Delhi District Court
Diamond Comics Pvt. Ltd vs Sh. Pran Kumar Sharma on 11 February, 2014
IN THE COURT OF MS ANJU BAJAJ CHANDNA
ADDITIONAL DISTRICT JUDGE (CENTRAL)01
TIS HAZARI COURTS, DELHI
Civil Suit No.: 7/2014
Diamond Comics Pvt. Ltd.
.....Plaintiff
Versus
1. Sh. Pran Kumar Sharma
2. Diamond Magazines Pvt. Ltd.
...Defendants
ORDER
1. Vide this order, I shall decide an application u/o 39 Rule 1 & 2 CPC moved by the plaintiff seeking to restrain defendant no.2, its agents, employees etc. from publishing/printing/selling the comics of defendant no.1 till the final disposal of present suit.
2. The relevant facts for disposal of the present application are that plaintiff company has brought a suit for permanent injunction against both the defendants seeking to restrain them with respect to publishing/printing/selling the comics of defendant no.1. According to plaintiff, it is the largest and pioneer printing house in the field of Indian comics since 1968. The plaintiff started publication of comics made by " Pran" (defendant no.1) since 1981. The artistic work of comic features and different comics in Hindi, English and other languages were purchased from "Pran" (defendant no.1) with exclusive copyright for publishing and printing since 1981. The plaintiff has referred to the letter of defendant no.1 dt. 5.1.1996 confirming grant of exclusive rights in favour of the plaintiff with respect to the printing and publishing of the comics characters. It is further asserted on behalf of plaintiff company that vide letter dt. 12.12.1999, the defendant no.1 has confirmed the assignment of copyright to print and publish the comics since 1981 in favour of plaintiff. The MoU entered between plaintiff and defendant no.1 in the year 2001 is further reproduced to reiterate that plaintiff is exclusively authorised to publish the comics of all cartoon characters created by defendant no.1. It is asserted that plaintiff has purchased over 1000 comics and paid Rs. 1.25 lakhs very month for the last 33 years total amounting to Rs. 4.95 crores and further the plaintiff has spent Rs. 1.0 lakh per month on publicity from 1981 onwards to establish the goodwill of his characters in the diamond comics. It is further asserted that plaintiff arranged to pay Rs. 1.0 crore for the electronics rights to the defendant no.1 and he has also recently paid Rs. 6.0 lakhs for the mobile and mercantile rights. It is the contention of the plaintiff that plaintiff company is the exclusive copyright owner of comic characters of defendant no.1 for the print media since 1981.
3. It has recently come to the knowledge of plaintiff that defendant no.1 has given three comics to the defendant no.2 for publishing and they are going to be released in the market in January, 2014. The plaintiff has written a letter dt. 10.12.2013 informing the defendant no. 1 to desist from authorising anyone else from publishing the cartoon comics in violation of their exclusive rights but defendant no.1 has sent false and frivolous communication dt. 07.12.2013.
4. Defendant no.1 came forward to contest the suit as well as application by filing the written statement and reply to application u/o 39 Rule 1 & 2 CPC. The case of the plaintiff is denied and objections with respect to maintainability of the suit and bar of grant of injunction u/s 41(e) of Specific Relief Act are being pleaded. The objections with respect to jurisdiction of this court in view of Sec. 19(A)(2) and Order 7 Rule 11 CPC have also been taken.
5. According to defendant no.1, the undertaking dt. 5.1.1996 and MoU dt. 5.8.2001 do not amount to assignment under the copyright law. It is asserted that defendant no.1 has never assigned any of the characters such as CHACHA CHAUDHARY, BILLOO, PINKI, SHRIMATI JI, RAMAN, CHANNI CHACHI, ANKUR, PALTU, PIKLU, MIKU or any other character created by defendant no.1 as claimed by the plaintiff. It is also pleaded that MoU dt. 5.8.2001 has come to an end with the efflux of time as the term of assignment could be for five years as per Sec. 19(5) of the Copyright Act, 1957, particularly, when no document with respect to renewal is shown. It is contended that there are no basic principles for grant of temporary injunction in favour of the plaintiff and further plaintiff has concealed various material facts from the court. Defendant no.1 has copyright registration of characters CHACHA CHAUDHARY, BILLOO, PINKI, SHRIMATI JI, RAMAN, CHANNI CHACHI, ANKUR, PIKLU, MIKU, SABU, RAKA and is also registered proprietor of trademark CHACHA CHAUDHARY and comics of the characters written by defendant no.1 were given to the plaintiff on piece to piece basis in the form of comic book describing pages along with paper cover book in Hindi and English language and sometimes in Bengali language and plaintiff was paying according to piece work. Pertinently, other publishers are also publishing episodes of the characters in other magazines, newspapers etc. Copies of the relevant bills are filed on record. The agreement with other companies such as Media Guru Consultant Pvt. Ltd. and Sahara India Mass Communication along with payment details have been submitted by defendant no.1 wherein plaintiff even signed as a witness and well aware that defendant no.1 has exclusive copyright owner. It is further asserted that cheques given by plaintiff to defendant no.1 have been frequently bouncing. The defendant no.1 has also alleged infringement of copyright by the plaintiff by republishing the previous comics in the form of digest for which plaintiff has never paid anything to defendant no.1.
