Delhi District Court
Rishi Raj vs M/S Orly S Film Productions on 6 January, 2024
IN THE COURT OF Dr. KAMINI LAU: DISTRICT JUDGE
(COMMERCIAL COURT)02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS (COMM.) No. 1079/2020
CNR No. DLCT010045232020
Rishi Raj
Proprietor of M/s. Raj Rishi Films,
C/o 6046/2, Dev Nagar,
Karol Bagh, New Delhi110005
......Plaintiff
Versus
M/s. Orly S. Film Productions
(Orly International)
508, Crescent Towers,
Off New Link Road, Andheri (W),
Mumbai400053
Through Its Partners
......Defendant
Date of filing of suit: 04.08.2020
Judgment Reserved on: 23.12.2023
Date of Judgment: 06.01.2024
TABLE OF CONTENTS
Sr. No. Title Page No.
1 Brief Facts/ Case of the Plaintiff 28
2 Case of the defendant 810
3 Issues 11
4 Evidence & List of Documents 1127
5 Findings & Observations 2748
6 Conclusion/ Relief 49
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020
Judgment dated 06.01.2024 Page No. 1 of 49
Present: Sh. Rajesh Bhatia Advocate for the plaintiff.
Sh. S.K. Sharma Advocate for the defendant.
JUDGMENT:
(1) This is a Civil Suit filed by plaintiff Rishi Raj against the defendant M/s. Orly S Film Productions seeking a decree of Permanent Injunction thereby restraining the defendant firm, its partners, representative and assignees etc. from creating hindrance, trouble in smooth functioning of the business of the plaintiff or creating hindrance while exercising all rights of the plaintiff in respect of films i.e. Wapas, Saranga, Paristan, Bandish, Savera, Dekha Pyar Tumhara, Ek Gaon Ki Kahani, Masoom, Mere Lal, Kailashpati, Oonchi Haveli, Daku Aur Bhagwan, Jai Mahakali, Naradleela, Mata Mahakali and Jai Bhawani. The plaintiff is also claiming a decree of damages to the tune of Rs.10,00,000/ in his favour and against the defendant along with interest @ 18% per annum.
BRIEF FACTS:
Case of the plaintiff:
(2) The plaintiff Rishi Raj is stated to be the Proprietor of M/s. Raj Rishi Films. The case of the plaintiff is as under:
➢ That the plaintiff is engaged in the business of production, film distribution, film exhibition and exploitation and the plaintiff has been enjoying since 1991 all negatives rights with includes satellite, cable, Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 2 of 49 Doordarshan and all other rights which are existing at present or which may occur in future in respect of various films purchased/ acquired from the defendant firm from time to time by virtue of various agreements. ➢ That during the course of business transaction, the plaintiff had entered into various agreements with the defendant firm through its Partner Sh. Chandru Dhanwani in respect of Sixteen Films, details of which are as under:
Sr. No. Film Names Agreement Dates
1. Wapas 25.05.1992
2. Saranga 09.07.1992
3. Paristan 09.07.1992
4. Bandish 07.07.1992
5. Savera 25.05.1992
6. Dekha Pyar Tumhara 04.06.1992
7. Ek Gaon Ki Kahani 08.08.1992
8. Masoom 02.07.1992
9. Mere Lal 02.07.1992
10. Kailashpati 02.07.1992
11. Oonchi Haveli 02.07.1992
12. Daku aur Bhagwan 02.07.1992
13. Jai Mahakali 02.07.1992
14. Naradleela 02.07.1992
15. Mata Mahakali 02.07.1992
16. Jai Bhawani 02.07.1992
➢ That by virtue of above agreements, the plaintiff was
assigned all commercial, noncommercial, theatrical, nontheatrical rights of their exhibition, exploitation and distribution of all gauges: standard (in 35mm Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 3 of 49 16mm, super 8 and all other available nonstandard sizes), all dimensions and mediums (viz. All possible use and utilizations theatrical, nontheatrical, TV telecasting or in any possible manner of their exhibition in Air, Sea & Land of the said pictures for entire India as well as Overseas including Doordarshan rights, TV rights satellite rights etc. by the defendant firm.
➢ That as per Clause 6 of the above agreements the defendant firm has agreed that ".... the first party will not have any title, right, interest or claim on said picture when negative rights includes picture and sound negative is transferred in the name of 2 nd party but after making the full payment to the first party as mentioned above whereas only 2nd party or its agent or subagent will enjoy all the benefits, profits and realization from the said picture as soon as negative rights which includes picture and sound negative is transferred in the name of 2nd party when full payment is made....".
➢ That ever since the date of execution of the above agreements, the plaintiff has been exercising all rights in respect of the above sixteen films and has been selling, exercising satellite rights, TV rights and cable rights etc. including digital rights. ➢ That after receiving all the rights as above, the public notice was also issued in this regard in Trade Magazine Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 4 of 49 dated 08.05.1993 and on 01.08.1992.
➢ That the defendant firm after execution of aforesaid agreement had executed various other declarations/ undertakings through its partner from time to time at various occasion wherein the defendant firm has admitted/ acknowledged execution of the agreements and assigning all the rights in respect of the above films in favour of the plaintiff.
➢ That the defendant firm had also assigned the satellite rights and TV rights of the film 'HIRASAT' after receiving the consideration amount from the plaintiff way back in the year 1992 and 2001 but till date the plaintiff is unable to enjoy the satellite right of the film 'HIRASAT' due to nonexecution of the proper agreement for assigning the satellite rights in favour of the plaintiff despite repeated requests and persuasion from time to time.
➢ That though the plaintiff was assigned all the rights whatsoever in any manner by virtue of aforesaid agreements in respect of the above films, but the defendant firm had been creating troubles through its partners in the peaceful exercise of rights by the plaintiff in the said films.
➢ That after purchase the complete negative rights of the aforesaid sixteen films, the defendant firm illegally and wrongfully started claiming that the satellite rights have not been sold by the defendant firm to the Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 5 of 49 plaintiff.
➢ That the defendant firm was trying to create problem in the smooth enjoyment of the rights by the plaintiff and in order to avoid any frivolous litigation, the plaintiff had been fulfilling the illegal demands of the defendant firm of parting of satellite right in favour of complainant after paying consideration, though the satellite rights were transferred to the plaintiff along with the negative rights.
➢ That with an ill intention and ill motive, the defendant firm had filed a complaint to Indian Motion Picture Producer Association on dated 14.092019 against the plaintiff alleging that the plaintiff has no digital rights in respect of the said films and also levelled other allegations.
➢ That vide letter dated 19.09.2019 the office bearers of the Indian Motion Picture Producers Association sought a response from the plaintiff who had sent separate response vide emails dated 29.06.2020 to the Association thereby denying all the frivolous allegations levelled by the defendant. ➢ That the defendant firm also sent a legal notice dated 12.08.2019 to the plaintiff alleging that the plaintiff is unauthorizedly and illegally exercising certain right in respect of the above films, pursuant to which the plaintiff sent a reply dated 26.09.2019 thereby refuting the allegations made by the defendant.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 6 of 49 ➢ That in the legal notice dated 12.08.2019 as well as in the letter dated 14.09.2019 sent by the defendant to IMPPA, the defendant firm has been illegally exercising digital rights in respect of film Daku Aur Bhagwan and Wapas as well as other films which are subject matter of the present case, whereas in fact the defendant firm had illegally and fraudulently sold the rights of above two films i.e. Daku Aur Bhagwan and Wapas to the plaintiff vide agreements dated 25.05.1992 and 02.07.1992 despite the fact that the rights in respect of the said two films were with M/s. Mahiraj Films and M/s. Bombay United Traders from whom the plaintiff had taken the rights of these two films vide separate agreements.
➢ That the malafide intention of the defendant firm is clear since after executing the aforesaid agreements with the plaintiff in respect of sixteen films, the defendant firm is illegally claiming its rights in these films though the defendant firm has executed agreements and undertakings from time to time in favour of the plaintiff.
