Delhi District Court
Rajkamal Prakashan Pvt Ltd And Ors vs Odisha State Bureau Of Text Book ... on 3 September, 2024
IN THE COURT OF SH. RAJESH KUMAR GOEL
District Judge (Commercial Court) -02,
Central, Tis Hazari
DLCT010116242019
CS (COMM.) No. 1626/2019
CNR No. DLCT010116242019
1. M/s Rajkamal Prakashan Pvt. Ltd
Through Sh. Ashok Maheshwari,
1-B, Netaji Subhash Marg,
Darya Ganj, New Delhi 110002
2. M/s Radha Krishna Prakashan Pvt. Ltd.
Through Sh. Ashok Maheshwari
1-B, Netaji Subhash Marg,
Daryaganj, New Delhi 110002
3. Sh. Ashok Maheshwani
Proprietor, Lokbharti Prakashan
1-B, Netaji Subhash Marg,
Daryaganj, New Delhi 110002 ......Plaintiffs
Versus
1. Odisha State Bureau of Text Book
Preparation and Production
Department of Higher Education,
Government of Orissa, Pustak Bhawan
A-11, Sukavihar (Acharya Vihar) Near Bridge,
Bhubbaneshwar, Orisssa 751022
2. Shri. Arvind
s/o Late Sh. Amarkant
F-6, Panchpush Apartments,
New Ada, Ashok Nagar
Allahabad, Uttar Pradesh-211001
M/s Rajkamal Prakashan Pvt. Ltd & Ors
Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 1 of 26 )
3. Shri Prakash Chandra Dubey
Legal Heir s/o late Sh. Harishankar Parsai
Block No. 273, F.C.I Lane,
Trimurti Nagar, Damoh Naka,
Jabalpur,
Madhya Pradesh
4. Sh. Anand s/o Sh. Yashpal
Viplav Karyalay, 665-B Mahanagar
Lucknow, Uttar Pradesh 226006
5. Sh. Kedarnath Singh
S/o Late Sh. Ramdhari Singh Dinkar
Udayachal, Rashtrakavi Dinkar Path
Rajendra Nagar,
Patna-800016 (Bihar)
(Defendant no.2 to 5 are stated to be proforma defendants)
6. Ms. Mannu Bhandari
c/o Smt. Rachna Yadav
T 23/10, DLF City, Phase III,
Gurgaon 122002 ......Defendants
( deleted from the array of
defendants on 26.04.2023)
Date of filing of suit : 29.08.2019
Date of Argument : 03.09.2024
Date of Judgment : 03.09.2024
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit filed on behalf of the plaintiffs for declaration, permanent injunction, rendition of accounts and also for delivery up of infringed books alongwith the damages against the defendants.
M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 2 of 26 ) BRIEF FACTS:
2. The brief facts of the case as made out from the plaint are that plaintiff No.1,2 and 3 are sister concerns, collectively forming part of the reowned Rajkamal Prakashan Group; plaintiffs are engaged in the business of publishing for more than 50 years and are ranked amongst one of the leading publishing houses of the country, bringing out literary and other books; plaintiffs emphasis on editorial and production values has helped the plaintiffs to develop and deliver knowledge products; plaintiffs have tie-ups with world's leading international publishers to make their books available in the Indian sub-continent at affordable prices.
3. It is the case of the plaintiffs that plaintiffs are renowned publishers and during the legal term of the unrestricted copyright, hold the sole and exclusive right to produce, print, publish and sell the following works in the market -
The work of plaintiff no.1 i. Pratinidhi Kahaniya by Amarkant, containing the subject work Dopahar ka Bhojan at page no 98104 (ISBN 9788126702473), assigned Sh.Amarkant vide Memorandum of Agreement dated M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 3 of 26 ) 22.02.1989 (hereinafter referred to as `MOA-1' ).
ii. Nithalle ki Diary by Harishankar Parsai, containing the subject work Bheden or Bhediye at page no. 121126 (ISBN 9788126713042), assigned by Defendant No. 3 vide Memorandum of Agreement dated 30.04.2000 (herein after referred to as `MOA-2').