6. It is specifically contended that defendant no.1 is famous cartoonist and is a creator of famous character Chacha Chaudhary and began his career in 1960. Defendant no.1 has also created other cartoon characters which have been regularly publishing in Indian magazines. The name of defendant no.1 was included in Limca Book of Records for popularising comics in India.
7. On merits, all the averments of the plaintiff are denied, particularly, that defendant no.1 has ever sold its copyright to plaintiff or to any of its representatives. It is prayed that suit as well as application for injunction be dismissed.
8. Defendant no.2 has sought time to file written statement as well as reply to the injunction application.
9. I have heard Sh. R.S. Malik, ld. counsel for plaintiff and Ms. Anju Aggarwal on behalf of defendant no.1 and given due consideration to the facts and pleadings and the record of the case.
10. Ld. counsel for the plaintiff has asserted about the copyrights assigned by defendant no.1 with respect to printing and publishing the comics work created by defendant no.1. Ld. counsel has referred to the published notice issued by defendant no.1 thereby authorising defendant no.2 to publish and sell comics characters like CHACHA CHAUDHARY, BILLOO, SHRIMATI JI, RAMAN, CHANNI CHACHI, SONI SAMPAT. Ld. counsel has further referred to letter dt. 07.12.2013 of defendant no.1 to show that defendant no.1 has been assigning publishing rights with respect to comics to others. Ld. counsel has stressed upon MoU dt. 5.8.200l and letters dt. 05.1.1996 and 12.12.1999 issued by defendant no.1 confirming assignment of copyright in favour of the plaintiff.
11. On the other hand, counsel for defendant no.1 has submitted that this court has no jurisdiction to entertain the present suit as the dispute comes under the jurisdiction of Copyright Board. It is argued that suit is barred u/s 41(e) of Specific Relief Act and further Sec. 19(5) of Copyright Act, 1957 has also been referred to assert that duration of the MoU of August, 2001 cannot be beyond five years.
12. On examining the nature of facts and circumstances of the case, documents placed on record and the rival contentions, I am of the opinion that prima facie case, balance of convenience and irreparable loss lie in favour of the plaintiff and hence plaintiff is entitled to the grant of injunction against the defendants. The undertaking dt. 5.1.1996 and letter dt. 12.12.1999 and MoU dt. 5.8.2001 clearly demonstrate that the defendant no.1 has assigned exclusive rights to print and publish comics of all characters created by him in favour of plaintiff since 1981. Although, no duration is mentioned with respect to the assignment of copyright but the period prescribed u/s 19(5) of Copyright Act, 1957 would not be applicable to the present case in view of subsection (7), which says that provisions shall not be applicable to assignment made before the enforcement of Copyright (Amendment) Act, 1994. In the present case, assessment of copyright has been since 1981 and there is no specific denial to the different payments/consideration made by plaintiff as detailed in para 8 of the plaint. There is no provision in Copyright Act thereby expressly barring the jurisdiction of civil court and, particularly, Sec. 55 provides for civil remedies including grant of injunction for infringement of copyright.
13. On perusal of documents produced on record, it is clear that copyright has been assigned by defendant no.1 specifically in favour of plaintiff and in accordance with Sec. 54 of the Copyright Act, owner of copyrights includes exclusive licensee. It is further clear from the conduct of defendant no.1 and evident from the documents and communication filed on record that there are clear intentions of the defendant to infringe copyright granted in favour of plaintiff. There is nothing on record to suggest that exclusive copyright existing in favour of plaintiff has been relinquished or cancelled by defendant no.1 by giving any formal notice. Also there is nothing on record to establish that defendant no.2 in any manner legally authorised to publish the cartoon characters created by defendant no.1.
14. Since, the plaintiff is exclusive licensee of the artistic work created by defendant no.1 and copyright assigned in favour of plaintiff by defendant no.1 since 1981, the plaintiff would suffer irreparable loss if injunction is not granted. Accordingly, I allow the application of the plaintiff and restrain both the defendants from publishing/printing/selling the comics of defendant no.1 till the final disposal of the present suit.
15. Nothing stated herein, would amount to any expression on the merits of the case.
Announced in the Open Court (ANJU BAJAJ CHANDNA) On this 11rd day of February, 2014 ADJ (Central)01, Delhi