➢ That the intention of the defendant firm is not fair and they have given false and frivolous complaints against the plaintiff before IMPPA on 14.09.2019 and also sent a legal notice dated 12.08.2019 on the basis of false and frivolous allegations.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 7 of 49 ➢ That the plaintiff has been suffering huge monetary loss as well as loss of image and reputation in trade community, due to the above acts and conduct of the defendant firm which cannot be compensated in terms of time and money though the plaintiff is claiming a notional damage to the tune of Rs.10,00,000/. ➢ That in case the defendant firm is not restrained from creating hindrance in the peaceful enjoyment of rights of the plaintiff in respect of the aforesaid films, the plaintiff shall further suffer irreparable loss which cannot be compensated in terms of time and money. ➢ That the plaintiff has also filed a criminal complaint against the defendant firm and its partner namely Sh. Chandra Dhanwani under the title Rishi Raj Vs. M/s. Oraly S Film Productios which is pending before the Ld. Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi.
Case of the Defendant:
(3) Pursuant to the filing of the suit, summons were directed to be issued to the defendant. The defendant was duly served after which a Written Statement was filed on behalf of the defendant on 09.11.2021. The case of the defendant is as under:
➢ That the present suit is without any cause of action since the cause of action arose at the Court of Mumbai only and this Court has no jurisdiction to entertain the present suit.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 8 of 49 ➢ That all the agreements were executed at Mumbai and in all the agreements it is mentioned that all the disputes are subject to Mumbai jurisdiction only. ➢ That the plaintiff has not come to this Court with clean hands and has suppressed/ concealed material facts from this Court.
➢ That the defendant has been lawful copy right holder of the films in question.
➢ That in the year 1992 or so, the plaintiff had approached the defendant with a request to assign necessary TV/ Doordarshan right for release and exhibition showing of the said films on Doordarshan TV channel of India and more particularly the right in respect of films.
➢ That during the course of interpretation the defendant had agreed to assign copyrights in respect of all those films lying with him to the plaintiff in the name of various films on limited basis of releasing and showing the same on TV Doordarshan Channel and in the Cinema Halls (Celluloid) release within India only. ➢ That the aforesaid films assigned to the plaintiff only limited copyright and negative right and further the defendant had agreed to assign rights for the limited purpose of some other film in favour of the plaintiff but the plaintiff illegally exploited and infringed the copy rights of the said films.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 9 of 49 ➢ That all the agreements itself show that the said rights were assigned for limited media and for limited territory as mentioned therein but to the shock and surprise of the defendant, somewhere in 2019 the defendant had found that though the defendant had not assigned any copyright/ license of the films or any kind of right in the entire overseas/ universe/ world except India for theatrical (Cinema Hall Celluloid) and Doordarshan TV release and additional concession given with separate letter to release on satellite channel via Cable TV; some of the films were being shown on ZEE TV throughout the world.
➢ That the defendant had also issued a notice dated 21.08.2019 to the plaintiff and the ZEE TV to which the plaintiff sent his reply but ZEE TV failed to respond.
➢ That all the documents also contain a specific clause that in case of dispute, the same shall be "subject to jurisdiction of Court at Mumbai only". ➢ That at no point of time the defendant had assigned rights in respect of any of the films as mentioned above and except copyright and negatives for the limited purpose and limited territory as mentioned in the agreements signed between the parties but the plaintiff by virtue of illegal release and showing of the films on many digital platforms and satellite channel as a result of which the defendant has suffered loss.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 10 of 49 ISSUES:
(4) The plaintiff has filed his replication to the written statement filed by the defendant wherein he has reaffirmed what he has earlier stated in his main plaint. (5) On the basis of the pleadings, vide order dated 09.11.2022 the Ld. Predecessor of this Court has settled the following issues:
Issue No.1: Whether the plaintiff is entitled for the relief of permanent injunction as prayed? (OPP) Issue No.2: Whether the plaintiff is entitled for damages of Rs.10,00,000/ as prayed? (OPP) Issue No.3: Whether the plaintiff has no cause of action to file the suit against the defendant? (OPD) Issue No.4: Whether this Court has no territorial jurisdiction to entertain and try the present suit? (OPD) Issue No.5: Whether the plaintiff is entitled for the pendentelite and future interest, if so at what rate and for what period? (OPP) Issue No.6: Relief.
EVIDENCE & LIST OF DOCUMENTS:
(6) Here, I may note that vide order dated 28.03.2023 this Court had appointed a Court Commissioner for recording the evidence of the plaintiff. Pursuant to the same, the plaintiff Rishi Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 11 of 49 Raj has examined himself as his sole witness as PW1 whereas the defendant company has examined one Chandru Dhanwani as its sole witness as DW1.
(7) Before coming to the testimony of witnesses examined by the parties, the documents relied upon by them are put in a tabulated form as under:
List of documents:
Sr. Exhibit No. Details of document Relied No. upon by
1. Ex.PW1/1 Agreement dated 25.05.1992 in respect Rishi Raj of film Wapas (PW1)
2. Ex.PW1/3 Agreement dated 07.07.1992 in respect of film Bandish
3. Ex.PW1/4 Agreement dated 25.05.1992 in respect of film Sawera
4. Ex.PW1/5 Agreement dated 04.06.1992 in respect of film Dekha Pyar Tumhara
5. Ex.PW1/6 Agreement dated 08.08.1992 in respect of film Ek Gaon Ki Kahani
6. Ex.PW1/7 Agreement dated 02.07.1992 in respect of film Masoom
7. Ex.PW1/8 Agreement dated 02.07.1992 in respect of film Mera Laal
8. Ex.PW1/9 Agreement dated 09.07.1992 in respect of film Daku Aur Bhagwan, Paristan, Jai Bhawani and Kailashpati
9. Ex.PW1/10 Public notice dated 08.05.1993 given by the plaintiff
10. Ex.PW1/10A Public notice dated 01.08.1992 [Here, I may note that inadvertently this document has also been exhibited as Ex.PW1/10 whereas Ex.PW1/10 is the public notice dated 08.05.1993 and hence, in order to avoid any confusion Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 12 of 49 in future, this document shall be henceforth read as Ex.PW1/10A]
11. Ex.PW1/11 Agreement dated 08.10.1992 in respect of film Hirasat
12. Ex.PW1/12 Receipt of Rs.5,000/ in cash executed by the defendant
13. Ex.PW1/13 Letter dated 08.01.2022 sent by the plaintiff to the defendant
14. Ex.PW1/14 Agreement dated 26.11.2007 in respect of film Daku Aur Bhagwan
15. Ex.PW1/15 Letter dated 05.08.1992 sent by Bombay United Traders
16. Ex.PW1/16 Receipt of Rs.32,500/ executed by the defendant
17. Ex.PW1/17 Declaration dated 19.04.1993 (inadvertently mentioned as 29.04.1993 in the affidavit of evidence) executed by the partner of defendant company
18. Ex.PW1/18 Declaration dated 26.04.1993 executed by Partner of Defendant company
19. Ex.PW1/19 Declaration dated 07.07.1992 executed by Partner of Defendant company
20. Ex.PW1/20 Declaration dated 26.04.1993 executed by Partner of Defendant company
21. Ex.PW1/21 Declaration dated 11.06.1992 (inadvertently mentioned as 04.05.1993 in the affidavit of evidence) executed by Partner of Defendant company
22. Mark A Reply dated 26.09.2019 sent by the counsel for the plaintiff to defendant counsel to the legal notice dated 12.08.2019 sent by the defendant.
23. Ex.PW1/23 Declaration dated 07.07.1992 by the Partner of the defendant company
24. Mark B Letter dated 25.08.2019 sent by defendant
25. Mark C Letter dated 19.09.2019 sent by Indian Motion Pictures Producer's Association
26. Mark D Copy of email dated 20.07.2020 Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 13 of 49
27. Mark E Letter dated 14.09.2019 sent by defendant firm to the Secretary, Indian Motion Picture producer's Association to the plaintiff In so far as the defendant is concerned, they have not filed any document along with their written statement nor the witness of the defendant relied upon any document in his affidavit of evidence.
