Delhi High Court
Neetu Singh vs Rajiv Saumitra & Orsq on 8 January, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 8th January, 2018.
+ CS(COMM) 935/2016, CCP(O) No.32/2017, OA No.115/2017 &
IA NO.9488/2017 (for condonation of 105 days delay in filing
OA) & IAs No.9822/2017 (of defendants u/O XI R-10 CPC) &
10321/2017 (of defendants u/S 151 CPC) & CC (COMM) No.
118/2017
NEETU SINGH ..... Plaintiff
Through: Ms. Rajeshwari H. & Mr. Tahir A.
J., Advs.
Versus
RAJIV SAUMITRA & ORS ..... Defendants
Through: Mr. Murari Tiwari, Mr. Rahul
Kumar and Mr. Devesh Gupta,
Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit for permanent injunction
restraining the three defendants i.e. (i) Rajiv Saumitra; (ii) Paramount
Coaching; and, (iii) Anil Anand from reproducing, publishing,
distributing, selling, offering for sale the literary work "English for
General Competitions" or any other book copyright whereof vests with
the plaintiff and for recovery of damages.
2. The suit was entertained and summons thereof ordered to be
issued, though no ex-parte injunction as sought, granted. Common
written statement was filed by the defendants no.1&2 and a separate
CS(COMM) 935/2016 Page 1 of 9
written statement filed by defendant No.3 and to both of which
replications have been filed by the plaintiff.
3. The defendants No.1&2 have filed a Counter-Claim to restrain the
plaintiff from reproducing, publishing, distributing, selling, offering for
sale the literary work "English for General Competitions" and for
recovery of damages from the plaintiff.
4. The pleadings in the Counter-Claim have also been completed.
5. Vide order dated 4th August, 2017, the application of the plaintiff
for interim relief was allowed and the defendants were restrained from
reproducing, publishing, distributing, selling, offering for sale the literary
work titled "English for General Competitions" or any other book
copyright whereof vests with the plaintiff and from reproducing,
publishing, distributing, selling, offering for sale the artistic work being
the "Two Mountains" or any other artistic work copyright whereof vests
with the plaintiff.
6. The defendants have allowed the said interim order to attain
finality and have not preferred any remedy thereagainst.
7. The Suit and the Counter-Claim are listed today for framing of
issues.
8. The defendants have also preferred a Chamber Appeal being OA
No.115/2017 against the order dated 20th April, 2017 of the Joint
Registrar closing the opportunity of the defendants of admission/denial of
the documents of the plaintiff, along with IA No.9488/2017 for
condonation of 105 days delay in filing thereof. The defendants have
CS(COMM) 935/2016 Page 2 of 9
also filed an application for filing additional documents being IA
No.9822/2017. Another application being IA No.10321/2017 under
Section 151 of the Code of Civil Procedure, 1908 (CPC) has also been
filed by the defendants for the said relief.
9. The plaintiff has filed CCP(O) No.32/2017 alleging violation of the
interim order.
10. The plaintiff Neetu Singh and the defendant no.1 Rajiv Saumitra
are wife and husband respectively, whose marriage has run into trouble
and besides the present suit, several other proceedings are stated to be
pending between the parties.
11. It is not in dispute that while the plaintiff and the defendant no.1
were together, both were Directors of the defendant no.2 Paramount
Coaching Centre Private Limited and which is now being managed and
controlled by the defendant no.1 only.
12. The defendant no.3 Anil Anand is the publisher of "English for
General Competitions".
13. The counsel for the plaintiff, on enquiry, states that only one book
i.e. "English for General Competitions" is the subject matter of the
present suit.
14. The said book comprises of a compilation of Multiple Choice
Questions along with Answer key thereof for tests of English language in
various competitive examinations.
15. The counsel for the plaintiff contends that in the editions of the
book published in May, 2014 and February, 2015, the plaintiff is shown
CS(COMM) 935/2016 Page 3 of 9
as the author thereof and the plaintiff also has a copyright registration of
the said book and its contents.
