Delhi District Court
Ms Shree Dura Multi Trade Pvt Ltd vs Manoj Kumar S.Ojha on 15 July, 2024
IN THE COURT OF MS. POOJA JAIN, ADDITIONAL DISTRICT
JUDGE-03, EAST DISTRICT, KKD COURTS, DELHI
CS No.276/20
M/S SHREE DURGA MULTI TRADE PVT. LTD.
HAVING ITS OFFICE AT 2/4, KARURA, KARURA
KARAURA SUJAN GANJ, MACHHALI SAHAR
JANPUR U.P., AND
HAVING ITS HEAD OFFICE AT
A-3, OFFICE NO.203, GURUNANAKPURA GARG
COMPLEX, LAXMI NAGAR, NEAR NIRMAN VIHAR
METRO STATION, DELHI-110092. ..............Plaintiff
Versus
MR. MANOJ KUMAR S. OJHA
S/O SH. SHAM KISHORE
C-403, VASTU PARK, EVERSHINE
NAGAR, NEW LINK ROAD, MALAD (W)
MUMBAI-400064
SECOND ADDRESS: A/1203, AMBRAL TOWER
EVERSHINE NAGAR, NEW LINK ROAD,
MALAD (W), MUMBAI-400064
HAVING ITS BRANCH OFFICE AT:
C/O YASHI FILMS, 94-B, DARYA GANJ
DELHI-110002. .............Defendant
Date of Institution : 09.12.2015
Date of Reserving Order : 21.05.2024
Date of judgment : 15.07.2024
E X-P A R T E J U D G M E N T
SUIT FOR DAMAGES FOR A SUM OF RS.50,00,000/- ALONG WITH
COURT FEES RS.51,144/- TOGETHER WITH FUTURE
PENDENTELITE INTEREST
CS No. 276/202 M/S SHREE DURGA MULTI TRADE P. LTD. VS. MANOJ KUMAR S. OJHA Page no. 1 of 9
1.Brief facts of the case are that the plaintiff has filed the present suit for damages for a sum of Rs. 50,00,000/- against the defendant. It is submitted that plaintiff being a corporate entity is dealing in the business of purchasing the old and new motion pictures from the various producers and directors and selling the same to the different channels for their exploitation in the different modes such as satellite rights, cable rights, digital rights to the various channels as well as to the cable operators and for various FM channels and has acquired the rights of various motion pictures of black and white as well as colour motion pictures like theatrical right, home video rights, free television rights and pay television rights etc. as those are purchased by plaintiff from the various producers' as well as directors and holding those rights in respect of the motion picture "Sajan Chale Sasural (Bhojpuri-Colour)", produced by Sh. Alok Kumar Singh and directed by Sh. Premanshu Singh under the banner of M/s Sanyogita Films, Mumbai.
2. On 24.12.2014, plaintiff entered into an agreement with the defendant, being just a financer to the aforesaid movie and acting on behalf of Sh. Alok Kumar Singh, producer of the aforesaid movie for transfer of the following rights such as electronic media, satellite broadcasting rights Internet rights, cable rights and other rights under the banner of M/s Sanyogita Films, Mumbai.
3. As per the aforesaid agreement, plaintiff has to fulfill their payment terms and conditions as mentioned in the schedule-A and in fact at the time of execution, plaintiff paid a sum of Rs.1,65,000/- by way of cash. Thereafter within 7 days plaintiff has to submit the certificate of the CS No. 276/202 M/S SHREE DURGA MULTI TRADE P. LTD. VS. MANOJ KUMAR S. OJHA Page no. 2 of 9 said motion picture i.e. "Sajan Chale Sasural (Bhojpuri-Colour)", U/A certifications from CBFC.
4. It is averred that defendant thereafter, has to forward the following things to the plaintiff i.e. No Objection Certificates from the Financers, No objection from the directors as well as producers and music directors' and artists' and authority letter from Sh. Alok Kumar Singh (producer) authorizing the defendant to execute the agreement dt. 24.12.2014.