(8) Now coming to the testimony of the witnesses examined by the parties, which are put in a tabulated form as under:
Sr. Details of the Deposition
No. witness
Plaintiff's witness:
1 Rishi Raj PW1 Rishi Raj is the plaintiff himself who in his
(PW1) examinationinchief by way of affidavit Ex.PW1/A
has corroborated what has been earlier stated in the main plaint in toto. He has placed his reliance on the following documents:
1. Agreement dated 25.05.1992 in respect of film Wapas which is Ex.PW1/1.
2. Agreement dated 07.07.1992 in respect of film Bandish which is Ex.PW1/3.
3. Agreement dated 25.05.1992 in respect of film Sawera which is Ex.PW1/4.
4. Agreement dated 04.06.1992 in respect of film Dekha Pyar Tumhara which is Ex.PW1/5.
5. Agreement dated 08.08.1992 in respect of film Ek Gaon Ki Kahani which is Ex.PW1/6.
6. Agreement dated 02.07.1992 in respect of film Masoom which is Ex.PW1/7.
7. Agreement dated 02.07.1992 in respect of film Mera Laal which is Ex.PW1/8.
8. Agreement dated 09.07.1992 in respect of film Daku Aur Bhagwan, Paristan, Jai Bhawani and Kailashpati which is Ex.PW1/9.
9. Public notice dated 08.05.1993 given by the plaintiff which is Ex.PW1/10.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 14 of 49
10. Public notice dated 01.08.1992 which is Ex.PW1/10A. [Here, I may note that inadvertently this document has also been exhibited as Ex.PW1/10 whereas Ex.PW1/10 is the public notice dated 08.05.1993 and hence, in order to avoid any confusion in future, this document shall be henceforth read as Ex.PW1/10A]
11. Agreement dated 08.10.1992 in respect of film Hirasat which is Ex.PW1/11.
12. Receipt of Rs.5,000/ in cash executed by the defendant which is Ex.PW1/12.
13. Letter dated 08.01.2022 sent by the plaintiff to the defendant which is Ex.PW1/13.
14. Agreement dated 26.11.2007 in respect of film Daku Aur Bhagwan which is Ex.PW1/14.
15. Letter dated 05.08.1992 sent by Bombay United Traders which is Ex.PW1/15.
16. Receipt of Rs.32,500/ executed by the defendant which is Ex.PW1/16.
17. Declaration dated 19.04.1993 (inadvertently mentioned as 29.04.1993 in the affidavit of evidence) executed by the partner of defendant company which is Ex.PW1/17.
18. Declaration dated 26.04.1993 executed by Partner of Defendant company which is Ex.PW1/18.
19. Declaration dated 07.07.1992 executed by Partner of Defendant company which is Ex.PW1/19.
20. Declaration dated 26.04.1993 executed by Partner of Defendant company which is Ex.PW1/20.
21. Declaration dated 11.06.1992 (inadvertently mentioned as 04.05.1993 in the affidavit of evidence) executed by Partner of Defendant company which is Ex.PW1/21.
22. Reply dated 26.09.2019 sent by the counsel for the plaintiff to defendant counsel to the legal notice dated 12.08.2019 sent by the defendant which is Mark A.
23. Declaration dated 07.07.1992 by the Partner of the defendant company which is Ex.PW1/22.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 15 of 49
24. Letter dated 25.08.2019 sent by defendant which is Mark B.
25. Letter dated 19.09.2019 sent by Indian Motion Pictures Producer's Association which is Mark C.
26. Copy of email dated 20.07.2020 which is Mark D.
27. Letter dated 14.09.2019 sent by defendant firm to the Secretary, Indian Motion Picture producer's Association to the plaintiff which is Mark E. In his crossexamination by the Ld. Counsel for the defendant, the witness has deposed as under:
➢ That he had purchased the stamp paper for the purpose of preparing the Agreement dated 22.05.1992 for film Wapas in Delhi. ➢ That the agreement was prepared in three pages but only two pages have been filed on record as one paper was inadvertently left while getting the photocopy of the Agreement for filing the case.
➢ That the Agreement for film Wapas was attested on 29.08.2022 at Delhi but he does not remember the exact place.
➢ That it is wrong that the agreement for film Wapas was executed for territory of India and has voluntarily explained that he had taken negative rights for all firms from the defendant which means all rights whatsoever were given to him by the defendant which is clear from Clause 6 of the Agreement.
➢ That it is wrong that the suit is not maintainable in Delhi [When confronted with Clause 10 of the Agreement dated 25.05.1992 of film Wapas, the witness admitted that it has been mentioned that "....in the event of any dispute arising out of this agreement it shall be settled by Bombay Court only..."]. ➢ That the stamp paper for the purpose of preparing the Agreement dated 07.07.1992 for film 'Bandish' was arranged by the defendant.
➢ That the Agreement for film Bandish was attested on 07.07.1992 at Delhi but he does not remember the exact place.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 16 of 49 ➢ That it is wrong that the agreement for film Bandish was executed for territory of India and has voluntarily explained that he had taken negative rights for all firms from the defendant which means all rights whatsoever were given to him by the defendant which is clear from Clause 6 of the Agreement.
➢ That it is wrong that the suit is not maintainable in Delhi [When confronted with Clause 10 of the Agreement dated 07.07.1992 of film Bandish, the witness admitted that it has been mentioned that "....in the event of any dispute arising out of this agreement it shall be settled by Bombay Court only..."]. ➢ That he is the Proprietor of firm M/s. 21 St Century Films which fact is mentioned in the agreement dated 25.05.1992 for film 'Wapas'. ➢ That now this firm is not in existence and has been closed.
➢ That other than this agreement dated 25.05.1992 for film 'Wapas', he has no other document to show he was the Proprietor of this firm.
➢ That the agreement for film Sawera was attested from Notary Public in the year 1992, though he does not remember the exact date and month.
➢ That it is wrong that the agreement for film Sawera was executed for territory of India and has voluntarily explained that he had taken negative rights for all firms from the defendant which means all rights whatsoever were given to him by the defendant which is clear from Clause 6 of the Agreement.
➢ That it is wrong that the suit is not maintainable in Delhi [When confronted with Clause 10 of the Agreement dated 25.05.1992 of film Sawera, the witness admitted that it has been mentioned that "....in the event of any dispute arising out of this agreement it shall be settled by Bombay Court only..."]. ➢ That other than the agreement, he has no other document to show that he is the Proprietor of M/s. 21St Century Films. ➢ That the agreement for film Sawera was prepared in three pages, but while doing the Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 17 of 49 photocopy for filing the case, one page was inadvertently left.
➢ That the agreement for film 'Dekha Pyar Tumhara' was prepared in the year 1992. ➢ That it is wrong that the agreement for film Dekha Pyar Tumhara was executed for territory of India and has voluntarily explained that he had taken negative rights for all firms from the defendant which means all rights whatsoever were given to him by the defendant which is clear from Clause 6 of the Agreement.
➢ That it is wrong that the suit is not maintainable in Delhi [When confronted with Clause 10 of the Agreement dated 04.06.1992 of film Dekha Pyar Tumhara, the witness admitted that it has been mentioned that "....in the event of any dispute arising out of this agreement it shall be settled by Bombay Court only..."].
➢ That the agreement for film 'Ek Goan Ki Kahani' was attested on 29.08.1992.
➢ That it is wrong that the agreement for film Ek Goan Ki Kahani was executed for territory of India and has voluntarily explained that he had taken negative rights for all firms from the defendant which means all rights whatsoever were given to him by the defendant which is clear from Clause 6 of the Agreement.
➢ That it is wrong that the suit is not maintainable in Delhi [When confronted with Clause 10 of the Agreement dated 29.08.1992 of film Ek Goan Ki Kahani, the witness admitted that it is so mentioned in the agreement.
➢ That the agreement for film Ek Goan Ki Kahani was prepared for four pages, however, he has filed only 1st page of the agreement on record whereas three pages were left from being photocopies while filing the case due to his inadvertent mistake. ➢ That it is wrong that he has intentionally not filed on record the complete agreement. ➢ That the agreement for film 'Mere Lal' was attested on 29.08.1992.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 18 of 49 ➢ That it is wrong that the agreement for film 'Mere Lal' was executed for territory of India and has voluntarily explained that he had taken negative rights for all firms from the defendant which means all rights whatsoever were given to him by the defendant which is clear from Clause 6 of the Agreement.
➢ That it is wrong that the suit is not maintainable in Delhi [When confronted with Clause 10 of the Agreement dated 29.08.1992 of film 'Mere Lal', the witness admitted that it has been mentioned that it is so mentioned in the agreement].
➢ That the agreement for film 'Masoom' was attested in the year 1992 and the stamp paper for the purpose of agreement was arranged by the defendant.
