Calcutta High Court (Appellete Side)
Svf Entertainment Private Limited vs Swapan Ghoshal on 23 December, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 Sn 23.12.19 C.O. 4357 of 2019 GB 39 SVF ENTERTAINMENT PRIVATE LIMITED VS.
SWAPAN GHOSHAL Mr. Krishnaraj Thakkar Ms. S. Dutta ..for the petitioner Mr. Subhobrata Datta Ms. Aranya Saha ..for the opposite party no.1 The present revisional application has been filed against an order dated December 17, 2019 passed by the learned Presiding Judge in the Court of learned District Judge, Alipore in Misc. Appeal No. 344 of 2019 rejecting the petitioner's application for stay of operation of the order no. 2 dated December 3, 2019 passed by the learned Civil Judge, Senior Division, 5th Court at Alipore in Title Suit No. 1187 of 2019.
The petitioner is a Company, which deals with film production, film distribution, television production and web production etc. The petitioner also produced Bengali films of acclaim. The petitioner claims that on the basis of an 2 agreement executed by Ms. Sananda Ganguly, an agent and constituted attorney of the opposite party nos. 3&4 (the heirs of late Saradindu Mukherjee), the petitioner got exclusive rights of all stories based on the character of 'Byomkesh Bakshi' authored by late Saradindu Bandopadhyay for the purpose of production of one or more audio visual programme primarily intended to be produced for exhibition through the internet. It is contended that from October 2017, the petitioner Company has been producing web series on the stories of Byomkesh Bakshi which were available as a web series in Hoichoi App.
The petitioner claims that the petitioner was served a notice dated December 3, 2019 by a learned Advocate informing the petitioner about the institution of Title Suit No. 1187 of 2019 by the opposite party no.1 against the petitioner & others and extract of the operative portion of an ad‐interim order dated December 3, 2019 passed by the learned Civil Judge, Senior Division, 5th Court at Alipore in the application for temporary injunction was also served upon the petitioner.
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Aggrieved by such an ad‐interim order, the petitioner preferred an appeal before the learned District Judge, Alipore, which was registered as Misc. Appeal No. 344 of 2019. The petitioner filed an application for stay of operation of the order dated December 3, 2019 before the lower appellate Court. By an order dated December 9, 2019 the learned District Judge at Alipore, District 24 Parganas(South) refused to grant an interim order of stay of operation of the order dated December 3, 2019.
Aggrieved, the petitioner approached this Court by filing C.O. 4207 of 2019. C.O. 4207 of 2019 was disposed of by this Court upon contested hearing with a direction upon the learned District Judge at Alipore, District 24 Parganas(South) to hear out the application for grant of stay of operation of the ad‐interim order passed by the learned Trial Judge within the next date fixed, that is, within December 17, 2019. This Court clarified that the contents which were sold prior to December 3, 2019 and were scheduled to be aired would not be affected by the order dated December 3, 2019. Thereafter, the application for stay 4 was taken up for hearing by the learned Presiding Judge‐in‐ Charge of the Court of the learned District Judge at Alipore on December 17, 2019.
By the order impugned, the learned Presiding Judge rejected the application for stay dated December 9, 2019 and fixed the hearing of the appeal on January 15, 2020.
Aggrieved by this order, the petitioner has preferred this revisional application being the defendant no.1 in the title suit. The first contention of the petitioner is that the learned trial judge did not consider the prima facie case, the balance of convenience and/or inconvenience as also the irreparable loss and injury that would be caused to the plaintiff, if an urgent ad‐interim order of injunction restraining the defendant no.1/petitioner from broadcasting or playing short films and series of Byomkesh through Hoi Choi app and other multimedia channels was not passed. It is further urged by the petitioner that if at all, the plaintiff acquired right to deal with works of late Saradindu Bandopadhyay on the basis of an authorization dated May 7, 2001 which was considered by the learned Trial Judge, the 5 authorization was only with regard to TV serials. He further submits that as the learned trial judge had observed that the plaintiff came to learn that the defendant no.1 had infringed the right of the plaintiff by broadcasting short films, series of Byomkesh, then the learned trial judge ought to have considered the prima facie case as to whether the suit was at all maintainable under the provisions of The Copyrights Act, 1957. Moreover, whether the plaintiff had a prima facie case to go to trial on the basis of the pleadings contained in the plaint was to be taken into consideration, if in the opinion of the learned Trial Judge there appeared to be infringement of the right of the plaintiff. It was also urged that if the affidavit and the authorization dated May 7, 2001 are accepted to be true and correct, even then, both the documents show that the authorization was with regard to T.V. serials and cinema whereas, the petitioner's exclusive right was with regard to web series of Byomkesh to be published and aired through Hoi Choi app and other apps. Next, it is submitted that the learned Court of appeal below had erred in not considering the specific contention of the petitioner in the appeal, that is, 6 that the series of Byomkesh which has been aired through Hoi Choi app were available since 2017 and the plaintiff being a person, engaged in production of T.V. serials, Short Films and films of Byomkesh was aware of the same but he waited for a long time and filed the suit almost after two years and as such there is no emergent need for issuance of a blanket order of injunction restraining the defendant no.1/petitiner from publishing and airing the web series of Byomkesh through Hoi Choi App. It is further contended that the authorization on the basis of which the ad‐interim order was passed could not be taken as lawful in view of the fact that copyright could not be assigned or licensed to another person without any provision for payment of consideration under the law. Thus, based on such authorization which was not sustainable in law, a blanket ad‐interim order restraining the defendant no.1/ petitioner from publishing any web series on the Hoi Choi app or dealing with any work of late Saradindu Bandopadhyay with relation to Byomkesh could not have been passed. It is also contended that neither the affidavit nor the letter of 7 authorization had assigned the right to publish web series on Hoi Choi app or other apps to the plaintiff and the petitioner could not be restrained from publishing such web series.