The work of plaintiff no.2 i. Abhishapt by Yashpal', containing the subject work 'Admi ka Bachha' at page no. 79- 84(ISBN9788180314650), assigned by Defendant No. 4 vide Memorandum of Agreement dated 03.09.2005 (hereinafter referred to as 'MOA-3') ii. Rashmirathi by Ramdhari Singh Dinkar (ISBN9788180313639), assigned by Defendant No. 5 vide Memorandum of Agreement dated 05.09.2005 (hereinafter referred to as ' MOA-4') The work of plaintiff no.3 i. Ek Plate Sailab by Mannu Bhandari', containing the subject work 'Nai Naukri' at page no.921 (ISBN 9788171197125), assigned by Defendant No. 6 vide Memorandum of Agreement dated 08.06.1989 (herein after referred to as known as 'MOA- 5')."
4. It is the further case of the plaintiffs that since the date of the inception of respective agreements MOA-1 to MOA-5, the plaintiffs are consistently paying the royalties to the respective M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 4 of 26 ) owners/assignors of the works from time to time; plaintiffs have not re-assigned any copyright or license to any other person, wholly or partly, in respect of MOA-01 to MOA-05; plaintiffs have invested huge amounts of labor, skill and capital in getting the exclusive copyrights in the original literary works.
5. It is also the case of the plaintiffs that defendant no.1 is an autonomous body incorporated by the Odisha State Government in the year 1970; defendant no.2 and 6 are necessary and proforma party; defendant no.2 , after death of his father Late Sh. Amarkant is the first owner of original literary work 'Pratinidhi Kahaniya by Amarkant' which contains the subject work 'Dophar Ka Bhojan' at page no.98-104;
defendant no.3, after death of his father Late Sh. Harishankar Parsai, is the first owner of original literary work 'Nithalle Ki Diary by Harishankar Prasai which contains the subject work 'Bheden or Bhediya' at page no. 121-126; defendant no.4, after death of his father Late Sh. Yashpal, is the first owner of the original literary work contained in the book titled 'Abhishapt by Yashpal' which contains the subject work 'Admi Ka Bachha' at page no.79-84; defendant M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 5 of 26 ) no.5, after death of his father Late Sh.Ramdhari Singh Dinkar, is the first owner of the original literary work contained in the book titled 'Rashmirathi by Ramdhari Singh Dinkar'; defendant no.6, is the first owner of the original literary work contained in the book titled 'Ek Plate Sailab by Mannu Bhandari' which contains the subject work 'Nai Naukri' at page no.9-21.
6. It is averred that defendant no.1 has been publishing the assigned works of the plaintiffs which is substantial reproduction of the original literary works published by them. According to the plaintiff's, plaintiffs are having the copy right over the following publications also which are being or has been infringed by the defendant no.1 :
SUBJECT AUTHOR INFRINGI ORIGINAL BOOK WORK NG BOOK SAHITYA SADHNA "Dopahar ka Sh. Amarkant Page no. Page no. 98-104 in Bhojan" 177-192 PRATINIDHI KAHANIYA "Bheden or Sh. Page no. Page no. 121-126 in Bhediye" Harishankar 137-147 NITHALLE KI Parsai DIARY "Admi ka Sh. Yashpal Page no. Page no. 79-84 in Bachha" 169-176 ABHISHAPT M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 6 of 26 ) 'Rashmirathi' Sh. Ramdhari Page no.15- RASHMIRATHI Singh Dinkar 69 "Nai Naukri" Smt. Mannu Page Page no. 9-21 in EK Bhandari no.193-206 PLATE SAILAB 'RASHMIRATHI by Ramdhari Singh Dinkar' INFRINGING BOOK ORIGINAL BOOK Page 15 (para 1-5) Page 62 & 63 Page 16 (para 1-5) Page 63 & 64 Page 17 (para 1-5) Page 65 Page 18 (para 1-6) Page 65 & 66 Page 19 (para 1-5) Page 66 & 67 Page 20 (para 1-5) Page 67 & 68 Page 21 (para 1-5) Page 68 & 69 Page 22 (para 1-6) Page 69 & 70 Page 23 (para 1-5) Page 70 & 71 Page 24 (para 1-6) Page 71 & 72 Page 25 (para 1-5) Page 72 & 73 Page 26 (para 1-6) Page 73 & 74 Page 27 (para 1-5) Page 74 Page 28 (para 1-6) Page 75 Page 29 (para 1-5) Page 76 Page 