5. It is further averred that non supply of requisite documents and required NOC's, plaintiff suffered financial losses such as loss of business to the tune of Rs.2,000/- per day started after the six month of date of execution i.e. Rs.3,65,000.00 and damages towards the mental agony for issuance of the illegal public notice in trade guide dated 10.10.2015 on page no.63. Besides all that, defendant has been openly indulging in slanderous mudslinging against the plaintiff, its directors, employees, business etc. and is spreading false and baseless innuendos, and highly defamatory statements and rumours against the plaintiff with malafide intention to defame it and/or ostensibly to frame and implicate them in some frivolous and vexatious litigations due to which plaintiff has badly suffered in its business as well as reputation, which has been lowered in the estimation of their friends, business colleagues, employees etc. It is further averred that in view of the non fulfillment of the terms of the aforesaid agreement, defendant on one pretext or the other refused to acknowledge the plaintiff and on 28.09.2015 and 06.10.2015 defendant issued legal notice to the plaintiff thereby terminating the said agreement CS No. 276/202 M/S SHREE DURGA MULTI TRADE P. LTD. VS. MANOJ KUMAR S. OJHA Page no. 3 of 9 dt. 24.12.2015 and forfeiting the payment of Rs.1,65,000/- paid by the plaintiff to the defendant initially. Plaintiff sent detailed replies cum demand notices but the same were returned with remarks 'unclaimed'. It is also averred that in view of the non-fulfillment of the obligations of the terms and conditions on the part of the defendant and termination notice is only sort of cover up defendant's fault in fact defendant has no power to terminate the agreement and forfeiting a total sum of Rs.2,55,000.00 so far paid by the plaintiff in advance. It is further averred that in the last week of November, 2015 plaintiff came to know that defendant was approaching various other persons and negotiating with them with respect to the selling of the aforesaid movie. It is further averred that defendant has been desperately trying to exploit the same for his own benefit and again, albeit in an illegal manner, and on unfounded basis under their banner. Thus, plaintiff has filed the present suit for a sum of Rs.50,00,000/- along-with Court Fees i.e. Rs.51,144/- together with future pendentelilte interest and a decree of permanent injunction thereby restraining the defendant not to exploit the motion picture i.e. " Sajan Chale Sasural (Bhojpuri-Colour)", under the banner of M/s Sanyogita Films, along-with the cost of the present suit.
6. Summons were issued to the defendant and the defendant was served and appeared on 26.11.2019 before the court through his counsel. However, despite several opportunities, defendant did not file any written statement and stopped appearing in the court and on 05.09.2022, defendant was proceeded ex-parte and matter was fixed for P.E. and that exparte P.E. was closed after recording ex-parte evidence vide order dated 23.11.2022.
CS No. 276/202 M/S SHREE DURGA MULTI TRADE P. LTD. VS. MANOJ KUMAR S. OJHA Page no. 4 of 9 EX-PARTE PLAINTIFF'S EVIDENCE
7. In order to prove its case, plaintiff examined Sh. Durgesh R. Singh, its Managing Director as PW1 and he has tendered his evidence by way of affidavit which was exhibited as Ex. PW1/A in which the plaintiff reiterated the plaint averments. The plaintiff relied upon the following documents:
1. Copy of agreement dt. 24.12.2014 as Ex.PW1/D1;
2. The acknowledgment mail of the payments in lieu of agreement dt. 24.12.2014 as Ex.PW1/D2;
3. Copy of schedule A part of agreement dt. 24.12.2014 as Ex.PW1/D3;
4. A public notice dt. 10.10.2015 issued by defendant against the plaintiff as Ex.PW1/D4;
5. Copy of schedule B part of agreement dt. 24.12.2014 as Ex.PW1/D5;
6. Legal notice dt. 28.09.2015 as Ex.PW1/D6;
7. Legal notice dt. 06.10.2015 as Ex.PW1/D7; and
8. Reply dt. 14.10.2015 to legal notice dt. 06.10.2015.
EX-PARTE FINAL ARGUMENTS
8. Heard the Ld. Counsel for plaintiff and perused the record. It has been argued on behalf of the plaintiff that defendant has defrauded the plaintiff by terminating the agreement dt. 24.12.2014 and not making the payment as demanded by the plaintiff and persistently attempting to exploit the said motion picture i.e. "Sajan Chale Sasural (Bhojpuri- Colour)", under the banner of M/s Sanyogita Films. Defendant did not pay CS No. 276/202 M/S SHREE DURGA MULTI TRADE P. LTD. VS. MANOJ KUMAR S. OJHA Page no. 5 of 9 even a single penny of outstanding dues to plaintiff. It is further argued that a decree for recovery of the suit amount be passed in favour of the plaintiff along-with court fees of Rs.51,144/- together with future pendentelite interest and also declaration, injunction and infringement of copy right owner of the motion picture i.e. "Sajan Chale Sasural (Bhojpuri-Colour)".
