JUDGMENT : Khanwilkar A.M., J. By consent, the Notice of Motion is being finally disposed of by this order. Briefly stated, the plaintiffs have approached this Court for relief of damages and injunction on account of infringement of copy rights of the plaintiffs as also on account of violation of contractual obligations by the defendant No. 1. 2. It is not in dispute that the defendant No. 1 is the producer/first copy right owner of two films namely "Jana Gana Mana (Vocal)" and "Jana Gana Mana (Instrumental)". 3. By an agreement dated 5th June, 2006 the defendant No. 1 granted "exclusive license" in respect of the theatrical rights in the said work to the plaintiffs so as to enable the plaintiffs to exploit the rights across the theatres (whether Fame Cinemas or any other theatres belonging to any other brand/entity) in the territory of Republic of India for a term of five years from the date of execution of the said agreement on terms and conditions referred to in the said agreement. 4. It is not in dispute that on 7th August, 2006 the plaintiffs addressed a communication to the defendant No. 1 recording the fact that the work of "Indian National Anthem" soulfully rendered by A.R. Rehman was exclusively launched at Fame Cinemas on 24th June, 2006; and that the plaintiffs were exclusive Cinema Partner for the stated venture all over India and will be partner in various Cinemas to play the said version. This letter also records an agreement reached between the parties that the Indian Anthem will now be exhibited in theatres of defendant No. 1. According to the plaintiffs, it was agreed between the parties that the defendant No. 1 would exhibit the said film without editing or cut and would be played completely. It is seen that the defendant No. 1 has signed at the foot of that Letter confirming the contents of the said communication dated 7th August, 2006. 5. Some time on 27th July, 2007 Bharat Ganpathy of defendant No. 1 addressed a letter to Shravan Shroff of plaintiffs on E-Mail mentioning that the defendant No. 1 intended to launch the vocal group rendition in other theatres for the sixty years of Independence celebration. Accordingly, request was made to the plaintiffs to permit the defendant No. 1 to have the vocal group rendition for other theatres to run. Accordingly, request was made to the plaintiffs to permit the defendant No. 1 to have the vocal group rendition for other theatres to run. It is further mentioned that other theatres will do the processing and will make prints on their own and run the film on their own. 6. In response to this communication, the said Shravan Shroff of plaintiffs wrote to Bharat Ganpathy of defendant No. 1, on 30th July, 2007, that the plaintiffs were comfortable with other theatres using the vocal rendition version but observed that as has been agreed in the past, other theatres must not delete any of the credits. Besides, the plaintiffs called upon the defendant No. 1 to disclose if other theatres would be paying for the usage of the said film. 7. As no response was received from defendant No. 1, Shravan Shroff of plaintiffs sent another E-Mail on 13th August, 2007, to Bharat Ganpathy of defendant No. 1, mentioning about progress, if any, in respect of the proposal referred to above. 8. It is the case of the plaintiffs that later on it came to the notice of the plain tiffs that the defendant No. 1 had permitted third party Cinema exhibitors to exhibit the vocal version of the work in their theatres without credits i.e. particularly without the name/logo of the plaintiffs being exhibited. That was done in violation of the License Agreement. Besides, defendant No. 1 did not provide any details to the plaintiffs about the terms and conditions on which the defendant No. 1 had permitted the third party exhibitors to display the vocal version of the work. As the plaintiffs were shocked and surprised by this attitude of defendant No 1, by legal notice dated 17th August, 2007, the plaintiffs revoked the permission granted by them in favour of defendant No. 1 under E-Mail dated 30th July, 2007 allowing exhibition of vocal version of the work in the theatres of third party exhibitors. Besides, on account of violation and breaches committed by the defendant No. 1, the plaintiffs expressed loss of faith in defendant No. 1 and for which reason also revoked the permission granted by them under letter dated 7th August, 2006 allowing exhibition of the work on the screens of defendant No. 1. Besides, on account of violation and breaches committed by the defendant No. 1, the plaintiffs expressed loss of faith in defendant No. 1 and for which reason also revoked the permission granted by them under letter dated 7th August, 2006 allowing exhibition of the work on the screens of defendant No. 1. By this communication the plaintiffs called upon the defendant No. 1 to forthwith refrain from exploiting theatrical exhibition rights and/or causing third party exhibitors to exploit the theatrical exhibition rights in the vocal version of the work in the territory of India during the term of the License Agreement. The plaintiffs also put the defendant No. 1 to notice that if the mischief is continued, the defendant No. 1 would be liable for infringement and the plaintiffs will be constrained to adopt legal proceedings as may be advised. On the same day i.e. on 17th August, 2007, another legal notice was sent by the plaintiffs to defendant No. 2 - the third parry, who were exploiting theatrical exhibition rights in the vocal