30 (para 1-6) Page 76 & 77 Page 31 (para 1-5) Page 77 & 78 Page 32 (para 1-4) Page 78 & 79 Page 33 (para 1-4) Page 113 Page 34 (para 1-6) Page 114 & 115 Page 35 (para 1-5) Page 115 & 116 Page 36 (para 1-5) Page 116 & 117 Page 37 (para 1-5) Page 117 & 118 Page 38 (para 1-5) Page 118 & 119 M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 7 of 26 ) Page 39 (para 1-5) Page 120-121 Page 40 (para 1-5) Page 121, 122 & 123 Page 41 (para 1-5) Page 123 & 124 Page 42 (para 1-5) Page 124, 127 & 129 Page 43 (para 1-5) Page 129, 130 & 131 Page 44 (para 1-5) Page 131 & 132 Page 45 (para 1-6) Page 132, 133 & 134 Page 46 (para 1-5) Page 134 & 135 Page 47 (para 1-4) Page 144, 145 & 146 Page 48 (para 1-6) Page 146 & 147 Page 49 (para 1-5) Page 148 & 149 Page 50 (para 1-5) Page 149 & 150 Page 51 (para 1-6) Page 151 & 152 Page 52 (para 1-6) Page 152, 153 & 154 Page 53 (para 1-5) Page 156 & 157 Page 54 (para 1-5) Page 158 & 159 Page 55 (para 1-6) Page 159, 160 & 161 Page 56 (para 1-6) Page 161 & 162 Page 57 (para 1-6) Page 163 Page 58 (para 1-5) Page 164 Page 59 (para 1-5) Page 165 Page 50 (para 1-5) Page 166 Page 61 (para 1-5) Page 167 Page 62 (para 1-5) Page 168 & 169 Page 63 (para 1-5) Page 169 & 170 Page 64 (para 1-5) Page 170 & 171 Page 65 (para 1-5) Page 171 & 172 Page 66 (para 1-5) Page 172, 173 & 174 Page 67 (para 1-5) Page 174 & 175 Page 68 (para 1-5) Page 175 & 176 Page 69 (para 1-2) Page 176 M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 8 of 26 )
7. It is further averred that the defendant's publication contains the copyright assigned work of plaintiff no.3 namely "Nai Naukri by Mannu Bhandari" at page no.193-206; defendant no.1 has copied the copyrighted work of the plaintiff's without any permission, right, title or license either from plaintiffs or from the original author/legal heirs; defendant no.1 has published the first edition of the infringing book having ISBN No. 9788180054129 in the year 2017 (2000 copies) and has been publishing the same ever since then in clandestine manner and selling the same causing irreparable loss and injury to the plaintiffs and the authors/legal heirs of the original literary works.
8. It is further stated that on the second page of the infringing books, defendant no.1 is falsely disclaiming that " copyright reserved by Odisha State Bureau of Text-book preparation and production, Bhubaneshwar, no part of this publication may be reproduced in any form without the prior written permission of the publisher.'.
9. It is stated that the while conducting an offline and online market inspection, on 09.8.2019, it came to the notice of the plaintiffs that defendant no.1 is M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 9 of 26 ) pubishing and selling the infringing book in both physical and digital market including on their official website (http://www.textbookbureauodisha.in/pustak/books_details.p hp?BookId=116) in a secretive and clandestine manner to avoid detection; the infringed publication upon comparison with the original literary works, it was found by the infringed publication is substantial reproduction of the copyrighted works of the plaintiff's; the infringing book bears the first publication year as 2017 which is clear violation of the provisions of the Copyrights Act, 1957, as at that time, copyrights of the original literary works were with the plaintiff's; due to the such infringement on the part of defendant no.1, plaintiff's have been suffering monetary losses as well as loss of goodwill; defendant no.1 is selling the infringed publication with a view to cause wrongful loss to plaintiffs and thereby causing wrongful gains to itself.
10. It is further averred that plaintiff's have strong apprehension that defendant no.1 is planning to re- print the infringing book containing the original literary works published by the plaintiffs. Hence the M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 10 of 26 ) plaintiff's have filed the present suit against the defendants.