16. The contention of the counsel for the defendants is that the
marriage of the plaintiff and the defendant no.1 ran into trouble in May,
2015 and the book, first edition whereof, as aforesaid, was published in
May, 2014 and second edition in February, 2015, was published, when
the plaintiff and the defendant no.1 were together and were Directors of
the defendant no.2 and the book was published by the team of the
defendant no.2 and the plaintiff in the book is described as the Director of
the defendant no.2. It is further the contention of the counsel for the
defendants that the plaintiff as the Director of the defendant no.2 was
drawing a package of Rs.10 lacs per month and the copyright in the book
thus vests in the defendant no.2 and not in the plaintiff and the plaintiff is
not entitled to any relief.
17. In the interim order dated 4th August, 2017, the aforesaid pleas of
the defendants have been dealt with by reasoning that the defendants can
at best invoke proviso (c) to Section 17 of the Copyright Act, 1957.
18. Admittedly, the plaintiff was working as a Director of the
defendant no.2 and the book aforesaid was published from 2012 to 2014.
The defendants have not placed on record any material to show that the
book was authored by the plaintiff as part of duties and obligations of a
Director of the defendant no.2. No Agreement in this regard or Articles
or Memorandum of Association of the defendant no.2 has been placed on
record and in the absence thereof, it cannot be said that the defendants are
entitled to the benefit of proviso (c) to Section 17 of the Act.
CS(COMM) 935/2016 Page 4 of 9
19. Supreme Court in Ram Pershad Vs. The Commissioner of
Income-Tax, New Delhi 1972 2 SCC 696 held that a Director of a
company is not a servant but an agent of the company; only when the
Director is employed as the Managing Director, would he have the
capacity as the Managing Director of an employee of the company and
the nature of his employment is to be determined by the Articles of
Association of the company and/or by the Agreement, if any entered into
between him and the company.
20. In the present case, the defendants have not placed on record any
document to show that the plaintiff was working as an employee of
defendant No.2.
21. The counsel for the defendants states that the defendants now seek
to file an application to place on record an application filed by the
plaintiff in another proceeding where the plaintiff has admitted to have
received salary of Rs.10 lacs from the defendant no.2 as well as the
Memorandum of Articles of Association and similar books published by
the defendant no.2 from the year 2009 onwards.
22. As far as the Memorandum and Articles of Association is
concerned, the counsel for the defendants is unable to state the relevance
thereof for the present controversy. As far as the books which are now
sought to be filed are concerned, I have enquired from the counsel for the
defendants, which portions thereof are identical to the book aforesaid,
subject matter of this suit.
23. The counsel for the defendants states that he is unable to show any
document in support of his contention.
CS(COMM) 935/2016 Page 5 of 9
24. I am constrained to observe that the defendants, though desirous of
keeping the suit and the counter-claim alive, are found to be totally
lacking in preparation and not wanting to go ahead with the suit and
found to be interested merely in keeping the litigation alive. When the
parties come before this Court and have a commercial dispute qua which
special provisions have been made and which can be summarily disposed
of, the counsels ought to be prepared and if found to be lacking and
merely interested in keeping the litigation alive for collateral purposes
and not to get any relief, the Commercial Division of the High Court
would certainly be entitled to deal appropriately with such so called
„commercial litigants‟. The Commercial Division of this Court cannot
allow its process to be abused in this fashion.
25. The counsel for the plaintiff, during the hearing, has also informed
that the plaintiff, after 2015, has published one more edition of the book
aforesaid in the year 2016. Even otherwise, my experience in the context
of Delhi Judicial Services Examination shows that the format of the
questions in competitive examinations keeps on changing with time. I
have thus enquired from the counsel for the defendants, what purpose
keeping the present suit alive for this reason, will serve, inasmuch as the
book qua which the suit has been filed, is likely to be redundant and/or
subjected to substantial changes by the time the suit is decided.
