Delhi District Court
Saurabh Medical Publishers vs Academist Target Mds Pvt. Ltd, Gaurav ... on 7 April, 2025
IN THE COURT OF MS. ANURADHA SHUKLA
BHARDWAJ: DISTRICT JUDGE (COMMERCIAL
COURT)-02, SOUTH, SAKET, DELHI
CS (COMM) 183/2020
1. Saurabh Medical Publishers
SCO-544 (T.F), Kesho Ram
Complex, Sector 45, Burail,
Chandigarh UT, Chandigarh - 160047
Through its Proprietor, Mr. Rakesh Jain
....Plaintiff
Versus
1. Academist Target MDS Private Limited
At:245A, Ground Floor, Near Nanda
Hospital, Chhatarpur Extension,
New Delhi - 110074.
2. Dr.Gaurav Anand, Director,
Academist Target MDS Private Limited
245A, Ground Floor, Near Nanda Hospital,
Chhatarpur Extension, New Delhi - 110074
Also at :R/o #507 New Azad Nagar,
Ferozepur City-152002 (Punjab)
3. Dr. Mohit Gautam, Director,
Academist Target MDS Private Limited 245A,
Ground Floor, Near Nanda Hospital,
Chhatarpur Extension, New Delhi - 110074
Also at :R/o #544 E, Rose Street,
Majitha Road, Amritsar - 143001 (Punjab)
4. Target Publisher
Email: [email protected]
Ph: 9872117850
Website: dentaltargetplus.com
CS (COMM) 183/2020 Page 1 of 38 Saurabh Medical Publishers Vs.
Academist Target MDS Private Limited & Ors.
5. Dentaltargetplus.com
Email: [email protected]
Ph: 9872117850
....Defendants
Date of filing of the suit : 18.07.2020
Date of reserving judgment : 27.03.2025
Date of judgment : 05.04.2025
JUDGMENT
1. This is a suit for permanent injunction seeking restraint against infringement of copyright, trademark passing off, damages, rendition of accounts, delivery up, etc. filed by plaintiff against defendants.
2. In brief, the case of the plaintiff is that it is a reputed publishing house engaged in the publication of books, study material, and journals in subjects pertaining to Health Sciences since the year 2008 and that plaintiff has developed a reputation for providing books and study materials with credible content and covering varied topics in the medical field under the mark "TARGET MDS" and has been recording huge sales from its products all over India.
3. It is stated that defendant no.1 Academist Target MDS Pvt. Ltd. is a private company incorporated on 01.04.2014 and is engaged in the business of providing coaching services CS (COMM) 183/2020 Page 2 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. to students of dental sciences. Defendant no.2 Dr. Gaurav Anand is a doctor qualified in dental sciences and is currently director of defendant no.1. D-2 is also the author of various books published by the plaintiff including the book 'Target Plus' that is infringing the copyright of plaintiff. It is stated that defendant no.3 Dr. Mohit Gautam is a doctor qualified in dental sciences and director of defendant no.1 company. D-3 is also the author of various books published by plaintiff. It is stated that defendant no.4 is publisher that has undertaken to publish and distribute the infringing copies of the book, which is subject matter of the instant suit, across India. It is stated that defendant no.5 Dentaltargetplus.com is the website that is offering the infringing copies of the book for sale, which is the subject matter of the suit, for sale.
4. It is stated that association between plaintiff and defendants started in the year 2014 when defendant No. 2 and defendant No.3 entered into a Book Author Publishing Agreement dated October 1, 2014 with the plaintiff and defendant No.2 and defendant No.3 agreed to author a set of books for the plaintiff which was identified as future copyrighted works in lieu of monthly considerations.
5. It is further submitted that thereafter, defendant No.2 and defendant No.3 entered into a Book Author Publishing Agreement dated April 13, 2016 and further Agreement dated October 29, 2016 with the plaintiff and these CS (COMM) 183/2020 Page 3 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. subsequent agreements merely gave effect to amendments in the list of books and carried forward the arrangement between the parties for completion of pending manuscripts. It is stated that Under Clause 3 of the Book Author Publishing Agreement, defendant No.2 and defendant No.3 assigned the copyright and all other rights in the said Books in favour of plaintiff and it was agreed by the said defendants that they would have no independent right to assign or transfer or directly exploit the whole or part of the said work. It is stated that despite the cooperation and fulfillment of obligations on the part of plaintiff, defendant No.2 and 3 were unable to complete the manuscripts on time under the Agreements. Consequently, plaintiff had to suffer losses in business as the sales figures of the plaintiff dipped significantly due to the failure of defendant No. 2 and defendant No.3 to fulfill their legal obligations under the said agreements.
6. It is further the case of plaintiff that around the first week of June 2020, it came to the knowledge of the plaintiff that defendant No. 2 and defendant No.3 were trying to publish a separate book on their own under the logo of the plaintiff and under the mark "TARGET MDS" using the material to be delivered to the plaintiff and against the Book Author Publishing Agreements. It is submitted that defendants were using the mark "TARGET MDS" for selling infringing copies of the book as well as for advertisements, and directly dealing in book which infringes copyright of CS (COMM) 183/2020 Page 4 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. plaintiff which was duly assigned to the plaintiff under the Book Author Publishing Agreement bearing the mark Target MDS and also under the mark Target Plus.
7. It is stated that defendants also circulated an advertisement dated 14.06.2020 for offering infringing copies of the book for sale to the public which established their intention of releasing the said book. It is the case of the plaintiff that when plaintiff came to know about the said illegal act of the defendants, plaintiff took a strong objection and confronted the defendants with disapproval regarding their infringing activities over numerous phone calls and the defendants assured the plaintiff that no such act would take place in future. It is stated that shortly after, the defendants not only cropped the plaintiff's logo from the infringing copies of the book but also removed the name of defendant No.2 as Co-Author from the book and the same are now being offered for sale on the website of defendant No.5.