11. Records would indicate that vide order dated 03.09.2019, Ld Predecessor of this Court, allowed the application moved on behalf of the plaintiff's under order XXXIX Rule 1 and 2 CPC seeking ad- interim injunction, whereby defendant no.1, its agents, servants or any person acting on its behalf, including whole-sellers and retailers were restrained from reproducing, publishing and printing by any means, the infringed publication of the books, as mentioned in the plaint and of the copyright of the literary work claimed by the plaintiff with the infringement of the literary work, till next date of hearing. Defendant no.1 was further restrained from further assigning any rights in favour of any other person in the aforesaid infringed material.
12. Summons of the suit were also directed to be issued to the defendants vide order dated 03.09.2019.
13. The record would indicate that on 28.11.2019, Ld. Counsel for the defendant no.2 to 6 was present and has filed memo appearance. On M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 11 of 26 ) that itself, defendant no.1 put its appearance through Ld. Counsels.
14. On 09.3.2022, written statement alongwith an application for condonation of delay in filing the written statement was moved on behalf of the defendant no.1. On that day itself, another application under order VIII Rule 1 CPC was moved on behalf of the plaintiffs seeking closure of the right of defendant no.1 to file written statement.
15. Record would indicate that on 06.05.2022, the application moved on behalf of the defendant no.1 seeking condonation of delay was allowed by the Ld. Predecessor of this court and the written statement filed by the defendant no.1 was taken on record subject to cost.
16. In the written Statement, it is stated that defendant no.1 is a government organization and the publication of the books by defendant no.1 is provided under section 179 (d), (dd) of the Copyright Act,1957 which states that government shall in the absence of any agreement to the contrary be the first owner of the copyright; there is M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 12 of 26 ) no cause of action to file the present suit against the defendant no.1; no cause of action arose within the jurisdiction of this court. It is denied that defendant no.1 has copied any copyright work of the plaintiffs in any of their books besides when the defendant no.1 is publishing any book for the students; copies of the book were never sold by the defendant no.1 but rather a initiative was taken under Sikhshya Abhiyaan by the government to provide the books to the students at affordable prices; defendant no.1 has filed an objection to misc petition under order 39 rule 1 and 2; the suit is bad in law and liable to be dismissed.
17. Record would indicate that vide order dated 28.08.2023, the application under order XXXIX rule 1 and 2 CPC moved on behalf of the plaintiff's was disposed off by the Ld. Predecessor of this court, whereby the interim order dated 03.09.2019 was confirmed till disposal of the suit/further orders and the case was adjourned for First Case Management Hearing.
18. On 20.09.2023, following issues were framed by the Ld. Predecessor of of this Court:
M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 13 of 26 )
1. Whether there is no cause of action to file the suit against the defendant no. 1 ? (Para 2 of Written Statement of Defendant no.1) (OPD-1)
2. Whether this court has no territorial jurisdiction to entertain present suit ? (Para 3 of Written Statement of Defendant no.1) (OPD-1)
3. Whether the suit is not maintainable for non-joinder of proper parties ? (Para 4 of Written Statement of Defendant no.1) (OPD-1)
4. Whether the plaintiff is entitled to the Decree of Declaration, as prayed in the plaint ? [Ref.: Prayer
(a) of the Plaint) ? (OPP)
5. Whether the plaintiff is entitled to the Decree of Permanent Injunction, as prayed in the plaint ?
[Ref.: Prayer (b) of the Plaint) ? (OPP)
6. Whether the plaintiff is entitled to the Decree of Rendition of Accounts/ Profits from Sale of Infringed Book, as prayed in the plaint ? [Ref.:
Prayer (c) of the Plaint) ? (OPP)
7. Whether the plaintiff is entitled to the decree of Delivery-up of Infringing Book and Damages, as prayed for in the plaint ? [Ref.: Prayer (d) & (e) of the Plaint) ? (OPP)
8. Relief.
19. Thereafter, the case was adjourned for Second Case Management hearing. On 23.9.2023, the schedule for Second Case Management Hearing was fixed and the Ld. Court Commissioner was appointed by the Ld. Predecessor of this court to record the evidence of the parties.