version of the work on the basis of the permission given by defendant No. 1, thereby calling upon them to refrain from displaying the said work. The plaintiffs, in addition, gave public notice on 17th August, 2007 notifying all concerned that they have the sole and exclusive license of theatrical rights of the work which was subsisting for five years from 5th June, 2006 and were solely entitled to exploit and grant sub-license of the theatrical rights of the work and no other person, firm or party was entitled to exploit or cause third parties to exploit the theatrical rights in the work in the territory of India during the said term. After referring to other facts it is mentioned that any person, firm or party exploiting the work in the theatres/multiplexes shall be liable, inter alia, for infringement and damages and shall do the same at their sole risk as to costs and consequences. The plaintiffs also gave legal notice to defendant No. 3 who were also authorised by defendant No. 1 to exhibit the said work in their theatres thereby called upon them to refrain from exhibiting the work "Jana Gana Mana (Vocal)" and "Jana Gana Mana (Instrumental)" in their theatres/multiplexes, failing which the plaintiff shall be constrained to adopt legal proceedings against them. 9. 9. As the defendants did not remedy the mischief, the plaintiffs have approached this Court by way of present suit praying for following reliefs: a. that the defendants be ordered and decreed to pay to the plaintiff the sum of Rs. 50,00,000/- (Rs. Fifty lacs only) along with interest thereon at the rate of 24% per annum from the date of filing of the present suit until payment and/or realization thereof, being the loss and damage caused to the plaintiff by the infringement of the plaintiffs exclusive license and right in the theatrical rights in the said work (as described at Exhibit-A hereto); a. 1 that defendant No. 1 be ordered and decreed to render a true and faithful account of all income, revenue and exploits made by them, by granting permission to third parties pursuant to the E-Mail dated 30.7.2007 Ex. E. Thereupon the plaintiffs' share i.e. 50% thereof be ascertained and defendant No. 1 be ordered and b. that the defendants, acting by themselves and/or through their servants, agents and/or representatives and all other persons claiming by, through or under diem be restrained by an order and injunction of this Hon'ble Court from, in any manner, infringing the plaintiffs exclusive theatrical rights in the said work (as described at Exhibit A hereto) and/or exhibiting or causing to exhibit the said work or communicating or causing to communicate to the public the said work in theatres and/ or Cinemas anywhere in India in violation of the plaintiffs rights therein; c. that the defendants be ordered and directed by Hon'ble Court to deliver up all infringing copies of the said work (as described at Exhibit A hereto) which may be in, or may come into, their possession, and that the said infringing copies may be ordered to be destroyed by this Hon'ble Court; d. that the defendants be ordered and decreed by this Hon'ble Court to maintain to true and faithful account of all the profits earned by the defendants by exhibiting the said work (as described at Exhibit A hereto) in Cinemas and/or theatres and the defendants be further ordered and decreed to pay to the plaintiff such amount as may be found due on such account being taken and for this purpose all necessary orders be passed, directions given, enquiries made and accounts taken, as may be necessary; e. for interim and ad interim reliefs in terms of prayer Clauses (b) to (d) above; f. for costs; and g. for such other and further reliefs as this Hon'ble Court deems just and proper in the nature and circumstances of the present case. 10. 10. During the pendency of the suit, the plaintiffs have taken out present Notice of Motion praying for interim relief in the following terms: (a) That pending the hearing and final disposal, the defendants, acting by themselves and/or through their servants, agents and/or representatives and all other persons claiming by, through or under them be restrained by an order and injunction of this Hon'ble Court from, in any manner, infringing the plaintiffs exclusive theatrical rights in the said work (as described at Exhibit A hereto) and/or exhibiting or causing to exhibit the said work or communicating or causing to communicate the said work to the public in theatres and/or Cinemas anywhere in India in violation of the plaintiffs rights therein; (b) That pending the hearing and final disposal, the defendants be ordered and directed to deliver up all the infringing copies of the said work (as described in Exhibit A hereto) which may be in, or may come into, their possession; (c) That pending the hearing and final disposal, the defendants be directed to submit true and faithful account of all the profits earned by the defendants by exhibiting the said work (as described in Exhibit A hereto) in Cinemas and/or theatres and the defendants be directed to deposit in this Hon'ble Court such amount as may be found due on such account being taken; (d) That ad interim reliefs in terms of prayer Clauses (a) to (c) be granted. 