8. It is submitted that plaintiff sent an email dated 20.06.2020 to defendant No.2 and defendant No.3 asking them to fulfill their obligations under the Book Author Publishing Agreement or to return the money that was paid to them under the said Agreement. However, defendant No.2 and defendant No.3 did not tender any reply to the said email. Thereafter, plaintiff sent a notice dated 26.06.2020 to defendants for fulfillment of obligations under the Book Author Publishing Agreement to the defendants. However, CS (COMM) 183/2020 Page 5 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. the defendants have not responded to the said notice till date. It is stated that plaintiff has a reasonable belief that the defendants have deliberately, dishonestly, and with malafide intentions copied the entire content of the manuscript written for the plaintiff under the Book Author Publishing Agreement and have come out with a separate book using the exact same content which is being marketed and sold by the defendants. It is urged that in so far, defendant No.2 and defendant No.3 assigned their rights in the book and the relevant published material, including the future works in plaintiff's favour, the former are in no manner legally authorized to exploit the books and the published material. Based on above facts, plaintiff filed the present suit seeking injunction restraining the defendants from infringing and using the copyrighted content of the plaintiff and passing it off.
9. Plaintiff was granted ex-parte ad-interim injunction on 20.07.2020 which was vacated by the court on 30.07.2022. Defendant no.3 had stopped appearing after a settlement with the plaintiff and regarding D-1 it was informed to the court that the company has been closed and is off record now. The suit as such continued against Defendants no.2, 4 & 5. Written statement was filed by D-3 on 25.02.2021 while defendants no.2 and 4 & 5 filed their written statements mentioned as reply to the petition on 15.04.2021.
CS (COMM) 183/2020 Page 6 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors.
10.On merits the defendants have denied contents of the plaint. The defendant no.2 has alleged that the defendants had purchased the books from City Book Shop worth Rs.5,47,446/- which was to be adjusted from the monthly payment of the defendants, which payment was eventually stopped by the plaintiff. It is stated that defendant no.2 & 3 were the directors of company and both are qualified medical professionals. The company was incorporated inter-alia to carry out test series coaching, publication of books, magazine, journals etc. under the brand name Target MDS. The registration of firm M/s.Target MDS is of 2014 and as per the defendant the books were being published from 2013. It is further stated that defendant no.3 Mohit Gautam is the owner of trademark Target MDS, the same having been registered in his name in classes 35, 16, 40 & 41 in the year 2018. It is further stated that plaintiff being a publisher had with an intention to take advantage of and to utilize market value of defendants' brand name Target MDS had contacted defendants around September, 2014 and deceitfully induced them to end up in a business tie up for publishing book, pursuant whereto an agreement was entered between plaintiff and the defendants. It is further stated that initially the plaintiff paid contractual amount to the defendants, however, after paying 5-6 monthly installments plaintiff became dishonest and stopped paying contractual amount. It is stated that as per agreement the manuscript was submitted by the author to publisher and CS (COMM) 183/2020 Page 7 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. the publisher was required to make change and resend the same to author for correction, however, prior to stopping payment, plaintiff stopped responding to calls of the defendant. It is stated that on the asking of plaintiff defendant no.3 started selling books on the Online platform www.targetmds.com and settled the account arising out of sale transaction till 2017. It is stated that plaintiff has tried to take benefit of favourable clauses of agreement by utilizing brand value of defendant's brand Target MDS and at the same time stopped paying contractual value to the plaintiff while generating huge monetary benefits by publishing of the book.
11.Defendant no.4 is proprietorship concern of Smt.Aekant Anand and it intended to publish books and other study material for competitive exams in the name and style of Target Plus through its online portal Dentaltargetplus.com (D-5). It is stated that these defendants had advertised book published by plaintiff in the name of Target MDS in original condition on their website without any changes. It is stated that no sale of these books were done by defendants and books were removed from the website once they got notice of court. These defendants stated that they were at pre-planning stage of publishing book under the brand name Target Plus, which has not been published as yet.
CS (COMM) 183/2020 Page 8 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors.
12.D-3 has filed written statement. Defendant has challenged the jurisdiction of this court stating that the agreement between the parties spoke of exclusive jurisdiction of Chandigarh Courts. This defendant says that M/s. Target MDS was started under partnership, however, on account of dispute between D-2 & 3, the partnership came to an end in June 2019. He says that D-3 is not associated with book Target Plus or Target Plus Academy in any manner. The trademark Target MDS is a registered trademark with D-3. The plaintiff was never permitted to use trademark Target MDS but was only permitted to publish, advertise and sell the book authored by D-3 for a limited period till the subsistence of book author publishing agreement. There was no assignment of trademark or copyright in favour of the plaintiff. It is stated that no document has been filed by plaintiff to show that copyright was assigned to it. The contents of plaint on merit has been denied.
13. Following issues were framed for trial by the court on 25.11.2022:-
1. Whether the plaintiff/publisher is the owner of copyright in the literary work in view of assignment vide agreements dated 01.10.2014, 13.04.2016 and 29.10.2016? OPP CS (COMM) 183/2020 Page 9 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors.
2. Whether defendants have published the books after assignment of the copyright in the literary work and thereby infringing the copyright of the plaintiff? OPP
3. Whether acts of defendants no. 2 and 3 in offering or sale including advertising, infringing the copyright of the plaintiff? OPP
4. Whether defendant no. 2 and 3 were induced by the plaintiff to enter into agreements dated 01.10.2014, 13.04.2016 and 29.10.2016? If so, to what effect? OPD
5. Whether payments in view of agreements dated 01.10.2014, 13.04.2016 and 29.10.2016 were made by the plaintiff to defendant no. 2 and 3? OPP
6. Whether plaintiff has suppressed that defendants purchased the books worth Rs.5,43,446/- from City Book Shop, which is the retail book shop of the plaintiff, and same was adjusted by the plaintiff from the monthly payment of the defendants? OPD
7. Whether plaintiff is entitled for permanent injunction against the defendants from using the literary work of the plaintiff? OPP
8. Whether plaintiff is entitled to damages of Rs.10,00,000/- as claimed? OPP CS (COMM) 183/2020 Page 10 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors.