M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 14 of 26 )
20. Ld. Court Commissioner submitted his report dated 1.12.2023. As per the report of the Ld. Court Commissioner, plaintiff has examined one Sh. Ashok Kumar Maheshwari, AR of the plaintiff as PW1 and despite the opportunity being given to the defendant no.1 on 31.10.2023 and 01.11.2023, PW1 was not cross examined. It is also stated that no evidence has been led by the defendant no.1.
21. PW1 Ashok Kumar Maheshwari has deposed on the lines of the averments made in the plaint in his evidence by way of affidavit Ex.PW1/A. He also relied upon / proved the following documents:-
S.no Document/Particulars Exhibit(s)
1. Board Resolution of plaintiff ExPW1/1 company (Rajkamal Prakashan Pvt. Ltd) dated 19.08.2019
2. Memorandum of Association ExPW1/2 and Article of Association of (colly) Rajkamal Prakshan Pvt. Ltd
3. Board Resolution of plaintiff ExPW1/3 company (Radhakishan Prakshan Pvt Ltd) dated 19.8.2019
4. Memorandum of Association Mark A and Article of Association of Radhkishan Prakshan Pvt. Ltd
5. Agreement dated 22.02.1989 ExPW1/5 with the author Sh. Amarkant
6. Agreement dated 30.4.2000 Mark B with the author Sh. Harishankar M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 15 of 26 ) Prasai
7. Agreement dated 03.09.2005 ExPW1/7 with the legal heirs of the (colly) Author Sh. Yashpal
8. Agreement dated 5.9.2005 with Mark C. the legal heirs of the Author Sh. Ramdhari Singh Dinkar
9. Agreement dated 08.06.1989 ExPW1/9 with the Author Smt Manu Bhandari
10. Original copy of the infringing Annexure N1 book "Sahitya Sadha"
11. The books published by plaintiff company which have been infringed by defendant no.1 Pratinidhi Kahaniya written by Annexure N2 Amarkant Nithale Ki Diary written by Sh.Annexure N3 Harishankar Parsai Abhishapt written by Sh.Annexure N4 Yashpal Rashmirathi written by Sh.Annexure N5 Ramdhari Singh Dinkar Ek Plate Sailab written by Smt. Annexure N6 Manu Bhandari
22. Record would indicate that written synopsis of arguments on behalf of the parties have already filed. Ld. Counsel for the plaintiff has argued the matter orally as well. Nobody on behalf of the defendant no.1 appeared for addressing the oral final arguments.
M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 16 of 26 )
23. Ld. Counsel for the plaintiffs submitted that despite the service and after filing the written statement defendant no.1 stopped appearing before this Court. He further submitted that PW1 Ashok Kumar Maheshwari has not been cross examined on behalf of the defendant no.1 despite the opportunities being given to them by the Ld. Court Commissioner and the case of the plaintiffs has gone unchallenged. Ld. Counsel for the plaintiffs has further argued in consonance with the averments made in the plaint.
24. I have gone through the material available on record including the written synopsis of arguments filed by the parties. I have also heard the Ld. Counsel for the plaintiffs .
25. At the outset, I may mention that vide order dated 26.04.2023, the name of the defendant no.6 has already been deleted from the array of the defendants by the Ld. Predecessor of Court. It has also already come on record that defendants no.2 to 5 are just proforma defendants and no relief has been claimed against them (order dated 23.09.2023).
M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 17 of 26 )
26. Here it is pertinent to mention that, today i.e 04.09.2024, submissions were made by the Ld. Counsel for the plaintiffs that plaintiff's are confining their prayers to the relief of Permanent Injunction (Prayer b) and damages only and are not pressing rest of the prayers made and same may be treated as given up. Statement of Ld. Counsel for the plaintiffs, in this regard, has been recorded separately.
27. Since, the plaintiffs have confined their prayers to the relief of Permanent Injunction (prayer
b) and damages only and have given up the rest of the prayers, therefore, Issues No.4 regarding Decree of Declaration, Issue No. 6 qua Decree of rendition of accounts/profits and Issue No. 7 in respect of Decree of delivery up only, have become infructuous and need not to be adjudicated upon. That being so, now only Issue no.1, issue no.2 , Issue no. 3, Issue no. 5, Issue no.7 qua damages only and Issue no.8 remains.