11. The said Notice of Motion was moved for ex-parte ad interim relief on 24th August, 2007; having regard to the case made out by the plaintiffs on affidavit, ad interim relief in terms of prayer Clause (a) as prayed for, was granted. That relief has continued in favour of the plaintiffs so far. 12. The defendants have been duly served, however, the defendant No. 1 alone has entered appearance before this Court and also filed reply affidavit sworn by one Manas Malhotra, authorised representative of defendant No. 1. The substance of the stand taken in the reply affidavit is that by virtue of arrangement recorded in letter dated 7th August, 2006, the defendant No. 1 was authorised to permit exhibition of National Anthem in other theatres subject to condition that "National Anthem" cannot be edited or cut and has to be displayed completely. The substance of the stand taken in the reply affidavit is that by virtue of arrangement recorded in letter dated 7th August, 2006, the defendant No. 1 was authorised to permit exhibition of National Anthem in other theatres subject to condition that "National Anthem" cannot be edited or cut and has to be displayed completely. It is the case of the defendant No. 1 that even though the said communication records that the work was to be exhibited in their theatres, but at the relevant time the plaintiffs were aware that the defendant No. 1 did not own any theatres-which means that the plaintiffs had permitted the defendant No. 1 to allow third parry to exhibit the work in their theatres. It is stated that with a view to participate in the celebrations of sixty years of Independence, defendant No. 1 approached the plaintiffs vide E-Mail dated 27th July, 2007 seeking permission to have the vocal group rendition for other theatres. The letter recorded that the processing and making of prints will be done by the other theatres on their own. This was to avoid delay in launching celebrations of sixty years of Independence. It is the case of defendant No. 1 that no response was received from the plaintiffs, for which reason the defendant No. 1 went ahead and allowed the third party Cinema theatres to exhibit the song (vocal version). It is the case of the defendant No. 1 that the third party Cinema theatres were not given the version given to the plaintiffs, but the said third parry theatres expended their own time, effort and money to independently create the Cinema theatre version of the National Anthem and exhibit the same. Further, the defendant No. 1 asserts that he has not earned any money from any third party theatres in this regard. According to the defendant No. 1, there was no condition of exhibiting the work with credit to the plaintiffs. For, the plaintiffs were not the author. Whereas, the credit is required to be given to the author and not to any licensee. According to the defendant No. 1, the plaintiffs cannot base its claim on copyright law nor any contract. Inasmuch as, there was no contract to exhibit the work only with the credit given to the plaintiff. The credit part does not form part of the work within the meaning of the agreement. According to the defendant No. 1, the plaintiffs cannot base its claim on copyright law nor any contract. Inasmuch as, there was no contract to exhibit the work only with the credit given to the plaintiff. The credit part does not form part of the work within the meaning of the agreement. It is the case of the defendant No. 1 that the inherent right to claim credit for or in connection with the National Anthem, if any, vests solely with the defendant No. 1 - the author of the National Anthem Recordings. According to the defendant No. 1, the plaintiffs have failed to disclose the essential intention of the agreement executed between the parties, which was to exhibit the National Anthem Recordings all across the country and not just limited to the plaintiffs Cinema Halls. Significantly, defendant No. 1 denied having received the E-Mail dated 30th July, 2007 allegedly sent by the plaintiffs to the defendant No. 1. The defendant No. 1 asserts that there is neither a case of infringement of copyright nor violation of any contractual obligation, as is suggested by the plaintiffs. 13. The plaintiffs filed rejoinder affidavit controverting the stand taken by the defendant No. 1 in the reply affidavit including the factual assertion that the copy of E-Mail dated 30th July, 2007 was not received by defendant No. 1. The plaintiffs, on the other hand, have relied on the Delivery Status Report issued by the Internet Service Provider which belies the claim of the defendant No. 1. The plaintiffs have reiterated their stand that the defendant No. 1 could have allowed third parties to exhibit the said work, provided, the same was without editing and cut and in the same version which included credits incorporated in the film in terms of the requirements under Clause 2.9 of the Principal Agreement. According to the plaintiffs, the stand taken on behalf of defendant No. 1 was self-contradictory. The plaintiffs assert that the plaintiffs alone were entitled to grant sub-license in the work and the plaintiffs having allowed defendant No. 1 on condition that the work will be exhibited in its complete form, the defendant No. 1 could not have separated the credits from the said version and allowed third parties to exhibit the work in which the plaintiffs had exclusive license. According to the plaintiffs, it is not only a case of infringement of copyrights but also a clear case of violation of contractual obligation. For which reason interim relief, as prayed for, ought to be granted. 