9. Whether plaintiff is entitled to a decree of rendition of accounts of profits illegally earned by the defendants by reason of infringement of the plaintiff's copyright? OPP
10. Relief and costs.
14.On 19.12.2023, plaintiff entered into a settlement with D-3 and on the statement of plaintiff, Defendant no.3 was dropped from array of parties.
15. To prove its case, plaintiff examined Sh.Rakesh Jain-
Proprietor of plaintiff firm, as PW-1, who tendered his evidence affidavit as Ex.PW1/A. He tendered Computer print out of details of books previously published by the plaintiff as Ex.P-1 (running into two pages); Photocopy of certificate dated 13.07.2020 given by his Chartered Accountant Sh.Parminder Pal Singh evidencing sales figures of the books and study material of the plaintiff as Ex.P-2; copy of printout of screenshot of ROC website concerning the details i.e. name and ROC number, CIN etc., of defendant no.1 as Ex.P-3; copy of printout of screenshot of the contact details and office addresses of defendant no.1 as per their website as Ex.P-4; copy of printout of screenshot of books displayed for sale on defendant no.5's website as Ex.P-5; Copy of Book Author Publishing Agreement dated 01.10.2014 as Ex.P-6. (OSR);
CS (COMM) 183/2020 Page 11 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. Copy of Book Author Publishing Agreement dated 13.04.2016 as Ex. P-7. (OSR); Copy of Book Author Publishing Agreement dated 29.10.2016 as Ex.P-8. (OSR); Computer print out of ledger account statement of plaintiff w.e.f 01.04.2015 to 31.03.2019 with respect to D-2 and D-3 reflecting the amount paid by the plaintiff to D-2 and D-3 towards royalty as Ex.P-9 (running into 8 pages); Copy of printout of screen shots of whatsapp chats containing the advertisement dated 14.06.2020 of the release of new book of defendants containing title of copyrighted content of plaintiff as Ex.P-10 (running into three pages); copy of computer printout of email dated 20.06.2020 sent by the plaintiff to the defendants regarding pending work and return of payment with respect to Book Author Publishing Agreements as Ex.P-11 (running into two pages); Office copy of legal notice dated 26.06.2020 sent by plaintiff's counsel to the D-2 and D-3 as Ex.P-12; Copy of printout of screenshot from the website of targetmds.in displaying the books containing the copyrighted content as well as published books of plaintiff as Ex.P-13 (running into three pages); Copy of printout of screenshot from the website of dentaltargetplus.com displaying the books containing the copyrighted content as well as published books of plaintiff as Ex.P-14; copy of printout of screenshots showing the previous cropped cover of the Book i.e. Target Plus with D-2 as Ex.P-15; subsequent cropped cover showing deletion of the name of co-author i.e. D-2 as Ex.P-16 and the preview of the CS (COMM) 183/2020 Page 12 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. content of the book Target Plus 2020 Ex.P-17 (running into nine pages); Photocopy of certificate dated 13.07.2020 given by his Chartered Accountant Sh.Parminder Pal Singh evidencing his Annual Turn Over as Ex. P-18; Copy of printout of screenshot advertising the book at a new platform with book titled "GOAL MDS, Success is a decision" by D-2 as Ex. P-19 (running into two pages); copy of printout of screenshot of purchase and confirmation of ebook dated 04.05.2021 as Ex. P-20; copy of print out of screenshot listing on Amazon.in of the e- book GOAL MDS published by D-2 as Ex. P-21; Copy of Agreement dated 16.08.2020 executed between the plaintiff and D-2 & D-3 as Ex. P-22 (OSR).
16. The witness in his cross-examination stated that he had filed a suit because defendant had published books. On specific question he stated that book published by defendant was GOAL MDS and others, of which he did not remember the name. He stated that he used to make monthly payment to defendant no.2, however, could not tell when the last payment was made. He denied the suggestion that he did not make regular payment. He stated that he could not admit or deny that last payment was made to defendant no.2 in July, 2017. He could not tell the month and year in which contents of book were last supplied by defendant no.2. He said that he did not file any case against defendant no.2 regarding non- performance of agreement. He stated that he did not file CS (COMM) 183/2020 Page 13 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. suit for non-performance of agreement against D-2 & D-3 as they were doctors and he did not want to malign their reputation, however, he admitted that the filing of present suit might also have maligned the reputation of D-2 & D-
3. The witness stated that he could not admit or deny the suggestion that he had failed to perform promise as per agreement of October, 2016 as he was defaulting since July, 2017 in payment of monthly remunerations to D-2, as he did not remember since when he stopped paying monthly remunerations to D-2 & D-3. The witness admitted that despite non-payment of money in terms of agreement from July, 2017, defendant no.2 kept sending content to the plaintiff till December, 2017 as a result of which book titled Target MDS 2018 was published. He volunteered that he did not remember exact date, month or year when it was published but it was published in 2017 or 2018 and that it was only a supplement. He stated that he was not paying any royalty to D-2 & 3 apart from payment under agreement. The witness stated that when the questions from any previous year for example 2018 are also printed in 2019, it falls under copyright and when it is about the mark of a company, it falls under trademark. The witness admitted that he had not taken copyright registration for the books published by him which is authored by D-2 or any other author from the copyright Registry. The witness admitted that he has not placed on record infringed books published by D-2, 4 & 5 and stated that he did not have the books but had seen them online.