FINDINGS
9. Before adjudicating the present case the following questions are required to be answered:
a. whether the defendant had authority to enter into the agreement dt. 24.12.2014 and if no, its effect thereof? b. Whether the plaintiff has locus-standi to claim damages against infringement of copy right in motion picture i.e. 'Saajan Chale Sasural' ?
c. Whether the plaintiff proves the payment made by him to the defendant?
9.1 On the first aspect, it is clear from plain reading of Section 17 of Copyright Act 1957 that the author of work shall be the first owner of copyright if not falls in proviso to Section 17. As per averments of plaintiff in the present case, subject matter of suit is a motion picture (Saajan Chale Sasural) produced by Sh. Alok Kumar Singh and directed by Mr. Premanshu Singh.
9.2 Section 2 (d) of Copyright Act, 1957 defines the word 'author' which says in relation to a cinematograph film or sound recording, the producer is the author of work. Hence, in present case, the CS No. 276/202 M/S SHREE DURGA MULTI TRADE P. LTD. VS. MANOJ KUMAR S. OJHA Page no. 6 of 9 producer Sh. Alok Kumar Singh is the author and first owner of copyright in subject matter.
9.3 Section 18 of Copyright Act provides that the owner of the copyright in an existing work or the prospective owner of copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of copyright or any part thereof.
9.4 Section 19 provides the mode of assignment, which says that no assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorized agent. 9.5 Now coming to the facts of present case, as per averments made by plaintiff, the defendant assigned copyright in subject matter of suit i.e. motion picture ( Saajan Chale Sasural) to the plaintiff on behalf of Sh. Alok Kumar Singh (producer of picture). It is further the case of plaintiff that at the time of execution of agreement dt. 24.12.2014, the defendant had not shown the authority to the plaintiff to enter into agreement on behalf of producer and the defendant was obliged to forward the authority letter authorizing him by the producer to enter into contract.
Meaning thereby the plaintiff was well aware of the fact that the defendant entered into the agreement dt. 24.12.2014 without proper authorization. It is not the case of plaintiff that the producer of movie, ratified the act done by the defendant.
In view of above discussion it is concluded that the agreement dated 24.12.2014 was not a valid agreement due to lack of proper authority with defendant to enter into the agreement.
10. On the second aspect, as mentioned para 9(b), conjoint CS No. 276/202 M/S SHREE DURGA MULTI TRADE P. LTD. VS. MANOJ KUMAR S. OJHA Page no. 7 of 9 reading of Section 54 and Section 55 of copyright Act clears that the owner or an exclusive licensee (if the work is not anonymous) shall be entitled to all such remedies by way of injunction, damages, accounts in case the copyright in work has been infringed. It has already been held in first question that the agreement dt. 24.12.2014 is not a valid agreement. The defendant had no authority to assign copyright in motion picture (Saajan Chale Sasural). The plaintiff is neither the owner nor the assignee of copyright in subject matter of suit. Hence, he is not entitled to bring the present suit for injunction, damages against the infringer of copyright in subject matter motion picture (Saajan Chale Sasural).
11. On the third aspect as mentioned in para 9 (c), perusal of plaint reveals that the initial payment of Rs.2,55,000/- is stated to have made by plaintiff to defendant through bank transfer or cash. However, the plaintiff has not produced a single iota of evidence (oral or documentary) to prove the said payment. Production of his bank statement or cash receipt could have supported his case. In absence thereof, mere averments in respect of payment are not suffice to establish the case of plaintiff in his favour. Even if the defendant has not come forward to take any defence, it was the duty of plaintiff to establish his case prima-facie which he has not been able to discharge. Therefore, it is concluded that the plaintiff has not been able to prove that he paid any amount of Rs.2,55,000/-to the defendant.
12. In light of above observation, this Court is of the opinion that present suit of plaintiff is liable to be dismissed.
CS No. 276/202 M/S SHREE DURGA MULTI TRADE P. LTD. VS. MANOJ KUMAR S. OJHA Page no. 8 of 9
13. Accordingly, suit of the plaintiff is hereby dismissed. Decree sheet be drawn.
14. File be consigned to Record Room.
(POOJA JAIN) Additional District Judge-03, East/KKD Courts, Delhi Announced in the Open Court dated 15.07.2024.
CS No. 276/202 M/S SHREE DURGA MULTI TRADE P. LTD. VS. MANOJ KUMAR S. OJHA Page no. 9 of 9