14. After having considered the rival submissions and examining the pleadings and documents on record, there is no doubt that the plaintiffs have the "exclusive license" in respect of theatrical rights in the two films namely "JANA GANA MANA (VOCAL)" and "JANA GANA MANA (INSTRUMENTAL)" produced by defendant No. 1 and the plaintiffs were entitled to exhibit this right across all theatres (whether Fame Cinemas or any other theatres belonging to any other brand/entity) in the territory of Republic of India for a period of five years from the date of execution of Agreement dated 5th June, 2006. It will be apposite to advert to some of the relevant clauses in the agreement. The recital of the agreement reinforces the claim of the plaintiffs that the defendant No. 1 - the producer/first copyright owner of the two films, granted exclusive license in respect of theatrical rights in the said work to the plaintiffs to be exploited by the plaintiffs across all theatres through out India for a term of five years from the date of execution of the agreement. Clause-1 of the agreement provides for definition and interpretation. The expression "Agreement" has been defined to mean "the said agreement and any amendments and modifications made by the parties and evidence in writing including annexures or schedules attached to it or incorporated in it by reference". Clause-1 also provides for definition of "Intellectual Property Rights" in relation to the said work. The definition of the "Theatrical Rights" postulates that the theatrical rights shall mean the right to exploit the said work/communicate the said work to the public, only by means of exhibition of the said work through Cinema theatres. The expression "the said Work" is defined to mean that it shall have the same meaning as mentioned in Recital-B of the agreement which refers to two films. Clause-2 of the agreement deals with principal understanding. Clause 2.1 records that the defendant No. 1 has granted exclusive license in respect of the theatrical rights in the said work to the plaintiffs so as to enable the plaintiffs to exploit the theatrical rights across all Cinema theatres through out India during the term of the agreement. Clause-2 of the agreement deals with principal understanding. Clause 2.1 records that the defendant No. 1 has granted exclusive license in respect of the theatrical rights in the said work to the plaintiffs so as to enable the plaintiffs to exploit the theatrical rights across all Cinema theatres through out India during the term of the agreement. Clause 2.2 postulates that the plaintiffs shall have the right to sub-license the rights in the said work for the same purpose as specified in the agreement and upon such terms and conditions as set out in the agreement. Clause 2.3 records that the plaintiffs were to get the said work processed for the purposes of exploiting the theatrical rights granted therein and all costs in respect of such processing of the said work were to be incurred by the plaintiffs. It is agreed between the parties that the processing of the said work was to be done by the plaintiffs in consultation with the technical team of defendant No. 1. It is also provided that the processing of the said work shall be done in the manner as to retain the original theme of the said work and not to interfere with the integrity of the said work. Clause 2.4 authorises the plaintiffs to have tie-up with some reputed brand for the purposes of off-setting the cost of processing, which arrangement was to be concluded upon taking prior consent of defendant No. 1. It is also provided that the monies generated from such tie-ups shall be shared between the parties as per Clause 2.8. Clause 2.6 provides for term of the agreement to be five years from execution thereof. Clause 2.8 deals with revenue sharing modalities. In substance, it provides that the plaintiffs would be entitled to first adjust expenses incurred by them in respect of the costs of processing out of the monies received and the balance was to be shared equally in the ratio of 50:50 between the plaintiffs and defendant No. 1. Clause 2.9 is of some significance for deciding the controversy brought before this Court. The same reads thus: 2.9 Credits SCL have the right to present its name/logo on the said Work including the name/logo of any other brand/sponsors identified by SCL, along with BB's name/logo in such manner as is mutually agreed between the Parties. Clause 2.9 is of some significance for deciding the controversy brought before this Court. The same reads thus: 2.9 Credits SCL have the right to present its name/logo on the said Work including the name/logo of any other brand/sponsors identified by SCL, along with BB's name/logo in such manner as is mutually agreed between the Parties. It is expressly clarified between the parties hereto that in the beginning and at the end of the said work, the name/logo of SCL and BB will appear in the following order and manner: (1) BB Presents (First slate) 2) In association with SCL (Second slate) 3) Supported by HDFC Insurance (Second slate) 4) Jana Gana Mana (Third slate) 5) Music Video 6) Thanking all artist on one slide and music Produced by A.R. Rehman (Fourth slate) 7) A film by BB production With Copyright and logo (Fifth slate) 8) Supported by HDFC Insurance (Six Slate) remains on the slate 9) Other Logos (Prasad Group, Kodak, Pixion, Shringar Cinemas). 