Issue No.1 Whether there is no cause of action to file the suit against the defendant no. 1 ? (Para 2 of Written Statement of Defendant no.1) (OPD-1) M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 18 of 26 )
28. The burden to prove this issue was upon the defendant no.1 who has not led any evidence. Not only that he has not even cross examined the PW1 Ashok Kumar Maheshwari despite the opportunities being granted, as nobody on behalf of the defendant no.1 turned up for cross examination of PW1 before the Ld. Local Commissioner. On the contrary, the plaintiffs have been able to establish that there is valid cause of action against the defendant no.1. PW1 Ashok Kumar Maheshwari has deposed that the plaintiff's holds the sole and exclusive right to produce, print, publish and sell the works in the market, some of which are being infringed by defendant no.1. PW1 has proved the Memorandum of Agreements as ExPW1/5, ExPW1/7 and ExPW1/9 executed between the plaintiff's and some of the defendants. If averments made in the plaint and the deposition of PW1 is taken into consideration, it become crystal clear that there was a valid cause of action to file the present suit against the defendant no.1. Accordingly, issue no.1 is decided in favor of the plaintiff's and against the defendant no.1.
M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 19 of 26 ) Issue No.2 Whether this court has no territorial jurisdiction to entertain present suit ? (Para 3 of Written Statement of Defendant no.1) (OPD-1)
29. The burden to prove this issue was also on defendant no.1. As noted herein above, no evidence has been led by defendant no.1 to prove that this court has no territorial jurisdiction. As per the averments made in the plaint, plaintiffs are stated to be sister concerns, collectively forming part of the renowned Rajkamal Prakashan Group having its registered office at 1-B, Netaji Subhash Marg, Daryaganj, New Delhi 110002 which falls within the jurisdiction of this court. Therefore, this court has territorial jurisdiction to adjudicate the dispute. Issue no.2 is answered accordingly.
Issue No.3 Whether the suit is not maintainable for non- joinder of proper parties ? (Para 4 of Written Statement of Defendant no.1) (OPD-1)
30. Defendant no.1 was supposed to adduce the evidence to prove that there is no-joinder of necessary parties as the burden to prove this issue was also upon the defendant no.1. It is not clear as to on what basis, the aforesaid objection was taken M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 20 of 26 ) by the defendant no.1 in the written statement. Defendant no.1 has failed to prove the onus as placed upon it. This issue is also decided against the defendant no.1 and in favour of the plaintiffs.
Issue no. 5 Whether the plaintiff is entitled to the Decree of Permanent Injunction, as prayed in the plaint ? [Ref.:
Prayer (b) of the Plaint) ? (OPP)
31. The case of the plaintiff's is basically based upon the Memorandum of Agreements MOA-1 to MOA-5, vide which the sole and exclusive rights to produce, print, publish and sell the works as mentioned in the aforesaid MOA's rested with the plaintiffs. PW1 Ashok Kumar Maheswari has proved the Memorandum of Agreements as ExPW1/5, ExPW1/7, ExPW1/9 and also the infringed books as annexures N1- N6 .
32. The testimony of PW1 has gone unrebutted and unchallenged. As noted herein above, PW1 was not cross examined by the defendant no.1 despite the opportunities being given to them. The plaintiffs have been able to establish that they are having the sole and exclusive rights to print and publish the M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 21 of 26 ) books in question which was being infringed by the defendant no.1. There is no as such contest to the case of the plaintiffs brought on record by way of affidavit also. There is nothing on record to disbelieve the averments made in the plaint and to reject the testimony of PW1 Ashok Kumar Maheswari. Accordingly, issue no. 5 is decided in favour of the plaintiffs and against the defendant no.1.
Issue No. 7Whether the plaintiff is entitled to the decree of Delivery-up of Infringing Book and Damages, as prayed for in the plaint ? [Ref.: Prayer (d) & (e) of the Plaint) ? (OPP)
33. As noted in the preceding para's, the plaintiff's have given up the prayer of delivery up and this issue qua that extent has become infructuous. As regards the damages, the plaintiffs have claimed the damages in the sum of Rs 25,00,000/- as averred in the plaint but the same have not been quantified in the prayer clause. At the outset, I may mention that no evidence has been lead by the plaintiff's to prove or to indicate as to on what basis the plaintiffs have claimed the aforesaid damages.