➢ That it is wrong that the agreement for film 'Masoom' was executed for territory of India and has voluntarily explained that he had taken negative rights for all firms from the defendant which means all rights whatsoever were given to him by the defendant which is clear from Clause 6 of the Agreement.
➢ That it is wrong that the suit is not maintainable in Delhi [When confronted with Clause 10 of the Agreement dated 02.07.1992 of film 'Masoom', the witness admitted that it has been mentioned that "....in the event of any dispute arising out of this agreement it shall be settled by Bombay Court only..."].
➢ That the agreement for film Daku Aur Bhagwan, Paristan, Jai Bhawani, Kailashpati, Naradleela, Saranga, Mata Maha Kali, Jai Maha Kali, Sati Ansuya were prepared/ executed in the year 1992 and the stamp paper for the purpose of agreement was arranged by the defendant.
➢ That it is wrong that the agreement for the above films was executed for territory of India and has voluntarily explained that he had taken negative rights for all firms from the defendant which means all rights whatsoever were given to him by the defendant which is clear from Clause 6 of the Agreement.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 19 of 49 ➢ That it is wrong that the suit is not maintainable in Delhi [When confronted with Clause 10 of the Agreement dated 09.07.1992 of the above films, the witness admitted that it is so mentioned in the agreement].
Court Observation: The relevant page of the agreement containing Clause 10 has not been placed on record and only pages of the agreement (back to back) have been placed on record.
➢ That he does not remember the total number of pages of this agreement executed between him and the defendant.
➢ That he had entered into agreement with the defendant for approximately thirty films, but the present suit pertains to approximately eighteen films.
➢ That he has filed the present suit for the films Daku Aur Bhagwan, Paristan, Jai Bhawani, Kailashpati, Naradleela, Saranga, Mata Maha Kali, Jai maha Kali, Sati Ansuya, Wapas, Bandish, Mere Lal, Sawera, Ek Goan Ki Kahani, Hirasat and certain other film which he does not remember.
➢ That the agreement for film Hirasat was prepared in the year 1992 and the stamp paper for the purpose of agreement was arranged by the defendant.
➢ That initial agreement for film Hirasat was for Indian territory but later on he also purchased satellite rights for the film Hirasat from the defendant on execution of receipt Ex.PW1/12.
➢ That it is wrong that he was not issued any document by the defendant for assigning satellite right of film Hirasat and has voluntarily explained that Ex.PW1/2 is the document signed and executed by the defendant.
➢ That the portion shown at Point A to A1 is not writing of the defendant and has voluntarily explained that it was written by him (witness) in the presence of the defendant and the same was acknowledged and confirmed by the defendant.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 20 of 49 ➢ That it is wrong that he has himself inserted the portion marked A to A1 on the document Ex.PW1/12 or that it was not written in the presence of the defendant.
➢ That he does not remember the exact date of execution of the document Ex.PW1/12 but it was executed in the year 2001.
➢ That when he had executed the agreements with the defendant for the films Daku Aur Bhagwan and Wapas, he was not aware that the defendant was not having any rights qua these films.
➢ That he is having the agreement qua film Wapas executed between him and M/s.
Bombay United Traders, copy of which is Ex.PW1/D1.
➢ That it is wrong that the defendant was not having complete rights for these two films i.e. Daku Aur Bhagwan and Wapas.
➢ That he had verbally asked the defendant on various occasion that he (defendant) was not having any right qua film Daku Aur Bhagwan and overseas right for the film Wapas. (The witness has voluntarily explained that the defendant had also sold the TV right in respect of films Masoom, Sawera, Bandish, Mere Lal and 5th name he does not remember, but the defendant was not having TV rights of these five films, which films were telecasted on Doordarshan by one Sarwan Trust and payment was made to Sarwan Trust by Doordarshan).
➢ That it is wrong that the defendant was having TV rights in respect of the above five films.
➢ That he was also the proprietor of firm M/s. New Era which has not been closed.
➢ That it is wrong that he has not suffered any financial loss due to act and conduct of the defendant.
➢ That he is not having any agreement for film Oonchi Haweli executed by the defendant in his favour but it was also confirmed by the defendant in various declarations and letters. ➢ That he does not remember whether any agreement for film Oonchi Haweli was Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 21 of 49 executed between him and the defendant. ➢ That it is wrong that subject matter of jurisdiction of all the agreement and declaration which are the subject matter of the suit is in Bombay.
➢ That it is wrong that only rights for territory of India were assigned to him by virtue of above agreements or that overseas rights were not assigned to him by virtue of the above agreements.
➢ That it is wrong that only permission was given to him by virtue of the above agreements and no rights were assigned to him.
Defendant's Witness:
2 Chandru DW1 Chandru Dhanwani is the Proprietor of M/s.
Dhanwani Orly S Film Production, who in his examination in (DW1) chief by way of affidavit Ex.DW1/A has corroborated what he has earlier stated in the written statement.
In his crossexamination by the Ld. Counsel for the plaintiff the witness has deposed as under:
➢ That he is Eleventh standard pass and can read, write and understand little bit English. ➢ That he is engaged in the business of film distribution for last 50 years and has acquired approximately 150200 rights in respect of various films during his life. ➢ That mostly he used to acquire overseas rights.
➢ That he had also acquired TV rights, Cinema Rights in respect of some films.
➢ That there is no fixed definition of negative rights and it depends on Agreement to Agreement.
➢ That the rights which he acquired in respect of 16 films which are subject matter of the present suit, included TV rights, Cinema Rights, Satellite Rights, Overseas Rights and all Negative rights.
➢ That he had entered into agreements
Ex.PW1/2, Ex.PW1/3, Ex.PW1/4,
Ex.PW1/5, Ex.PW1/6, Ex.PW1/7,
Ex.PW1/8, Ex.PW1/9 and Ex.PW1/11 with Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 22 of 49 the plaintiff in respect of films which are mentioned in these agreements.
➢ That he is aware about the contents of these agreements which were signed and executed between him and the plaintiff in respect of films which are mentioned in those agreements.
➢ That the document Ex.PW1/12 bear his signatures at Point X and the signatures of the plaintiff are at Point Y. ➢ That he has not received the letter Ex.PW1/13 from the plaintiff in respect of the film Hirasat.
➢ That the document Ex.PW1/16 bears his signatures at point X1.
➢ That the declaration Ex.PW1/19 was signed by him and bear his signatures at Point X2. ➢ That he is aware about the contents of the declaration Ex.PW1/19 which he had signed after going through and understanding the contents of the same.
➢ That he has no idea whether the plaintiff has enjoyed overseas and satellite rights in respect of the films ever since the date of execution of agreement of films which are the subject matter of the present suit. [The witness has voluntarily stated that he came to know after a long time that the plaintiff is enjoying the satellite and overseas rights of the sixteen films in the entire World without having overseas rights and he has given the permission to exercise satellite rights in Indian Territory to the plaintiff].
➢ That he does not remember the exact day, month and year when he came to know that the plaintiff is exercising the satellite and overseas rights in respect of sixteen films which are subject matter of the present suit. ➢ That he had never given any notice to the plaintiff ever since the date when he came to know that the plaintiff is exercising the satellite and overseas rights in respect of the above films outside the Indian Territory. ➢ That he had issued the public notice in 23 magazines that he has assigned/ given only Doordarshan, Cinema rights and rights Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 23 of 49 which are mentioned in the agreements executed by him in favour of the plaintiff in respect of sixteen films which are subject matter of the present suit.
➢ That he has not filed on record any such public notice given in any Trade Magazine but he has brought the same.
➢ That he is not aware about the Public Notice dated 08.05.1993 in Trade Magazine "Complete Cinema" which is Ex.PW1/10. ➢ That he has not filed any Civil Suit against the plaintiff for exercising the satellite and overseas rights in respect of 16 films outside the Indian Territory by him and has voluntarily explained that he did not file any suit against the plaintiff due to good relation and good faith.
➢ That the relations between him and the plaintiff remained cordial for 45 years since the year 1992 and thereafter the relations were not good because he came to know that the plaintiff had cheated him.
➢ That he kept faith in their association i.e. Indian Motion Picture Producers Association and that is why he did not initiate any proceedings against the plaintiff for 45 years from the year 1992.
➢ That he has filed a complaint in August 2019 against the plaintiff before IMPPA and the Association has not given any findings against the plaintiff.