Lastly, it is urged that while considering the question of grant of stay, the learned lower appellate Court ought to have taken into consideration the documents produced by the petitioner and the argument advanced by the petitioner with regard to the need for grant of stay as the petitioner has already published the web series from 2017 which were on air and available on the Hoi Choi app for the past two years. Such a stay could not be granted without affording an opportunity of hearing to the defendant no.1 and the learned trial Court ought to have given an opportunity to the defendant no.1 before passing a blanket order of injunction as there was no imminent urgency to protect the plaintiff. He further submits that the order of rejection of the application for stay by the learned District Judge is bereft of any reasons and before passing the order, the prima facie case of the plaintiff qua the petitioner, the irreparable loss and injury and balance of convenience and 8 inconvenience should have been weighed.
The petitioner relies on the following decisions:
The Bengal Club Limited Vs. Susanta Kumar Chowdhary reported in AIR 2003 CAL 96, Industrial Credit and Investment Corporation of India Ltd. Vs. Grapco Industries Ltd. & ors. reported in (1999) 4 SCC 710 and Shiv Kumar Chadha Vs. Municipal Corporation of Delhi & ors reported in (1993) 3 SCC 161.
Mr. Datta, learned Advocate appearing on behalf of the plaintiff/opposite party no.1 submits that this is a declaratory suit and the question as to whether there is any infringement of copyright and whether the suit is maintainable in view of the provisions of Copyright Act, will be decided at the time of evidence. Mr. Datta further states that the said ad‐interim order was passed only on the basis of the pleadings of the plaintiff and there was no necessity to hear the defendant no.1 or consider his case even, at the appellate stage. The only documents that the learned lower appellate Court could have relied upon or considered at this stage were those filed by the plaintiff. The balance of 9 convenience and/or inconvenience as also the irreparable loss and injury that the plaintiff would suffer if the ad‐ interim order of injunction was not granted were the only consideration before the learned courts and not the irreparable loss and injury to be suffered by the defendant No.1. Mr. Datta further submits that the scope of interference under Article 227 was very limited and unless there is error on the face of record or violation of the principle of natural justice, this Court should not interfere with the order impugned.
Mr. Datta further submits that the appeal has been kept for hearing on January 15, 2020 and as such whether the order passed by the learned Trial Judge was justified will be decided by the learned Court of appeal below. At this stage there is no urgent need for interfering with the order impugned. Mr. Datta relies on the documents by which the right to deal with all kinds of work of late Saradindu Bandopadhyay through the medium of cinema, T.V. Serials and future publications in electronic multi media had been assigned to the plaintiff. Mr. Datta points out 10 several certificates issued by the Central Board of Films Certification to show that the plaintiff has exclusive right to make pictures on any work of late Saradindu Bandopadhyay relating to Byomkesh. Mr. Datta relies on the following decisions :‐ Rajesh Baid & Anr. Vs. Mohammad Ibrahim reported in AIR 2016 CAL 344, Sameer Suresh Gupta Vs. Rahul Kumar Agarwal reported in (2013) 9 SCC 374 and Sneh Gupta Vs. Devi Sarup & Ors. reported in (2009) 6 SCC
194. I have heard the learned Advocates for the parties and considered the rival contentions. The order dated December 3, 2019 is as follows :‐ "Hence, it is ordered that the defendant no.1 its men and agent are hereby restrained from broadcasting and playing Short Films and Serial of Byomkesh Bakshi through Hoichoi App (Web Internet) and other medias in any manner or form detrimental to the interest of the plaintiff.
