offer matching that of the third party, and upon such exercise of right of pre-emption, the Party of First Part shall accept its share i.e., 50% out of the matching offer and the ownership and title in the Said Content shall solely, absolutely and completely vest with the Party of Second Party upon such acceptance, and the same right of pre-emption shall be available to the Party of the First Part also.
4. Both parties have agreed that any form of exploitation of the Said Content commencing from the date of signing this agreement shall only be done jointly by both parties as joint owners of all copyrights in the Said Content and each party shall be entitled to share all revenues / royalties arising out of the said exploitation of the Said Content (i.e. for the territory of India) equally in the ratio of 50:50. The Party of First Part shall not have any claim to any share whatsoever in all past revenues / royalties pertaining to the Said Content from the Party of the Second Part http://www.judis.nic.in 9 or any third party and / or any copyright collecting society whatsoever already received by the parties till this date and shall provide NOC to Party of Second Part for the same. Revenues / royalties accrued but not received till date will be to the account of both parties jointly or to the account of a joint Special Purpose Vehicle that may be formed by both parties as provided under clause 6 below.
5. Both parties have expressly agreed that the ownership in devotional catalogue of Keerthana titles and overseas territory rights assigned by Pyramid Audio India Pvt. Ltd., in favour of the Party of the Second Part under assignment agreements dated 23.08.2007 shall be excluded from the terms of this arrangement and the Party of the First Part confirms that the Party of the Second Part has sole and exclusive rights to exploit the said devotional catalogue of Keerthana and the overseas territory rights assigned under two agreements dated 23.08.2007. The Party of First part shall not make claim whatsoever in respect of the two agreements dated 23.08.2007.
6. Both parties hereby agree that for the purpose of joint sharing of revenue / joint exploitation of the Said Content, they may form a Special Purpose Vehicle (New Entity) wherein both parties shall have equal representation / share / stake / ownership and the copyrights in the Said Content shall, upon formation of such New Entity, be transferred / assigned in favour of the said new entity to enable it to be single point revenue centre, and all such revenues / royalties arising out of the exploitation of the Said Content that shall accrue to the said new entity shall thereafter be shared equally between the parties. Each party shall bear their own taxes on the income received from the New Entity.
7. In the event of sale / assignment of the Said Content as mentioned above, the formation of the new entity shall not be required.
8. The sharing of revenues / royalties arising out of the exploitation of http://www.judis.nic.in 10 the Said Content shall be in the ratio of 50:50 only for exploitation within the territory of India. In the event the Party of Second Part agree to exploit its overseas territory rights of the Said Content (the titles which are part of the overseas territory rights acquired from Pyramid Audio India Pvt. Ltd. vide agreement dated 23.08.2007) along with the Said Content (i.e. rights for India), the sharing of all revenue will be in the ratio of 57 to the Party of the Second Part and% to the Party of the First Part.
9. For the avoidance of doubt, it is expressly agreed and stated that in the event Said Content (i.e. India territory rights) being sold independently to a third party, then the parties shall be entitled to share the revenues in the ratio of 50:50 and in the event Party of Second Part agree to sell the overseas rights of the Said Content (the titles which are part of the overseas territory rights acquired from Pyramid Audio India Pvt. Ltd. vide agreement dated 23.08.2007) along with the Said Content (i.e. India rights) to the same third part, only in such circumstances shall revenue sharing be done in the ratio of 57.5%:42.5%, wherein the Party of the Second Part is entitled to 57.5%. In the event of any third party agreeing or insisting to but the rights for the entire world including overseas only and not for India alone the party of the second part agrees to honour the deal on the above said ratio.
10. The parties have agreed to file this Compromise Agreement before the Hon'ble High Court of Madras and there shall be a decree in terms of the compromise in the suit and the terms of the compromise that have been agreed by the parties to form part of the decree are annexed to this agreement as Annexure A.
11. The parties hereby agree and confirm that upon execution of this Compromise Agreement and upon passing of a decree by the Hon'ble High Court in terms of the compromise as set out in Annexure A, all disputes between the parties in relation to the Said Content shall be deemed to http://www.judis.nic.in 11 have been settled.
12. The term Parties referred in the above mentioned clauses refer only to the Party of the First Part and Second Part. All the Confirming Parties hereto confirm and assure that they have relinquished all right,title and interest in the Said Content and shall not have any claim whatsoever in respect of the same against the Party of the Second Part and/or the New entity and the Party of the First Part confirms that it shall be solely liable for any claim raised by any confirming Parties whether now/past/future.