➢ That he has not filed any litigation against the plaintiff ever since 2019 till date in any of the Court and has voluntarily explained that he did not file any case since the plaintiff has already approached the Court against him in July 2019.
➢ That he had given the letter dated 06.05.1993 to M/s. Bombay Film Laboratory in respect of films Narad Leela, Kailashpati, Mata Maha Kali which letter is Ex.DW1/P1.
➢ That the letter dated 01.12.2006 which is Ex.DW1/P2 was written by producer Neena Films International for the film Daku Aur Bhagwan which bears the signatures of producer Bhupen Desai at Point X3.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 24 of 49 ➢ That the letter dated 01.12.2006 which is Ex.DW1/P3 was written by producer Neena Films International for the film Narad Leela which bears the signatures of producer Bhupen Desai at Point X4.
➢ That the letter dated 01.12.2006 which is Ex.DW1/P4 was written by producer Prabha Pictures for the film Kailashpati and Jai Bhawani which bears the signatures of producer Bhupen Desai at Point X5.
➢ That the letter dated 07.05.1993 which is Ex.DW1/P5 bears his signatures at Point X 6 and has voluntarily explained that he had not read the contents of the same.
➢ That the receipt dated 01.06.1994 which is Ex.DW1/P6 and receipt dated 06.05.1993 which is Ex.DW1/P7 bear his signatures at Points X7 and X8 respectively.
➢ That the settlement dated 06.05.1993 which is Ex.DW1/P8 was also signed by him at Point X9.
➢ That he is not aware as to whether the Doordarshan had released the payment of Rs.4,87,500/ for the film Sawera to M/s. Shrawan Trust.
➢ That he has not given the satellite rights of film Hirasat to the plaintiff and hence, the question of execution of agreement for assigning the satellite rights of film 'Hirasat' in favour of the plaintiff does not arise at all. ➢ That he has not given any of the right in respect of 16 films which are subject matter of the present suit to anyone else ever since the date of execution of the Agreements to those films with the plaintiff.
➢ That he has not given/ assigned the satellite and overseas rights beyond the Territory of India in respect of 16 films which are subject matter to the present suit to anyone else. ➢ That he has not filed any case for seeking declaration of the Agreements executed by him in favour of the plaintiff in respect of 16 films to be null and void in any court of law. ➢ That he had received Rs.35,000/ from the plaintiff in terms of receipt Ex.DW1/P6 Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 25 of 49 towards settlement.
➢ That he does not remember the terms and conditions of the said agreement but he has a copy of the same.
➢ That he had received Rs.15,000/ from the plaintiff in terms of receipt Ex.DW1/P7 for surrendering satellite rights of all sixteen films in favour of the plaintiff as per settlement dated 06.05.1993.
➢ That he had received the balance payment of Rs.35,000/ as mentioned in the receipt Ex.DW1/P7.
➢ That the plaintiff acquired the satellite permission for 16 films after receiving the settlement amount of Rs.50,000/ as mentioned in the receipt Ex.DW1/P7 and has voluntarily explained that the defendant was supposed to make the balance payment of Rs.35,000/ within three months from 06.05.1993 but he made the same on 01.06.1994 vide receipt Ex.DW1/P6. ➢ That he had received the payment of Rs.35,000/ from the plaintiff after one year i.e. on 01.06.1994 on request of the plaintiff and on the recommendation of Sh.
Devender i.e. the Manager of the plaintiff and Sh. D.S. Azad and also due to good relations with the plaintiff.
➢ That the documents Ex.DW1/P9 and Ex.DW1/P10 both dated 09.07.1992 bear his signatures at Point 10 and Point 11. ➢ That he has objection if the plaintiff exercise satellite and overseas rights in respect of above 16 films outside the Indian Territory which objection he is raising since the year 2019.
➢ That he is not aware whether the plaintiff has not been able to enjoy overseas and satellite rights outside the Indian Territory in respect of 16 films due to his objections.
➢ That he has assigned Doordarshan rights, All India Cinema rights and Songs music rights only (in respect of the 16 films) which are mentioned in various public notices published by him.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 26 of 49 ➢ That he has not placed on record the said public notices.
➢ That this fact that he has assigned only Doordarshan rights, All India Cinema rights and Songs music rights only (in respect of the 16 films) to the plaintiff, is mentioned in the agreements signed by him in favour of the plaintiff.
➢ That he is not aware of the meaning of cause of action and jurisdiction as mentioned in Para 11 and 12 of his affidavit.
➢ That he has no knowledge about the court case of file Hirasat filed by Ravi Movie. ➢ That it is wrong that he had been insisting the plaintiff to pay more money for not claiming rights in respect of 16 films.
➢ That it is wrong that he had assigned all the rights including Doordarshan, Cinema Rights, Overseas and Satellite rights for entire world at the time of execution of agreements.
➢ That it is wrong that he has unnecessary creating hindrance in exercising rights by the plaintiff in respect of 16 films.
➢ That it is wrong that the plaintiff has suffered huge monetary loss due to his creating hindrance, objections, litigation for exercising all rights by the plaintiff for 16 films.
➢ That it is wrong that he had lodged a false complaint before IMPPA.
FINDINGS AND OBSERVATIONS:
(9) I have heard the arguments advanced before me by the Ld. Counsels for the parties and considered the written memorandum of arguments filed on their behalf. My findings on the various issues are as under:
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 27 of 49 Issue No.3: Whether the plaintiff has no cause of action to file the suit against the defendant? (OPD) Issue No.4: Whether this Court has no territorial jurisdiction to entertain and try the present suit? (OPD) (10) Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving the above issues was upon the defendant M/s. Orly S Film Productions who in its written statement has raised preliminary objections that the present suit is without any cause of action since the cause of action arose at the Court of Mumbai only and this Court has no jurisdiction to entertain the present suit.
According to the defendant, all the agreements were executed at Mumbai and in all the agreements it is mentioned that all the disputes are subject to Mumbai jurisdiction only. In this regard, Ld. Counsel for the defendant has placed his reliance upon Clause 10 of the agreements Ex.PW1/1, Ex.PW1/3, Ex.PW1/4, Ex.PW1/5, Ex./PW1/7, Ex.PW1/9, Ex.PW1/11 & Ex.PW1/14 wherein it has been duly mentioned that in the event of any dispute arising out of this agreement, it shall be settled by Bombay Court only. In support of his arguments, Ld. Counsel has placed his reliance upon the judgment of the Hon'ble Supreme Court in the case of Swastik Gases Pvt. Ltd. Vs. Indian Oil Corporation Ltd. reported in VI (2013) SLT 529. (11) On the other hand, Ld. Counsel for the plaintiff has vehemently argued that the various agreements have been executed at Delhi and this Court has the territorial jurisdiction Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 28 of 49 since the plaintiff is having his office at 6046/2, Dev Nagar, Karol Bagh, New Delhi110005 which fall within the territorial jurisdiction of this Court. Ld. Counsel for the plaintiff has placed his reliance upon the provisions of Section 62 (2) of the Copyright Act, 1957 and also on the judgments in the case of Shree Rajmoti Industries Vs. Rajmoti Oil Mill Pvt. Ltd. & Ors. reported in 115 (2004) DLT 212 and SAP Aktiengesellschaft & Ors. Vs. Varehouse Infotech reported in MANU/DE/3266/2009. (12) I have considered the rival contentions and the various authorities relied upon by the Ld. Counsels. At the very Outset, I may observe that this issue of Territorial Jurisdiction has been raised by the defendant not only in its written statement but also in the affidavit of evidence. The same being a mixed question of law and facts, the parties have lead their respective evidence and placed their reliance upon the various agreements in respect of the films in question.
(13) I may note that the plaintiff Rishi Raj (PW1) has placed on record the agreements in respect of sixteen films which are Ex.PW1/1, Ex.PW1/3, Ex.PW1/4, Ex.PW1/5, Ex.PW1/6, Ex.PW1/7, Ex.PW1/8, Ex.PW1/9 and Ex.PW1/11. I now proceed to deal with each agreement individually, as under:
Agreement dated 25.05.1992 in respect of the film 'Waapas':
(14) The agreement dated 25.05.1992 in respect of the film 'Waapas' is Ex.PW1/1. A perusal of the same shows that it was made and executed at Bombay and only Notarized at Delhi. The relevant portion i.e. Clause 10 of the above agreement is Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 29 of 49 reproduced as under:
".... 10. In the event of any dispute arising out of this agreement it shall be settled by BOMBAY court only. This Agreement made and executed at Bombay and same is signed and sealed by the contracted parties and shall come into force from the date specified herein above...."