Plaintiff is directed to comply with the provision of Order 39 R‐3(a) of CPC.
Order of interim injunction shall remain in force till 23‐12‐2019.
Plaintiff to take steps.
Requisite at once.
Fix 23‐12‐2019 FOR S/R and appearance."
11It appears that the learned Trial Judge prima facie came to a conclusion that the plaintiff had acquired right over T.V. serials and Short Films of Byomkesh from the defendant no.2, who was the constituted attorney of the defendant nos. 3 to 5. The said right was acquired by the plaintiff on May 7, 2001 which authorized the plaintiff to create series of Byomkesh for entertainment channel etc. The learned trial Judge recorded that on November 30, 2019, the plaintiff came to know that the defendant no.1 has infringed the right of the plaintiff by producing series on Byomkesh through Hoi Choi app, which was detrimental to the interest and right of the plaintiff. That the defendant no.1 had no right to broadcast the series of Byomkesh at any point of time and the defendant no.1 in collusion with the defendant nos. 3 to 5 had been allowed to continue to deal with the work of late Saradindu Bandopadhyay which has resulted in loss to the plaintiff.
From a bare reading of the order, it appears that the learned Trial Judge considered the prima facie case of the plaintiff on the basis of the authorization dated May 7, 2001. 12 The learned Trial Judge passed the order on the basis of an assumption that the defendant no.1/petitioner was trying to broadcast serials and short films of which, prima facie, the plaintiff had the right. While passing the order, the learned Trial Judge restrained the defendant/petitioner from broadcasting and playing short films and series of Byomkesh through Hoi Choi app and other medias. The document, relied upon by the learned Trial Court clearly mentions about publication of T.V. serials. The affidavit dated November 24, 2005 also speaks about Bengali T.V. serials for satellite channel or any digital and electronic media or any future electronic multimedia. The said affidavit was not relied upon by the learned Trial Judge while passing the interim order of injunction. The contention of the petitioner before the lower appellate court was that the plaintiff was well aware of the web series on Hoi Choi app since 2017 as specifically stated in the application of stay. In the written objection this fact was not denied. It has been further pointed out to the learned lower appellate court, that under the law the suit was not maintainable and the learned trial judge 13 without considering whether the plaintiff had a case to go to trial could not have passed such a blanket order, solely relying on the document dated May 7, 2001. From the order dated December 17, 2019 which is impugned before this Court, it appears that the learned District Judge at Alipore has noted down the arguments of the parties but has not specifically dealt with the contentions of the petitioner with regard to the maintainability, prima facie case, balance of convenience and inconvenience and irreparable loss and injury. By an order dated December 12, 2019 this Court had observed that the prima facie case and balance of convenience and inconvenience be weighed and the learned lower appellate court should apply its mind to the contentions of the appellant. Unfortunately, these factors have not been taken into consideration by the learned lower Appellate Court, but, the learned court has held that having considered the documents placed before the Court, prima facie it appeared that the learned trial judge considered all the aspects in its proper perspective and passed the ad‐interim order of injunction. Unfortunately, the only document which 14 the learned Trial Judge relied on was the document dated May 7, 2001, by which the right to produce T.V. serials on the work of late Saradindu Bandopadhyay in relation to Byomkesh was assigned. Subsequently, an affidavit was also entered into which was not dealt with by the learned trial judge, wherein, it appeared that such T.V. serials could also be aired through electronic multimedia. However, the learned court of appeal below has not considered any of the parameters required to be considered while deciding an appeal from an ad‐interim order of injunction, specially, with regard to the grounds for stay of such an order of injunction pleaded by the petitioner.
In the decision of The Bengal Club Ltd. (Supra) a Division Bench of this Court observed that while considering whether there has been suppression of material facts and whether the defendants had a prima facie case, the appellate court should consider the documents produced before it by the defendant in the suit in order to do complete justice.
In the decision of Morgan Stanley Mutual Fund 15 vs. Kartick Das reported in (1994) 4 SCC 225, the factors which the court should weigh before granting an ex parte ad‐ interim injunction was laid down as hereunder:‐ "(a) whether irreparable or serious mischief will ensue to the plaintiff;
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;
(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;
(f) even if granted, the ex parte injunction would be for a limited period of time;
(g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court."
In the decision of Shiv Kumar Chadha (Supra) it has been held that an ad‐interim order of injunction should be given in very exceptional circumstances and it should be an exception and not the rule. The relevant portions are quoted below:‐ "TEMPORARY INJUNCTION
30. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of 16 injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles -- ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.
32. Power to grant injunction is an extraordinary power vested in the court to be exercised taking into consideration the facts and circumstances of a particular case. The courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite‐party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite‐party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay...".