CS (COMM) 183/2020 Page 14 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. The witness stated that he had not compared the contents from customer and had only heard about the infringed contents. The witness stated that he came to know about the infringement from the customers, who had read the previous as well as current editions. The witness stated that he had not placed any book of his on record. The witness stated that he was still selling the books authored by D-2 on his website www.medioks.com and stated that the royalty of books being sold and of the future contents stood paid to D-2.
17.There was only one witness examined by defendants, which is Sh. Gaurav Anand. The witness was given no.2 as he was defendant no.2. He at times has been mentioned as DW-1 also, however, it is only one witness Dr. Gaurav Anand. He has tendered his evidence by affidavit as Ex.DW2/1. He relied upon the documents as mentioned in his affidavit from Ex.DW2/A to Ex.DW2/F.
18.DW-2 in his cross-examination stated that he had signed two agreements with the plaintiff without any pressure or coercion. He did not take any action against plaintiff after plaintiff stopped making payment as per last agreement dt. 29.10.2016. He further stated that he had completed his target as per the agreement although the payment was stopped in July, 2017. Witness stated that address 544, Rose Street, Majitha Road, Amritsar belonged to Dr. Mohit Gautam-D-3 (the plaintiff has settled the matter with him).
CS (COMM) 183/2020 Page 15 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. Witness admitted having authored a book named GOAL MDS 2021, which was exhibited as Ex.DW2/P1. He stated that NEET 2021 pattern was common to annexure P1/P and Ex.DW2/P1. Witness stated that he knew Dr. Saransh Tuli as mentioned in page 119 of the plaint but stated that he did not remember if Dr. Saransh Tuli contributed to any of his books. He clarified that NEET pattern changed after NEET 2018. The theory as well as syllabus also changed with change in exam pattern. Witness admitted having authored and published book Ex.DW2/P2. Witness stated that domain TargetMDS.in is registered in the name of Dr. Mohit Gautam. Witness stated that the name on Ex.P-15 was not his name. He admitted that questions in examination were repeated after change of syllabus in NEET 2018 and volunteered that questions were always repeated from previous papers. There were several questions regarding complete work having been supplied or not. In response to questions of Ld. Counsel as to whether any acknowledgment was given regarding completion of work, witness stated that work was sent by defendant and no response regarding it being incomplete was received by him, therefore, it would be considered that the work was accepted as complete.
19.Arguments were heard from Sh. Abhishek Jaina & Ms. Ratakshi Sarvaria, Ld. Counsels for plaintiff as also from Sh.Lokesh Nath Jha, Sh.Kashish and Ms.Nikita Maurya, Counsel for defendants no.2, 4 & 5.
CS (COMM) 183/2020 Page 16 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors.
20.Upon the basis of evidence and arguments issue-wise findings are as under:-
21.Issue No.4:- Whether defendant no.2 and 3 were induced by the plaintiff to enter into agreements dated 1.10.2014, 13.04.2016, and 29.10.2016? If so, to what effect? OPD
22.The contention of the defendant no.2 that he was induced by the plaintiff to enter into Book Author Publishing Agreements is without any merit. Defendant No. 2 in his written statement has averred that the plaintiff deceitfully induced him to enter into a business tie up for publishing a book for medical aspirant students, as a result of which defendant no. 2 entered into the contract with the plaintiff on 01.10.2014.
23.Apart from the mere statement in his WS, defendant no.2 has not shown what kind of inducement was offered, how it was offered and what was it's effect on him. In fact, after the initial agreement between the parties on 01.10.2014, defendant no.2 further entered into same agreements with the plaintiff on 13.04.2016 and 29.10.2016. The fact that defendant no.2 entered into subsequent agreements with plaintiff with similar effect negates the defence that defendant entered into the agreements as a result of any inducement.
CS (COMM) 183/2020 Page 17 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors.
24.Furthermore, defendant no.2 in his cross-examination specifically admitted that there was no pressure on him to sign the agreements. Thus it would not be right to say that defendant no.2 entered into the agreements as a result of any inducement from the side of plaintiff.
This issue is decided in favour of plaintiff and against the defendant.
25. Issue No.5:- Whether payments in view of agreements dated 01.10.2014, 13.04.2016 and 29.10.2016 were made by the plaintiff to defendant no. 2 and 3? OPP
26. The onus to prove that all the payments in terms of above three agreements were made to the defendants was on the plaintiff. The plaintiff in support of its contention has filed statement of account reflecting the amount paid by plaintiff to D-2 & D-3. The document is Ex.PW1/J. Relevantly, the agreement dt.01.10.2014 had expired on 30.09.2015, the payments therefore, were due on account of the other two agreements only. The plaintiff in his evidence is referring to the payment of Rs.1,41,700/-, which was to be paid by him to the defendants and with reference to that he has relied upon Ex.PW1/J. In his evidence he has not stated anything about the payments made in the other two agreements specifically.