(15) For the purposes of convenience and clarity, page 3 of the agreement containing the above clause, is shown as under:
(16) It is evident from the above that initially the word 'Delhi' was mentioned but later on the word 'Delhi' was scrapped/ cut and instead the word 'Bombay' was inserted/ typed, which confirms the intention of the parties to exclude the jurisdiction of all other courts except those mentioned in the jurisdiction clause Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 30 of 49 i.e. Bombay Courts.
Agreement dated 07.07.1992 in respect of the film 'Bandish':
(17) The agreement dated 07.07.1992 in respect of the film 'Bandish' is Ex.PW1/3. A perusal of the same shows that it was made and executed at Bombay and only Notarized at Delhi. The relevant portion i.e. Clause 10 of the above agreement is reproduced as under:
".... 10. In the event of any dispute arising out of this agreement it shall be settled by BOMBAY court only. This Agreement made and executed at Bombay and same is signed and sealed by the contracted parties and shall come into force from the date specified herein above...."
(18) For the purposes of convenience and clarity, page 3 of the agreement containing the above clause, is shown as under:
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 31 of 49 (19) It is evident from the above that initially the word 'Delhi' was mentioned but later on the word 'Delhi' was scrapped/ cut and instead the word 'Bombay' was inserted/ typed. I also note that the very first line of the agreement Ex.PW1/3 confirms that it was executed at Bombay ("....Articles of Agreement made at Bombay this 7/7/92 at Bombay....."). The manner in which the ouster clause has been inserted in the agreement confirms the intention of the parties to exclude the jurisdiction of all other courts except those mentioned in the jurisdiction clause i.e. Bombay Courts.
Agreement dated 25.05.1992 in respect of the film 'Savera':
(20) The agreement dated 25.05.1992 in respect of the film 'Savera' is Ex.PW1/4. A perusal of the same shows that it was made and executed at Bombay and only Notarized at Delhi. The relevant portion i.e. Clause 10 of the above agreement is reproduced as under:
".... 10. In the event of any dispute arising out of this agreement it shall be settled by BOMBAY court only. This Agreement made and executed at Bombay and same is signed and sealed by the contracted parties and shall come into force from the date specified herein above...."
(21) For the purposes of convenience and clarity, page 3 of the agreement containing the above clause, is shown as under:
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 32 of 49 (22) It is evident from the above that initially the word 'Delhi' was mentioned but later on the word 'Delhi' was scrapped/ cut and instead the word 'Bombay' was inserted/ typed, which confirms the intention of the parties to exclude the jurisdiction of all other courts except those mentioned in the jurisdiction clause i.e. Bombay Courts.
Agreement dated 04.06.1992 in respect of the film 'Dekha Pyar Tumhara':
(23) The agreement dated 04.06.1992 in respect of the film 'Dekha Pyar Tumhara' is Ex.PW1/5. A perusal of the same Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 33 of 49 shows that the stamp paper for purposes of executing the agreement was purchased at Mumbai (Bandra) [as evident from the stamp put on the first page of the agreement]. It is further evident that the agreement was made and executed at Bombay and only Notarized at Delhi. The relevant portion i.e. Clause 10 of the above agreement is reproduced as under:
".... 10. In the event of any dispute arising out of this agreement it shall be settled by Bombay court only. This Agreement made and executes at Bombay and same is signed and sealed by the contracted parties and shall come into force from the date specified herein above...."
(24) For the purposes of convenience and clarity, page 3 of the agreement containing the above clause, is shown as under:
(25) The manner in which the words 'Bombay Court Only' are mentioned in the agreement confirms the intention of the parties to exclude the jurisdiction of all other courts except those mentioned in the jurisdiction clause i.e. Bombay Courts.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 34 of 49 Agreement dated 08.08.1992 in respect of the film 'Ek Goan Ki Kahani':
(26) The agreement dated 08.08.1992 in respect of the film 'Ek Gaon Ki Kahani' is Ex.PW1/6. I note that the very first line of the agreement Ex.PW1/6 confirms that it was executed at Bombay ("....Articles of Agreement made at Bombay this 8 th August 1992....."). A perusal of the same shows that it was made and executed at Bombay and only Notarized at Delhi. The relevant portion i.e. Clause 10 of the above agreement is reproduced as under:
".... 10. In the event of any dispute arising out of this agreement it shall be settled by Bombay court only. This Agreement made and executes at Bombay and same is signed and sealed by the contracted parties and shall come into force from the date specified herein above...."
(27) For the purposes of convenience and clarity, page 3 of the agreement containing the above clause, is shown as under:
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 35 of 49 (28) It is evident from the above that initially the word 'Delhi' was mentioned but later on the word 'Delhi' was scrapped/ cut and instead the word 'Bombay' was inserted/ typed.
Incidentally the word 'Bombay' has been typed slightly below the line and there is an overlapping but the manner in which the words 'Bombay Only' are mentioned in the agreement confirms the intention of the parties to exclude the jurisdiction of all other courts except those mentioned in the jurisdiction clause i.e. Bombay Courts.
Agreement dated 02.07.1992 in respect of the film 'Masoom':
(29) The agreement dated 02.07.1992 in respect of the film 'Masoom' is Ex.PW1/7. I note that the very first line of the agreement Ex.PW1/7 confirms that it was executed at Bombay ("....Articles of Agreement made at Bombay this 2 nd July, 1992....."). It is further evident that the agreement was made and executed at Bombay and only Notarized at Delhi. The relevant portion i.e. Clause 10 of the above agreement is reproduced as under:
".... 10. In the event of any dispute arising out of this agreement it shall be settled by Bombay court only. This Agreement made and executes at Bombay and same is signed and sealed by the contracted parties and shall come into force from the date specified herein above...."
(30) For the purposes of convenience and clarity, page 3 of the agreement containing the above clause, is shown as under:
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 36 of 49 (31) The manner in which the words 'Bombay Only' are mentioned in the agreement confirms the intention of the parties to exclude the jurisdiction of all other courts except those mentioned in the jurisdiction clause i.e. Bombay Courts.
Agreement dated 02.07.1992 in respect of the film 'Mere Lal':
(32) The agreement dated 02.07.1992 in respect of the film 'Mere Lal' is Ex.PW1/8. I note that the very first line of the agreement Ex.PW1/8 confirms that it was executed at Bombay ("....Articles of Agreement made on this 2/7/1992 at Bombay....."). It is further evident that the stamp paper for purposes of executing the agreement was purchased at Mumbai (Bandra) [as evident from the stamp put on the first page of the agreement].
(33) Ld. Counsel for the plaintiff has argued that Clause 10 of this agreement shows that it was executed at Delhi. On the Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 37 of 49 other hand, Ld. Counsel for the defendant has vehemently argued that it is a typographical error since even in other agreements initially the jurisdiction was fixed at Delhi but later on after detailed discussion between the parties, the word Delhi was scrapped/ cut and the word Bombay was inserted/ typed. It is only in this agreement Ex.PW1/8 that this appears to have been overlooked. This argument raised by the Ld. Counsel for the defendant appears to be convincing since in all other agreements initially the word 'Delhi' was typed which was later on scrapped and the word 'Bombay' was typed showing the intention of the parties to exclude the jurisdiction of all other courts except Bombay Courts. In fact, the issue relating to Territorial Jurisdiction has been deliberately and conveniently overlooked by the plaintiff and the witness of the defendant has not been crossexamined on this aspect. At no point of time, did the plaintiff explain this aspect.
Agreement dated 09.07.1992 in respect of the films Daku Aur Bhagwan, Paristaan, Jai Bhawani, Kailaspati, Narad Leela, Saranga, Mata Mahakali, Jai Mahakali and Sati Ansuya:
(34) The agreement dated 09.07.1992 in respect of the films Daku Aur Bhagwan, Paristaan, Jai Bhawani, Kailaspati, Narad Leela, Saranga, Mata Mahakali, Jai Mahakali and Sati Ansuya is Ex.PW1/9. I note that the very first line of the agreement Ex.PW1/9 confirms that it was executed at Bombay ("....Agreement of Articles made at Bombay this 9/7/1992 at Bombay....."). It is further evident that the stamp paper for Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 38 of 49 purposes of executing the agreement was purchased at Mumbai (Bandra) [as evident from the stamp put on the first page of the agreement]. Here, I may mention that an incomplete copy of the agreement has been filed by the plaintiff. Only one page with printing on back to back has been placed on record and the complete agreement having the jurisdiction clause has not been filed by the plaintiff, for which an adverse inference is drawn against the plaintiff.