Moreover, none can claim exclusivity to the subject and the nature of the
book which is a compilation of probable/likely questions in the subject of
English in various competitive examinations is such that the copyright
with respect thereto can only be in formatting, chronological order and
language of the questions.
CS(COMM) 935/2016 Page 6 of 9
26. The counsel for the plaintiff has contended that the book aforesaid
also comprises inter alia of a guide to the candidates to solve and
determine the right answer and contains explanations of various
expressions of English language.
27. Again, none can claim copyright in the aforesaid also and the
copyright can only be in the language and manner in which the same is
explained. It is not as if, the defendants by the interim order are
restrained from publishing their own book of compilation of likely
questions. The defendants, if have any acumen in authoring another
similar book, are free to do so. However, when this suit was filed, they
were verbatim copying the book aforesaid.
28. The counsel for the defendants states that the defendants are
already publishing another book.
29. As regards the plea of the counsel for the defendants, of the
plaintiff having authored the aforesaid book with the team work of the
defendant no.2, the same is without naming any members of the team or
placing before this Court any document, evidencing their contribution and
the same does not constitute a material plea on which an issue is to be
framed.
30. The counsel for the defendants, of course, again states that he will
file such documents.
31. The defendants having missed the bus, if it is found that no
material questions of fact or law arise, cannot keep the suit alive in such
fashion.
CS(COMM) 935/2016 Page 7 of 9
32. Yet another argument of the counsel for the defendants is that in
another litigation between the parties, vide order dated 21 st March, 2016
in FAO (OS) No.60/2016 titled Rajiv Saumitra Vs. Neetu Singh and
Ors., the plaintiff has been restrained from using the title "English for
General Competitions - Plinth to Paramount".
33. However, a perusal of the said order shows the plaintiff to have
been restrained only from using the mark „Paramount‟, its goodwill and
from luring the teachers, students or several members of the defendant
no.2 and to have been directed to remove „Paramount‟ from all hoardings,
advertisements, brochures and other materials.
34. The counsel for the plaintiff, on enquiry, states that the plaintiff is
complying with the said order and in the title of the subsequent editions
has not used the word „Paramount‟.
35. In this view of the matter, the pleadings of the parties are not found
to raise any material question of fact or law, insofar as the relief of
permanent injunction is claimed in the present suit.
36. The counsel for the plaintiff, on enquiry, states that if the suit for
permanent injunction, as sought, is decreed today, the plaintiff for the
sake of minimising litigation, will not press for damages.
37. Though the counsel for the defendants presses for the relief for
damages but once the defendants are found to be liable for permanent
injunction, the question of the defendants being entitled to any damages
from the plaintiff, does not arise.
CS(COMM) 935/2016 Page 8 of 9
38. The counsel for the defendants states that the defendants, in the
Counter-Claim, have also sought the relief with respect to the artistic
work of "Two Mountains".
39. It transpires that the defendant no.1 has applied to the Registrar of
Trademarks for registration of a label with the word „Paramount‟ with the
device of two mountains and the plaintiff has filed opposition thereto.
40. The counsel for the defendants states that liberty be granted to the
defendants to separately pursue the relief with respect thereto.
41. Accordingly, the suit is disposed of by passing a decree in favour
of the plaintiff and jointly and severally against the defendants, of
permanent injunction, in terms of prayer paragraphs 36(a)&(b) of the
plaint dated 11th July, 2016 and with the clarification that the injunction
insofar as with respect to the artistic work of "Two Mountains" is
concerned, will be subject to the outcome of the proceedings aforesaid,
pending before the Registrar of Trademarks and any separate proceedings
filed by the defendants in future.
42. The parties are left to bear their own costs.
43. Decree sheet be drawn up.
44. All the pending applications and CCP are also disposed of in terms
of above.
RAJIV SAHAI ENDLAW, J.
JANUARY 08, 2018 mw (corrected & released on 12th February, 2018) CS(COMM) 935/2016 Page 9 of 9