27. As per agreement Ex.P7 dt.13.04.2016 the publisher i.e the plaintiff had agreed to pay to the author a sum of CS (COMM) 183/2020 Page 18 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. Rs.30,000/- per month till the termination of the agreement or till 13.04.2019 whichever is earlier. As per agreement Ex.P8 (dt.29.10.2016 clause 6) the publisher i.e plaintiff was to pay to the author a sum of Rs.1,41,700/- per month till the termination of the agreement or till 13.04.2019 whichever was earlier. The payment was to be made by 10th day of each month. No specifications have been given by the plaintiff in the suit showing as to which payment in the statement of account was on account of which agreement. Admittedly, there is no payment being reflected in the entire statement of account after July, 2017. PW-1 admitted in his cross-examination the suggestion that despite plaintiff not making the payment as per the terms of agreement since July, 2017, D-2 kept sending the contents till December, 2017, as a result of which book titled Target MDS 2018 was published. He stated that this was only a supplement. The witness stated that he could not admit or deny the suggestion that he had failed to perform the promise as per agreement of October 2016 as he was defaulting in paying the monthly remuneration to D-2 since July, 2017. He stated that he did not remember the date & month since when he had stopped paying monthly remuneration to D-2 & D-3. Since it was the contention of plaintiff that he had stopped paying to the defendants after they stopped providing content, it was for him to prove as to when exactly the defendants stopped providing the contents to him and what steps did he take to get the contents and how many times CS (COMM) 183/2020 Page 19 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. did he write to the defendants asking for the content. The plaintiff is relying upon Ex.P11 an email allegedly written by him to the defendants on June, 20 (Saturday). Complete date of this mail is not mentioned anywhere to conclude on which date it was exactly sent. The plaintiff has not proved certificate as required under Indian Evidence Act/Commercial Courts Act/BSA in support of this email. The plaintiff is relying upon legal notice Ex.P12 dt.26.06.2020. No receipt of postal circulation of this legal notice has been placed on record. The plaintiff thus has failed to prove that he made any communication with defendants regarding non-supply of contents at any point of time.
28. Relevantly, he has admitted that the contents were supplied to him till December, 2017. It was therefore, for him to prove as to how the contents supplied to him were short or not supplied though he had stopped making payment after July, 2017. The plaintiff admitted in his cross-examination that he did not file any case against D-2 for non- performance of agreement. There is no communication placed on record by plaintiff from 2017 till 2019 whereby he informed to the defendants that the regular contents were not being supplied or that the payment was not being made because the content was not being supplied. The plaintiff has failed to prove as to when the defendant no.2 & 3 stopped supplying the contents to him. He has admitted the suggestion that contents were supplied to him CS (COMM) 183/2020 Page 20 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. despite his not making the payment after July, 2017. It is therefore, to be held that plaintiff has failed to prove the payment made by him in terms of agreement dt.29.10.2016 to defendants no. 2 and 3.
This issue is therefore, decided against the plaintiff and in favour of defendants.
29. Issue No.1:- Whether the plaintiff/publisher is the owner of copyright in the literary work in view of assignment vide agreements dated 01.10.2014, 13.04.2016 and 29.10.2016? OPP
30.It was argued by Ld. Counsel for plaintiff that ownership of copyright in the work stood transferred to the plaintiff for which he is relying upon clause 3 of Book Author Publishing Agreement, wherein D-2 & D-3 transferred to the plaintiff copyright and all other rights throughout the world. It was argued that D-2 & D-3 did not have any independent right to assign and transfer work to third party or to directly exploit the same. It is stated that D-2 was receiving monthly considerations from plaintiff under the agreement.
31.Section 18 of the Copyright Act permits the copyright owner to assign the copyright either wholly or partially and either generally or subject to limitation and either for the whole term of the copyright or any part thereof. Section 19 of the Act stipulates the mode of assignment.
CS (COMM) 183/2020 Page 21 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. Sub Section (1) thereof provides that the assignment has to be in writing signed by the assignor or by his authorized agent. As per sub Section (2) of Section 19 of the Act, in the assignment of the copyright, the work (to be assigned) is to identified.
32.Clause 3 of the Book Author Publishing Agreement dated 29/10/2016 reads as under:-
"The authors hereby assign and transfer exclusively to the publisher, during the whole term of copyright, to the maximum extent possible, the copyright and all other rights throughout the world in and to the work, including without limitation the exclusive right to produce, publish, reproduce, transmit, sell and distribute the work or any part of the work, in all media now known or hereafter devised, including without limitation all electronic and digital media, to create or have created any revision thereof, to make derivative works, adaptations, abridgments or translations, and to license and authorise others to do so, and all other subsidiary rights. The authors understand that this assignment and transfer means that the authors have no independent right to assign or transfer the work in whole or in part to third parties or to directly exploit the work. This section shall survive the termination of this agreement."
33.The work as mentioned in annexure to the first agreement are (i) Target MDS AIIMS (ii) Target MDS All India Post CS (COMM) 183/2020 Page 22 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. Graduate Entrance Examination for MDS (AIPG) (iii) Target MDS PGI Dental and (iv) Target MDS regional. Subsequently, agreement dt.13.04.2016 Ex.P7 was entered between the parties whereby the works were identified in annexure as Target MDS AIIMS (July, 2016, July, 2017 & July, 2018); Target MDS PGI (February, 2017, February 2018 & February 2019); Target AIPG (supplement March- April, 2017,); Target MDS AIPG (March-April-2018 and March-April, 2019); Target MDS 2016 (September, 2016); Target MDS 2017 (September, 2017); Target MDS 2018 (September, 2018); Target MDS State Exams (Tentative in May, 2017, May, 2018 & April, 2019); Target MDS Basic Sciences (September, 2016); Target MDS Clinical sciences (March, 2017); Target MDS Basic Sciences (April 2018); Target MDS Clinical sciences (April, 2018). Thereafter, plaintiff and defendants entered into third agreement Ex.P8 on 29.10.2016, wherein Target MDS AIIMS 2016 and Target MDS State Exams (tentative, May 2017, May 2018 and April 2019) were deleted and Target MDS Basic Sciences and Target MDS Clinical Sciences (April, 2019) were added.
34.Ld.Counsel for defendants had argued that Target MDS is a brand name registered in the name of D-3 in respect of which several documents have been placed on record. There is admittedly no document on record to show that this trademark was ever assigned either by D-2 or D-3 to plaintiff through any agreement or otherwise. It is stated CS (COMM) 183/2020 Page 23 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. that D2 & 3 had published first book titled Target MDS in 2012 of which the copyright was registered on 17.12.2017 in the name of D-2 & D-3 as per Ex.DW2/B before the assignment of work under mentioned titles in favour of plaintiff.