Agreement dated 09.10.1992 in respect of the film 'Hirasat':
(35) The agreement dated 09.10.1992 in respect of the film 'Hirasat' is Ex.PW1/11. A perusal of the same shows that it was made and executed at Bombay. The relevant portion i.e. Clause 6 of the above agreement is reproduced as under:
".... 6. That in case of any dispute arising out of this agreement the same shall be referred to the Court of Bombay only and the Bombay Courts alone shall have jurisdiction...."
(36) For the purposes of convenience and clarity, page 2 of the agreement containing the above clause, is shown as under:
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 39 of 49 (37) The manner in which the words 'Bombay Only' and 'Bombay Courts alone shall have jurisdiction' are mentioned in the agreement confirms the intention of the parties to exclude the jurisdiction of all other courts except those mentioned in the jurisdiction clause i.e. Bombay Courts. (38) The plaintiff Rishi Raj (PW1) has been duly confronted with the above agreements and has been cross examined with regard to the purchase of stamp papers and the purposes for which the stamp papers purchased. The plaintiff claimed that the stamp papers had been purchased by him but when asked about the details he has given vague and evasive replies. The relevant portion of his crossexamination is reproduced as under:
"..... I had purchased the stamp paper for the purpose of preparing the Agreement dated 25.5.1992 for film Waapas in Delhi. It is correct that the Agreement was prepared in three pages but only two pages have been filed on record as one paper was inadvertently left while getting the photocopy of the Agreement for filing the case. The Agreement for film Waapas was attested on 29.08.1992 at Delhi. I do not remember the exact place. It is wrong to suggest that the Agreement for film Waapas was executed for territory of India. (Vol. I had taken negative rights for all film from the defendant, which means all rights whatsoever were given to me by the defendant, which is clear from Clause 6 of the Agreement). It is wrong to suggest that my suit is not maintainable in Delhi. At this stage the witness is confronted with Clause 10 of the Agreement dated 25.05.1992 of film Wapas and witness admits that it is so mentioned in the agreement.
The stamp paper for the purpose of preparing the Agreement dated 07.07.1992 for film "Bandish" was arranged by defendant. It is wrong to suggest that the stamp paper for film "Bandish" was not arranged by defendant or the same was arranged by me. The Agreement for film "Bandish" was attested on 07.07.1992 at Delhi. I do not remember the exact place. It is wrong Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 40 of 49 to suggest that the Agreement for film "Bandish" was executed for territory of India. (Vol. I had taken negative rights for all film from the defendant, which means all rights whatsoever were given to me by the defendant, which is clear from Clause 6 of the Agreement). It is wrong to suggest that my suit is not maintainable in Delhi. At this stage the witness is confronted with Clause 10 of the Agreement dated 07.07.1992 of film "Bandish" and witness admits that it is so mentioned in the agreement.....
........The Agreement for film "Sawera" was attested from Notary Public in the year 1992. I do not remember the exact date and month. It is wrong to suggest that the Agreement for film "Sawera" was executed for territory of India. (Vol. I had taken negative rights for all film from the defendant, which means all rights whatsoever were given to me by the defendant, which is clear from Clause 6 of the Agreement). It is wrong to suggest that my suit is not maintainable in Delhi. At this stage the witness is confronted with Clause 10 of the Agreement dated 25.05.1992 of film "Sawera" and witness admits that it is so mentioned in the agreement. I am the proprietor of M/s. 21St Century Films. Other than agreement I have no other document to show that I am the proprietor of M/s. 21St Century Films. It is wrong to suggest that I never remained proprietor of M/s. 21St Century Films. It is correct that the agreement for film "Sawera" was prepared in three pages, but while doing the photocopy of filing the case, one page was inadvertently left. It is wrong to suggest I have deliberately not filed the complete agreement on record.
The Agreement for film "Dekha Pyar Tumhara" was prepared in the year 1992. It is wrong to suggest that the Agreement for film "Dekha Pyar Tumhara" was executed for territory of India. (Vol. I had taken negative rights for all film from the defendant, which means all rights whatsoever were given to me by the defendant, which is clear from Clause 6 of the Agreement). It is wrong to suggest that my suit is not maintainable in Delhi. At this stage the witness is confronted with Clause 10 of the Agreement dated 04.06.1992 of film "Dekha Pyar Tumhara" and witness admits that it is so mentioned in the agreement.
The Agreement for film "Ek Goan ki Kahani"
was attested on 29.08.1992. It is wrong to suggest that the Agreement for film "Ek Goan ki Kahani" was executed for territory of India. (Vol. I had taken negative Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 41 of 49 rights for all film from the defendant, which means all rights whatsoever were given to me by the defendant, which is clear from Clause 6 of the Agreement). It is wrong to suggest that my suit is not maintainable in Delhi. At this stage the witness is confronted with Clause 10 of the Agreement dated 29.08.1992 of film "Ek Goan ki Kahani" and witness admits that it is so mentioned in the agreement. It is correct that the agreement for film "Ek Goan ki Kahani" was prepared for four pages, however, I have filed only 1st page of the agreement on the record and three pages were left from being photocopies while filed the case due to my inadvertent mistake. It is wrong to suggest that I have intentionally not filed on the record the complete agreement.
The Agreement for film "Mere Lal" was attested on 29.08.1992. It is wrong to suggest that the Agreement for film "Mere Lal" was executed for territory of India. (Vol. I had taken negative rights for all film from the defendant, which means all rights whatsoever were given to me by the defendant, which is clear from Clause 6 of the Agreement). It is wrong to suggest that my suit is not maintainable in Delhi. At this stage the witness is confronted with Clause 10 of the Agreement dated 29.08.1992 of film "Ek Goan ki Kahani" and witness admits that it is so mentioned in the agreement. It is wrong to suggest that I had made at point 'X' on the document exhibit PW1/8.
The Agreement for film "Masoom" was attested in the year 1992. The stamp paper for the purpose of agreement was arranged by the defendant. It is wrong to suggest that the stamp paper was not arranged by the defendant or the same was arranged by me. It is wrong to suggest that the Agreement for film "Masoom" was executed for territory of India. (Vol. I had taken negative rights for all film from the defendant, which means all rights whatsoever were given to me by the defendant, which is clear from Clause 6 of the Agreement). It is wrong to suggest that my suit is not maintainable in Delhi. At this stage the witness is confronted with Clause 10 of the Agreement dated 02.07.1992 of film "Masoom" and witness admits that it is so mentioned in the agreement.
The Agreement for films "Daku or Bhagwan", "Parristan", "Jai Bhawani", "Kailash Patti", "Narad Leela", "Saranga", "Mata Maha Kali", "Jai Maha Kali", "Sati Ansuya" were prepared/ executed in the year Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 42 of 49 1992. The stamp paper for the purpose of agreement was arranged by the defendant. It is wrong to suggest that the stamp paper was not arranged by the defendant or the same was arranged by me. It is wrong to suggest that the Agreement for films "Daku or Bhagwan", "Parristan", "Jai Bhawani", "Kailash Patti", "Narad Leela", "Saranga", "Mata Maha Kali", "Jai Maha Kali", "Sati Ansuya" was executed for territory of India. (Vol. I had taken negative rights for all film from the defendant, which means all rights whatsoever were given to me by the defendant, which is clear from Clause 6 of the Agreement). It is wrong to suggest that my suit is not maintainable in Delhi. At this stage the witness is confronted with Clause 10 of the Agreement dated 09.07.1992 of films "Daku or Bhagwan", "Parristan", "Jai Bhawani", "Kailash Patti", "Narad Leela", "Saranga", "Mata Maha Kali", "Jai Maha Kali", "Sati Ansuya" and witness admits that it is so mentioned in the agreement. It is wrong to suggest that I have deliberately not filed on the record the complete agreement......".