33. It has come to our notice that in spite of the aforesaid statutory requirement, the courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot ignore that 17 requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.
34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said "the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite‐party". The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite‐party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non‐compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far‐reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage 18 for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well‐known cases of Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJ Ch 373] and Nazir Ahmed v. Emperor [AIR 1936 PC 253 (2) : 63 IA 372 : 37 Cri LJ 897] . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare [(1975) 1 SCC 559 : AIR 1975 SC 915] .
35. As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying:
"Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion....
An ex parte injunction should generally be until a certain day, usually the next motion day....""
Thus, the learned appellate court ought not to have rejected the application for stay without assigning any reasons and without judging the parameters as laid down in the decision of Morgan Stanley (supra). Moreover the restraint on airing series of Byomkesh on Hoichoi app without considering the document dated May 7, 2001 in its 19 proper perspective was erroneous. The said document mentioned only T.V. serials and not about web series. The learned trial judge was not within his jurisdiction to have restrained any production of web series at this stage by an ex parte order without ascertaining whether the plaintiff had ever produced any web series or was planning to produce a web series. The plaintiff/opposite party No.1 has failed to produce any document to show that he was also in the business of producing web series and was on the verge of airing such web series. Moreover, the learned Court of Appeal below failed to consider these points and first and foremost, failed to consider that there was specific averment in the application and memorandum of appeal that the said web series was on air since 2017 and the suit was filed only in 2019 and as such the balance of convenience and inconvenience as also the irreparable loss and injury weighed against passing an order of injunction in stopping the web series on Hoi Choi app.
In the decision of Industrial Credit and Investment Corporation of India Ltd. (Supra) the Apex 20 Court held that the High Court in exercise of the power under Article 227 of the Constitution of India while assessing whether ex‐parte injunction could be granted could go into the merits. The relevant portion is quoted below:‐ "14. The High Court also said that on merits as well the Tribunal was wrong in granting an ex parte order. It is not that the High Court itself considered the merits of the case. The objection of the High Court was twofold: (1) the Tribunal did not give any reasons, and (2) it was an omnibus order and that there was no reference even to prayers in the application and that the prayers stood allowed "in terms of entire hog". Criticism of the High Court appears to be correct on that account. The judgment of the High Court, however, does not refer at all to the facts of the case and it proceeds more on abstract principles of law. There was no bar on the High Court to itself examine the merits of the case in the exercise of its jurisdiction under Article 227 of the Constitution if the circumstances so require. There is no doubt that the High Court can even interfere with interim orders of the courts and tribunals under Article 227 of the Constitution if the order is made without jurisdiction. But then a too technical approach is to be avoided. When the facts of the case brought before the High Court are such that the High Court can itself correct the error, then it should pass appropriate orders instead of merely setting aside the impugned order of the Tribunal and leaving everything in a vacuum."
Under such circumstances, I modify the ad‐ interim order passed by the learned trial judge to the effect that the web series of Byomkesh to be aired on and from December 24, 2019 or around that time shall be going on air 21 but, the defendant no.1/petitioner will be restrained from dealing with any other work of Byomkesh through any other app or channel until the learned District Judge disposes of the Misc. Appeal No.344 of 2019. I accept the contention of Mr. Datta to the extent that whether the learned trial judge was correct in passing the order of injunction was a matter to be decided in appeal but having gone through the prima facie case and the balance of convenience and inconvenience, I think the petitioner has made out a case, that there was no occasion for the learned trial judge to pass a blanket order of stay on the publication and airing of the web series of Byomkesh on Hoi Choi app.
With the aforesaid observations, the revisional application is disposed of. As the opposite party no.2 has expired, none of the orders are binding on his heirs. The other opposite parties have not contested as yet, as such, service of notice of this revisional application upon the said opposite party is dispensed with.
This Court has not decided any other issue except the points raised with regard to the urgent need for 22 allowing the petitioner to air the web series on Hoi Choi app which is going to be published through internet on December 24, 2019 because the plaintiffs have failed to show that they have been assigned any right to publish any web series on Byomkesh through Hoi Choi app. It is also made clear that web series already sold to various channels before the order of injunction and are on air are not to be affected by the order of injunction. The order of injunction will continue with regard to all short films, T.V. serials, cinema and other Byomkesh web series apart from the web series to be released on and from December 24, 2019 on Hoi Choi app till the disposal of the appeal.
The observations made hereinabove are only for the purpose of disposal of the revisional application. Neither learned trial judge nor the learned District Judge will be influenced by these observations. The appeal should be disposed of as early as possible.
The revisional application is disposed of. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if 23 applied for, be given to the parties on priority basis.
(Shampa Sarkar,J.)