35.As per Section 13 of the Copyright Act, copyright can be assigned either wholly or partially. The effect of assignment being that the assignee becomes the owner of the copyright for all the purposes set out in the assignment agreement. It may be noted here that in no uncertain terms clause 3 of the Book Author Publishing Agreement assigns the copyright and all other related rights to the plaintiff. The grant of copyright, however, is to specific titles starting with Target MDS. It is not recorded anywhere that the publisher was given copyright i.r.o the title Target with any other prefix or suffix. Relevantly, trademark Target MDS is registered in the name of D-3 and has not been assigned to plaintiff per se. The plaintiff as per agreements was assigned literary work contained under specific titles mentioned hereinabove. Thus, though there was assignment of work it was initially limited to work contained under titles (i) Target MDS AIIMS (ii) Target MDS All India Post Graduate Entrance Examination for MDS (AIPG) (iii) Target MDS PGI Dental and (iv) Target MDS regional. Later, vide agreement Ex.P8 plaintiff was provided copyright in works in a total 17 titles. All these titles were beginning with Target MDS.
CS (COMM) 183/2020 Page 24 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors.
36.Further coming to the duration of assignment of copyright, although it is written in the agreement that assignment was for all times to come, there were stipulations regarding monthly payments to the defendants. Clause 9 of the agreement dated 29.10.2016 talks about Terms and Termination and reads as follow:-
"This agreement shall be in force for a period of 29 Months from the date of execution."
As per this clause the agreement was to end on 13.04.2019. Further clause 6 of the agreement which talks about consideration reads as, "The publisher shall pay to the Authors a sum of Rs.1,41,700/- per month till the termination of this agreement or till 13.04.2019, whichever is earlier. A combined reading of Clauses 6 and 9 of the agreement would show that there was no specific royalty fixed for assignment of copyright, however, the consideration for the assignment was to be given till 13.04.2019 as is apparent from Clause 6.
Plaintiff in his cross-examination admitted that he did not make monthly payment to the defendants after July, 2017. He claims that it was not paid because the work was not completed, however, later during cross- examination he admitted the suggestion of Ld. Counsel for defendant that despite not making payment as per terms of agreement since July 2017, D-2 kept sending the contents till December, 2017 as a result of which book titled Target MDS 2018 was published though he clarified that it was CS (COMM) 183/2020 Page 25 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. only a supplement. The fact remains that the defendant no.2 kept supplying material although the plaintiff had stopped making the payment. Witness stated in his cross- examination that he could not tell when the contents for publication were last supplied to him. It is the case of plaintiff that the defendant had stopped supplying the contents, therefore, it was for the plaintiff to have stated categorically as to when defendants stopped supplying the material to him, more so when it is the claim of the defendant that he kept supplying the material despite non- payment of remuneration and it is admitted case of the parties that a supplement was published after the plaintiff stopped making the payment. Ideally it could not have been expected from the defendants to keep supplying the material when the plaintiff had chosen not to pay the remuneration.
37.Coming to Clause 3 of the agreements stating that the assignment of copyright shall survive the termination of agreements has to be held to be void for the simple reason that there can be no assignment without payment of royalty/remunerations. It needs to be noticed that plaintiff has admitted in his cross-examination that he is still selling the books published by defendants and no royalty is being paid to them. The agreement is silent about the royalty to be paid to defendants after 2019. All it talks about is monthly remuneration for the authors till 13.04.2019 and that too has not been paid by the plaintiff. As per clause CS (COMM) 183/2020 Page 26 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. 1(a) in case of delay in payment by the publisher, without prior understanding between the parties, the agreement was to stand terminated pursuant to section 1 (f). Section 'f' however, when recording termination of agreement refers to section 1 (c) and 1 (d) which relate only to the rights of plaintiff on non-delivery of work. It only speaks of the payments which the author was expected to return to the publisher and does not mention about the rights of author on account of non-payment except for the fact that the agreement was to stand terminated if the payments were not made.
It is settled law that in cases of proforma agreements entered into between the parties, the benefit is to be given to the party which is not involved in creation of such agreements. A perusal of agreement would show that though all the rights of plaintiff have well been taken care of in as much as a clause regarding return of entire payment made to the authors has been included in case of non-supply of work; there is no such arrangement made for defendants in case of failure of plaintiff in making the payment of remuneration except for writing that the agreement would stand terminated. How the defendants were to be compensated if the payments were not made to them and yet they provided the work as is the admitted case between the parties in view of the cross-examination of PW-1, is not recorded anywhere in the agreement. How the defendants' right to get their work published and earn money out of their genuine work in case plaintiff stops CS (COMM) 183/2020 Page 27 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. publishing their work is to be protected during the period of agreement, is also not recorded anywhere in the agreement. Relevantly, mere termination of agreement was not going to benefit the defendants in anyway. It is also not recorded anywhere as to what will be the rights of defendants in copyright if the plaintiff stops paying the remuneration/royalty as per agreement.
38.In view of specific clause for the monthly remuneration till 13.04.2019 and termination of agreement on 13.04.2019, I am of the opinion that the plaintiff having violated the condition of payment of monthly remunerations, which he has claimed to be royalty in the plaint, there could be no future assignment without ensuring that defendants were paid the royalty as agreed, more so when the plaintiff admittedly continues to sell the books of defendant on his website as admitted by him in cross-examination. Thus, the plaintiff though it got the ownership of copyright by virtue of agreements, however, on account of non-payment of royalty/remunerations in terms of the agreements, it lost the right assigned to him in the copyright.
This issue is therefore, decided against the plaintiff and in favour of defendants.