(39) It is evident from the above that the plaintiff has admitted the Clause 10 of the agreements in question which provide for jurisdiction of Courts at Bombay only (except the agreement Ex.PW1/8). It is also evident from the cross examination of the plaintiff that he has no agreement for the film "Oonchi Haweli" executed by the plaintiff in his favour. (40) The case of the defendant throughout has been consistent regarding this Court having no Territorial Jurisdiction to try the present suit. Despite the same the witness of the defendant has not been crossexamined on this aspect. No question whatsoever has been put to the witness Chandru Dhanwani (DW1) regarding this Court having territorial jurisdiction to try the present suit despite the specific clause (Clause 10) in the agreements.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 43 of 49 (41) I may further note that the Declarations Ex.PW1/18 and Ex.PW1/19 on which the plaintiff places his reliance, have also been executed at Bombay as evident from the Stamps put on them.
(42) The Hon'ble Supreme Court in the case of Hakam Singh Vs. M/s. Gammon (India) Ltd. reported in (1971) 1 SCC 286 had an occasion to deal with the aspect of Territorial Jurisdiction and it was held that where two courts have territorial jurisdiction to try the dispute between the parties and the parties have agreed that dispute should be tried by only one of them, the Court mentioned in the agreement shall have the jurisdiction. The relevant portion of the observations of the Hon'ble Supreme Court is quoted as under:
"..... When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of adidem can be shown, the other Courts should avoid exercising jurisdiction. As regards constructions of the ouster clause when words like 'alone', 'only', 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius est exclusio alterius' expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.....".
(43) A Similar view has been taken by the Hon'ble Apex Court in the case of Shriram City Union Finance Corporation Limited Vs. Rama Mishra reported in I (2006) SLT 387 = Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 44 of 49 (2002) 9 SCC 613, relevant portion of which I quote as under:
".......9. It is open for a party for his convenience to fix the jurisdiction of any competent court to have their dispute adjudicated by that court alone. In other words, if one or more courts have the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent courts to decide their disputes. In case parties under their own agreement expressly agree that their dispute shall be tried by only one of them then the parties can only file the suit in that court alone to which they have so agreed. In the present case, as we have said, through clause 34 of the agreement, the parties have bound themselves that in any matter arising between them under the said contract, it is the courts in Calcutta alone which will have jurisdiction. Once parties bound themselves as such it is not open for them to choose a different jurisdiction as in the present case by filing the suit at Bhubaneshwar. Such a suit would be in violation of the said agreement......"
(44) Also, in the case of Hanil Era Textiles Ltd. Vs. Puromatic Filters (P) Ltd. reported in III (2004) SLT 118 = (2004) 4 SCC 671 the Hon'ble Supreme Court has reiterated the above legal position and observed as under:
".......Clause 17 says any legal proceedings arising out of the order shall be subject to the jurisdiction of the courts in Mumbai. This clause is no doubt not qualified by the words like "alone", "only" or "exclusively".
Therefore, what is to be seen is whether in the facts and circumstances of the present case, it can be inferred that the jurisdiction of all other courts except courts in Mumbai is excluded. Having regard to the fact that the order was placed by the defendant at Bombay, the said order was accepted by the branch office of the plaintiff at Bombay, the advance payment was made by the defendant at Bombay, and as per the plaintiff's case the final payment was to be made at Bombay, there was a clear intention to confine the jurisdiction of the courts in Bombay to the exclusion of all other courts. The Court of Additional District Judge, Delhi had, therefore, no territorial jurisdiction to try the suit....."
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 45 of 49 (45) Further, in the case of Swastik Gases Pvt. Ltd. Vs. Indian Oil Corporation Ltd. reported in VI (2013) SLT 529 the Hon'ble Supreme Court has specifically held that the very fact that the ouster clause is included in the agreement between the parties conveys their clear intention to exclude the jurisdiction of Courts other than those mentioned in the concerned clause. The relevant portion of the observations are reproduced as under:
"........ 26. It will be seen from the above decisions that except in A.B.C. Laminart where this Court declined to exclude the jurisdiction of the Courts in Salem, in all other similar cases an inference was drawn (explicitly or implicitly) that the parties intended the implementation of the exclusion clause as it reads notwithstanding the absence of the words "only", "alone" or "exclusively"
and the like. The reason for this is quite obvious. The parties would not have included the ouster clause in their agreement were it not to carry any meaning at all. The very fact that the ouster clause is included in the agreement between the parties conveys their clear intention to exclude the jurisdiction of Courts other than those mentioned in the concerned clause. Conversely, if the parties had intended that all Courts where the cause of action or a part thereof had arisen would continue to have jurisdiction over the dispute, the exclusion clause would not have found a place in the agreement between the parties......".
(46) Applying the above settled principles of law to the facts of the present case, I may observe that Clause 10 of the agreements Ex.PW1/1, Ex.PW1/3, Ex.PW1/4, Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7 specifically provide that "....In the event of any dispute arising out of this agreement it shall be settled by Bombay Court only...". Further, Clause 6 of the agreement Ex.PW1/11 provides that "....In case of any dispute Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 46 of 49 arising out of this agreement the same shall be referred to the Courts of Bombay only and the Bombay Courts alone shall have jurisdiction...". These clauses are, no doubt, not only qualified by the words like 'Only' and 'Alone' but a clear cut inference can be drawn that the jurisdiction of all other courts, except courts in Mumbai, is excluded. The intention to confine the jurisdiction of the Courts in to the exclusion of all other courts, is finally clinched by the manner in which Clause 6 in the agreement Ex.PW1/11 has been worded providing that the Bombay Courts alone shall have the jurisdiction. The manner in which the ouster clause has been inserted in the various, conveys the clear intention of the parties to exclude the jurisdiction of all other courts except those mentioned in the concerned clause i.e. Bombay Courts only.
(47) The ouster clause in the agreements in question is clear, unambiguous and specific and would bind the parties. Both the parties have bound themselves by way an agreement which confer the jurisdiction to Mumbai Courts only. Once the parties have bound themselves with the agreements, it is not open to them to choose the territorial jurisdiction of their own. The very existence of the jurisdiction clause in the agreements in question makes the intention of the parties quite clear. (48) In so far as the judgments in the case of Shree Rajmoti Industries Vs. Rajmoti Oil Mill Pvt. Ltd. & Ors. (Supra) and SAP Aktiengesellschaft & Ors. Vs. Varehouse Infotech (Supra) relied upon by the Ld. Counsel for the plaintiff are concerned, I may note that the same do not apply to the facts of the present Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 47 of 49 case since in both the cases there was no specific jurisdiction clause between the parties. No doubt, this Court would have the territorial jurisdiction to try the present case in view of the provisions of Section 62(2) of the Copyright Act, but for the fact that the parties have bound themselves with the agreements in question which provide for the jurisdiction of Mumbai Courts only.
(49) This being the background, I hereby hold that this Court has no territorial jurisdiction to entertain the present suit. (50) Both the issues are accordingly decided in favour of the defendant and against the plaintiff.
Issue No.1: Whether the plaintiff is entitled for the relief of permanent injunction as prayed? (OPP) Issue No.2: Whether the plaintiff is entitled for damages of Rs.10,00,000/ as prayed? (OPP) Issue No.5: Whether the plaintiff is entitled for the pendentelite and future interest, if so at what rate and for what period? (OPP) (51) All the above issues are clubbed together for the sake of convenience involving common discussions. Onus of proving all the above issues was upon the plaintiff. (52) In view of my findings on the issues no.1 and 2, since it has been already held that this Court has no territorial jurisdiction to try the present suit, therefore, I am not going into the merits of the case.
Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 48 of 49 (53) All the three issues are accordingly disposed off.
CONCLUSIONS & RELIEF:
(54) In view of my findings on the issues no.1 and 2, I hereby hold that this Court does not have the territorial jurisdiction to try the present suit. (55) The suit of the plaintiff is hereby Returned with liberty to the plaintiff to file the same before the competent court having territorial jurisdiction at Mumbai, Maharashtra within a period of Two Months from today under intimation to the defendant/ counsel.
(56) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 06.01.2024 District Judge (Commercial Court)02, Central, Tis Hazari Courts, Delhi Rishi Raj Vs. M/s. Orly S Film Production, CS (COMM) No. 1079/2020 Judgment dated 06.01.2024 Page No. 49 of 49