13. The parties have agreed that any disputes or differences arising between them in connection with this Compromise Agreement or in relation to matters arising out of this agreement or with respect to giving effect to the terms of this Compromise Agreement shall be attempted to be settled amicably between the parties and if such amicable settlement cannot be arrived at, then any disputes or differences between the parties arising out or in connection with this Compromise Agreement shall be referred for adjudication by a Sole Arbitrator to be jointly nominated by the parties and if the parties are unable to mutually agree on such Sole Arbitrator, the appointment of Sole Arbitrator shall be done in terms of The Arbitration and Conciliation Act, 1996 or its statutory modifications or enactments. The venue of arbitration shall be in Chennai or Hyderabad and the Courts in the City of Chennai or Hyderabad shall have jurisdiction to deal with all matters concerning this Compromise Agreement and in regard to the arbitration proceedings. The decision of the Sole Arbitrator shall be final and binding on the parties.
14. The Party of First Part has filed a suit against Sri IIayaraja and others before the Hon'ble High Court of Madras vide C.S. No. 31 of 2010 seeking a relief of injunction and other reliefs in respect of some of the titles and the said suit is pending.
Similarly the Party of Second Part had also filed a suit against Sri IIayaraja and others in No. OS 140 of 2010 before the Hon'ble III Additional Chief http://www.judis.nic.in 12 Judge, City Civil Court at Hyderabad ascertaining its rights over some of the titles. In view of the above settlement, the parties do hereby agree that the First Party and the Second Party shall continue to pursue their respective suits and such other proceedings to assert the titles so that the third party is injuncted from exploiting the rights which rightfully belongs to the First Part and Second Party and which is subject matter of the present compromise.
It is further agreed between the parties and after the said suits are adjudicated, the title, rights in respect of these contracts would continue to be with the Parties hereto or the New entity/Company which is being floated by the Parties as a Joint Venture.
15. It is clarified that the arrangement under this Compromise agreement is not a Partnership between the Parties of First Part and Second Part hereto.
16. This Agreement is executed in three counterpart copies, all of which so executed shall be deemed to be original. One copy of the Agreement shall be filed before the Hon'ble High Court of Madras and the other two copies shall with Parties of First Part and Second Part.
In witness whereof, the parties above named have signed and sealed this Compromise Agreement on the day, month and year first above written in the presence of:
For and behalf of Music Masters Audio Video Aditya Music (India) Pvt. Ltd. Manufacturing Co.Pvt.Ltd.
Sd/- sd/-
Mr Ghanshyam Hemdev Mr. Umesh Gupta
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Confirming Parties
M/s.Giza Impex Pvt. Ltd, For GIZA IMPEX (P) LTD.
represented by Siddharth Hemdev Sd/-
DIRECTOR
M/s.Kotumal Arjundas, Sd/-
represented by Sanjay Wadhwa
M/s.A.P.International, Sd/-
represented by Sanjay Wadhwa Partner
M/s.Sanjay A Wadhwa Sd/-
M/s.Sree Devi Video Corporation for Sree Devi Video Corporation
represented by Ghanshyam Hemdev Sd/- Partner
M/s.H.S.Bajaj & Sons (Bom) Pvt. Ltd., for M/s.H.S.Bajaj & Sons (Bom) represented by Kiranjit Singh Bajaj Pvt. Ltd., Sd/- Director Shri Balaji Enterprises For SHRI BALAJI ENTERPRISES represented by Sanjay Wadhwa Sd- PROPRIETOR Sanjay A Wadwa HUF For SANJAY A. WADHWA HUF rep. by its Karta Sanjay Wadhwa Sd/- KARTHA for Music Master A.V.M.Co.P Ltd., Sd/- Director http://www.judis.nic.in 14 Schedule (List of Titles/Content) http://www.judis.nic.in 15 http://www.judis.nic.in 16 http://www.judis.nic.in 17 http://www.judis.nic.in 18 http://www.judis.nic.in 19
8. Representatives of both plaintiff and first defendant confirm that said MOC has been signed by plaintiff and first defendant after understanding all the terms and conditions therein and both of them make a joint request that this Commercial Division may please be dispose of the main suit itself in terms of said MOC.
9.The prayer for decreeing the suit in terms of said MOC is acceded to. Said MOC, certified true copy of plaintiff company's Board resolution referred to supra and self attested photocopies of photo identity cards of the representatives of the plaintiff company and first defendant company shall all form part of the compromise decree.
10.Suit decreed on above terms. No costs. Consequently, all interlocutory applications are closed.
30.01.2019 Index : Yes/No gpa/mp http://www.judis.nic.in 20 M.SUNDAR, J.
gpa/mp C.S.No.371 of 2015 30.01.2019 http://www.judis.nic.in