39.Issue No.2:- Whether defendants have published the books after assignment of the copyright in the literary work and thereby infringing the copyright of the plaintiff ? OPP And CS (COMM) 183/2020 Page 28 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. Issue No.3:- Whether acts of defendant no. 2 and 3 in offering for sale including advertising, infringes the copyright of the plaintiff ?OPP And Issue No.7:- Whether plaintiff is entitled for permanent injunction against the defendants from using the literary work of the plaintiff? OPP And Issue No.8:- Whether plaintiff is entitled to damages of Rs.10,00,000/- as claimed? OPP And Issue No.9:- Whether plaintiff is entitled to a decree of rendition of accounts of profits illegally earned by the defendants by reason of infringement of the plaintiff's copyright? OPP
40.With regards to publication of books by defendant plaintiff is interalia relying upon Whatsapp chats containing advertisement dt.14.06.2020. The document is Ex.P1/K and has been exhibited in evidence as Ex.P10. There is no mention in the plaint or evidence as to on whose number the advertisement was sent. It is not stated that the number being shown on the document is of the plaintiff and that the chat was downloaded from his phone number. The plaintiff thus has not been able to prove the screenshots by producing the best evidence of the person who had received these advertisements. Plaintiff is relying upon Ex.P15 & Ex.P16 showing screen-shots to show that D-1 CS (COMM) 183/2020 Page 29 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. is involved in publishing of infringing copies of the book Target Plus and later his name was removed from the cover. Again the plaintiff has not tendered in evidence supporting affidavit u/s. 65-B of the Indian Evidence Act/the certificate issued under Commercial Courts Act or such other certificate as could have proved the genuineness of these documents. DW-2 has denied these documents in cross-examination. In absence of any such certificate these electronic evidences (screen-shots) cannot be considered by the court for any practical purpose.
41.It was argued by Ld. Counsel for defendants that plaintiff has failed to produce actual work over which the copyright is being claimed by the plaintiff.
42.The plaintiff is claiming violation of copyright. It has been held hereinabove that the copyright was granted to the plaintiff in respect of the work under specific titles which have been mentioned hereinabove. The plaintiff has not been able to prove that the defendants violated copyright in any of the above titles as the plaintiff despite several opportunities granted failed to produce any book containing aforesaid title having been sold by the defendants.
43.It was argued by Ld. Counsel for defendants that plaintiff is claiming that defendants infringed the copyright of plaintiff while publishing the book Targetplus, however, CS (COMM) 183/2020 Page 30 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. the original content of copyright work has not been proved by the plaintiff. It was argued that no book by the name of Target plus was published by defendants ever. It was argued by Ld. Counsel for the defendants that the books in question are based on MCQ patterns and questions are sample questions and memory based questions asked by the regulatory, who conducts the exams i.e AIIMS, NEET, PGI. The same as such is not original work.
44.The court vide order dt.24.02.2022 had directed the plaintiff to file any of its published books, which is subject matter of suit. The plaintiff after the conclusion of its evidence produced a book by the name of GOAL MDS 2021 and one book by the name of Target MDS 2018. Defendant no.2 admitted that book GOAL MDS 2021 was published by him and the same was exhibited as Ex.DW-2/P1. The book Target MDS 2018 though filed in court was not tendered in evidence of either PW-1 or DW-1. The plaintiff was unable to show as to how the book GOAL MDS 2021 was violating any of the works of plaintiff over which the copyright was granted to him by way of annexures to the agreements; since the comparison of the plaintiff's work and the contents of GOAL MDS 2021 was neither mentioned in plaint nor specified in evidence. In fact, the case of the plaintiff was regarding infringement through Target Plus, which book was never produced in the court at any point of time.
CS (COMM) 183/2020 Page 31 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors.
45.It would be relevant to note that plaintiff himself has admitted that he has not seen the contents of the infringing book and that the same was told to him by the customers. None of such customers has been examined by the plaintiff. The plaintiff admitted that he was not in possession of infringing book Target Plus. He admitted that he had not compared the contents of the book himself. He stated that the comparison is usually done by doctors and regular customers/readers of the book, who confirmed the infringement. Admittedly, not only no book was tendered in evidence in court for comparison but also no expert or reader of book has been examined who could depose that there was any infringement of the copyrighted material. The application of the plaintiff u/o 39 rule 1 & 2 CPC was dismissed on the ground that the work which was infringed was not produced in the court and till date the plaintiff except for filing one book by the name of GOAL MDS has not produced any evidence proving the infringement of copyright on part of defendants by using the title Target Plus.
46.The claim of plaintiff for infringement through GOAL MDS came during the pendency of the suit apparently because the book was published after the institution of suit. Plaintiff to claim that the contents of GOAL MDS were in fact infringing the work contained in books of which copyright was granted to him under the title Target MDS was expected to produce the work of its publication CS (COMM) 183/2020 Page 32 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. in original for comparison with the alleged infringing book GOAL MDS Ex.DW2/P1.
47.As stated hereinabove there is nothing on record which can show that contents of GOAL MDS are in fact infringing the publication of plaintiff in any manner.
48.Plaintiff in para 28 of the plaint states that it was sometime in June 2020 that it came to his knowledge that defendants were trying to publish another book on their own under the mark 'Target MDS' against the Book Author Publishing Agreement. There is no evidence on record to prove this contention or apprehension of the plaintiff. It is not the case of the plaintiff that before the end of agreement viz 13.04.2019, the defendants were engaged in any infringing activity. It has been held hereinabove that plaintiff on account of his non-compliance of agreements lost the assignment of copyright in his favour. It is also admitted that the defendant no.3 is the registered owner of trademark 'Target MDS' and the copyright granted to the plaintiff was in respect of some of the titles containing Target MDS.
49.In view of above, the plaintiff has not been able to prove that the defendants infringed any of the work of which copyright was granted to the plaintiff. The apprehension of plaintiff is based on no actual evidence.
CS (COMM) 183/2020 Page 33 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors.