M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 22 of 26 )
34. On the issue of damages, the settled legal position has been laid down in Hindustan Unilever Limited v. Reckitt Benckiser India Ltd., (2014) 57 PTC 495 (DB), by the Hon'ble Division Bench. In the said decision, the Hon'ble Division Bench has clearly held that unless there are extenuating circumstances and overwhelming evidence of wrong doing, punitive damages cannot be awarded. Usually, the Court grants either notional damages or the compensatory damages.
35. Further, in the case of Koninlijke Philips v.
Amazestore, 2019 DHC 2185, the Hon'ble High Court laid down certain standards for grant of damages in the following terms:
"39. Accordingly, the question which was left open in Rookes (supra) was closed in Cassell (supra) as regards the manner in which aggravated or punitive damages are to be awarded.
40. Consequently, though in assessing the aggravated damages which the Defendants should pay, the total figure awarded should be in substitution for and not in addition to the smaller figure, yet the rounded total sum shall have to be calculated by adding an additional amount to the compensatory damages.
41. Keeping in view the aforesaid, this Court is of the view that the rule of thumb that should be followed while granting damages can be summarised in a chart as under:--
M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 23 of 26 ) Sl. Degree of mala fide Conduct Proportionate No award
(i) First-time innocent infringer Injunction
(ii) First-time knowing infringer Injunction + Partial Costs
(iii) Repeated knowing infringer Injunction + Costs which causes minor impact + Partial damages to the Plaintiff
(iv) Repeated knowing infringer Injunction + Costs which causes major impact + Aggravated to the Plaintiff damages
(v) Infringement which was (Compensatory + deliberate and calculated additional (Gangster/scam/mafia) + damages) wilful contempt of court.
42. It is clarified that the above chart is illustrative and is not to be read as a statutory provision. The Courts are free to deviate from the same for good reason."
36. Adverting to the case in hand, it is not the case of the plaintiffs that the defendant no.1 is a repeated knowing infringer of the copyrights of the plaintiffs . It is an admitted fact that defendant no.1 is stated to be a government organization. The plaintiffs were under obligation at least to bring something on record that due to the activity of the defendant no.1, plaintiffs have suffered some loss. According to the defendant no.1, the copies of the books were never sold by the defendant no.1 but rather a initiative was taken under Sikhshya M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 24 of 26 ) Abhiyaan by the government to provide the books to the students at affordable prices.
37. Having noted the same and in the totality of the facts and circumstances of the present case, I do not deem it appropriate to award any damages to the plaintiffs. Hence, the prayer of the plaintiffs qua the damages is hereby declined. Issue no.7 qua damages is answered accordingly.
Issue no.8 Relief
38. In view of my aforesaid discussions and findings on the issues, the present suit is decreed in favour of the plaintiffs and against the defendant no.1 and following reliefs are granted:-
(i.) Defendant no.1 its agents, authorised representatives, distributors, wholesalers, retailers, or any other person acting on its behalf, are restrained from reproducing, publishing and printing, distributing or selling the original litrary works namely Dopahar Ka bhojan by Amarkant, Bhenden aur Bhadiye by Harishankar Parsai, Admi Ka Bachha by Yashpal, Rashmirathi by Ramdhari Singh Dinkar and Nai Naukari by Mannu Bhandari, in any manner of form whatsover.
(ii) Cost of the suit is also awarded in favour of the plaintiffs .
M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 25 of 26 )
39. Decree sheet be prepared accordingly.
40. File be consigned to Record Room, after due compliance.
RAJESH Digitally by RAJESH signed KUMAR Date: 2024.09.05 KUMAR GOEL GOEL 14:50:09 +0530 (Rajesh Kumar Goel) District Judge (Commercial)-02 Central, Tis Hazari Courts 03.09.2024 Announced in the Open Court today i.e 03.09.2024 M/s Rajkamal Prakashan Pvt. Ltd & Ors Vs. Odisha State Bureau of Text Books & Ors Date of Judgment 03.09.2024 (page no. 26 of 26 )