50. The present case appears to be a case of complete break down of agreement between the parties, where one party alleges that the other stopped paying and therefore, supply of content was stopped after a while and other is alleging the content was stopped and therefore, the payment was not made. Except for the oral statement there is no communication on record to show as to how and when the agreement failed. It can also be seen from the evidence and the arguments that the agreement was entered into between plaintiff and two authors and there were disputes between the two authors on account of which the possibility of future work to be supplied to the plaintiff was also hampered. Though it is the claim of defendant no.2 and admitted by plaintiff in his cross-examination that defendant no.2 inspite of everything had supplied the contents to the plaintiff till December, 2017 and he was not paid anything beyond July, 2017.
In the cross-examination of DW-1 plaintiff put a suggestion to the witness that he was incapable of writing as sole author. It was also suggested to the witness that he as author had no work and therefore, had signed agreement with publisher to get wrongful gains. These suggestions would weaken the case of plaintiff since on one hand the plaintiff is taking a plea that the defendant no.2 had started publishing books which were infringing his copyright while on the other hand he says that defendant no.2 on his own is incapable of publishing any work. If the suggestions of plaintiff are taken at the face value then the CS (COMM) 183/2020 Page 34 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. defendant no.2 being incapable of authoring any book as a sole author is also incapable of infringing the copyright of the plaintiff. If the defendant no.2 enters into an agreement with a third party and the two of them publish a work it will include the contribution of defendant no.2 and such other person (in GOAL MDS Dr. Saurabh Arya) and would be a new and a fresh work which can by no stretch of imagination be termed as infringing the copyright of work granted to plaintiff. In view of above, the work in GOAL MDS 2021 Ex.DW2/P1, having contribution of defendant no.2 and Dr. Saurabh Arya cannot be held to be infringing the copyright assigned to plaintiff.
Ld.Counsel for the plaintiff had argued that there were differences between the two authors because of which the work could not be completed and submitted with plaintiff in time. DW-2 in his cross-examination has stated that the differences between him and his partner had started in 2019-2020 and clarified on the next date that these differences had affected his work as the work of plaintiff was already finished by February, 2019. No suggestion was given to the witness that the differences between them had arisen before July, 2017, the date of last payment by plaintiff. It was also not suggested to the witness that his statement that their work with plaintiff had already finished by February, 2019 and it was already submitted by the time when dispute arose, was incorrect. If the defendants as claimed by the plaintiff were not supplying the work, plaintiff could have filed suit for CS (COMM) 183/2020 Page 35 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. specific performance which admittedly was not filed by him. The reason given by the plaintiff for the same is also absurd. The plaintiff in such situation in terms of clause 1(c) could have sought return of payment as was agreed between the parties. None of these steps were taken by the plaintiff. What the plaintiff by present suit is trying to do is to stop the defendants from earning their livelihood by publishing a new book in a different name in view of failure of the agreement between the plaintiff and the two defendants and the differences between the two authors.
51. The agreement was to end in April, 2019, whereafter D-2 started his own book by the name of GOAL MDS which has been proved on record and the defendant has claimed categorically in his evidence that the pattern of exam had changed after 2018, the work in the GOAL MDS was different from the work in Target MDS. In view of the categoric plea of DW-2 and his evidence to that effect it was for the plaintiff to prove as to how the work in GOAL MDS was infringing the work of Target MDS for which he was required to prove a comparative chart of the infringement.
It was argued by Ld. Counsel for the plaintiff that the plaintiff has approached the court for QUIA-TIMET injunction which is based on the fear that the defendants might in future infringe the copyright of plaintiff. The fact, however, remains that plaintiff has to substantiate on record that the fear in the mind of plaintiff is based on CS (COMM) 183/2020 Page 36 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. some substance. Relevantly, after the injunction granted in favour of plaintiff was vacated by Ld. Predecessor, the plaintiff did not take any steps to get the order set aside by filing appropriate appeal, which would have gone to show that the apprehension in the mind of plaintiff, who continued this suit without injunction, was bonafide. In view of above, the plaintiff has not been able to prove the advertisements etc. screen-shots of which were filed by it on record. The plaintiff has not been able to prove that there was any infringement by the defendant no.2 by publishing GOAL MDS 2021. Plaintiff thus is not entitled for injunction as sought. On account of failure on this issue, the plaintiff shall also not be entitled for damages. The plaintiff has not been able to prove on record that any book by the name of Target Plus was ever published by the defendants. The plaintiff as such, is not entitled for rendition of account, as claimed.
Accordingly, issues no.2, 3, 7, 8 & 9 are decided in favour of defendants and against the plaintiff.
52. Issue No.6:- Whether plaintiff has suppressed that defendants purchased the books worth Rs.5,43,446/- from City Book Shop, which is the retail book shop of the plaintiff, and same was adjusted by the plaintiff from the monthly payment of the defendants? OPD
53. Though the defendants had taken a defence regarding payment of Rs.5,43,446/- having been adjusted from the CS (COMM) 183/2020 Page 37 of 38 Saurabh Medical Publishers Vs. Academist Target MDS Private Limited & Ors. monthly payment of defendant, which eventually was stopped by the plaintiff, the defendant no.2 did not say any such thing in his evidence. There is no mention of this amount anywhere in cross-examination of either PW-1 or DW-1. The defendants therefore, have not been able to discharge the onus to prove the issue. The issue is therefore, decided against defendants.
54. Issue No.10:-Relief and costs. In view of above discussion, suit of plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. Suit stands disposed off. File be consigned to record room.
(ANURADHA SHUKLA BHARDWAJ) District Judge(Commercial Court)-02 South, Saket, Delhi.
Announced in open court Digitally signed
by anuradha
on 07.04.2025. anuradha shukla
Date:
(signed after correction shukla 2025.04.08
15:53:27
on 8th April, 2025) +0530
CS (COMM) 183/2020 Page 38 of 38 Saurabh Medical Publishers Vs.
Academist Target MDS Private Limited & Ors.