15. Besides the above said terms it will be useful to refer to Clause 3 of the agreement which provides for representations and warranties. Clause 3.1.6 records the representation made by defendant No. 1 that it shall not grant theatrical rights in the said work to any one else during the term of the agreement. Besides, any enquiries received by the defendant No. 1 for theatrical distribution of the said work, shall first be communicated to the plaintiffs for discussion and/or negotiations. Clause 4 of the agreement deals with the manner of terminating the agreement. Whereas, Clause 5 postulates that all disputes and differences between the parties in relation to the agreement and/or its interpretation shall be referred to arbitration of a sole Arbitrator to be mutually appointed by the parties. 16. On analysing the terms of Agreement dated 5th June, 2006 there is no doubt that the plaintiffs have the exclusive license in respect of theatrical rights in the two films produced by defendant No. 1 and the plaintiffs are competent to exploit said rights across all theatres through out India for a period up to five years from the date of execution of the agreement. Further, the plaintiffs alone have right to sub-license the rights in the said work. Further, the plaintiffs alone have right to sub-license the rights in the said work. Without the permission of the plaintiffs, the said work cannot be exploited by defendant No. 1 itself or for that matter caused to be exploited by any third party permitted by defendant No. 1 merely because it is the producer/first copyright owner thereof. The provisions of the Copyright Act would support the stand of the plaintiffs that they have the exclusive right in the said work so long as the agreement was subsisting, being exclusive licensee. During the subsistence of the agreement, no other person including defendant No. 1 could exploit the said work without the prior permission "in writing" of the plaintiffs. In absence of such prior permission, it will be a clear case of infringement of copyright of the plaintiffs within the meaning of Section 51 of the Act. In case of such infringement, the plaintiffs would be justified in resorting to civil remedies being an exclusive licencee, in terms of Chapter-XII of the Act. 17. It is common ground that the said work has been exploited by defendant No. 1 during the term of agreement by allowing third parties to exploit the same. The question is: whether that has been done with prior permission of the plaintiff in writing. To examine this aspect we shall straight way turn to document Exhibit-C dated 7th August, 2006, which is a communication issued on the letter head of plaintiffs, addressed to the defendant No. 1. The same records arrangement arrived at between the parties after the execution of the suit agreement. The text of the said letter reads thus: Dear Sir, Bharat Bala Productions' - Indian National Anthem soulfully rendered by A.R. Rehman was exclusively launched at Fame Cinemas on 24th June, 2006. Shringar Cinemas Ltd. is the exclusive Cinema Partner for this venture all over India and will be partnering with various Cinemas to play this version. As per our agreement, this national anthem will now be exhibited at your screens too. We would like to bring to your notice that this National Anthem cannot be edited or cut and has to be played completely. We request your support on the above. Please sign this, as a letter of acceptance of playing the Indian National Anthem in full on your screens. We would like to bring to your notice that this National Anthem cannot be edited or cut and has to be played completely. We request your support on the above. Please sign this, as a letter of acceptance of playing the Indian National Anthem in full on your screens. Your Truly, For Shringar Cinemas Ltd. We confirm For Bharat Bala Productions sd/- Authorised Signatory sd/- Received by sd/- According to the defendant No. 1, the plaintiffs permitted the defendant No. 1 to exploit the work in other theatres other than that of the plaintiffs. Besides, there was no condition that the credits along with the work should be exhibited. It is the case of defendant No. 1 that this permission allowed the defendant No. 1 to permit even other parties to exhibit the work in their theatres, as at the relevant time the plaintiffs were aware that the defendant No. 1 had no theatres of their own. 18. In the first place, it is seen that defendant No. 1 has acknowledged the contents of this letter as it has put signature of its authorised officer in confirmation thereof. The first part of the letter clearly gives the impression that the discussion between the parties were in respect of the "film as launched at Fame Cinemas on 24th June, 2006" titled "Indian National Anthem". The agreement arrived at between the parties, therefore, is in relation to the "whole version" of the said film as was launched at Fame Cinemas on 24th June, 2006. The said film was launched after duly processing the original work of defendant No. 1, as required by Clause 2.3 and in the form provided in Clause 2.9. Clause 2.9 which has been reproduced in its entirety in the earlier part of the judgment, firstly indicates that the plaintiffs have right to present its name/logo on the said work including the name/logo of any other brand/sponsored identified by the plaintiffs along with defendant's name/logo in such a manner as is mutually agreed between the parties. The second part of Clause 2.9 records the agreement between the parties as to the manner in which the processed film should be exhibited. It is provided that at the beginning and at the end of the said work, the name/logo of SCL (plaintiffs) and BB (Defendant No. 1) will appear in the order provided in Clause 2.9 of the principal agreement. It is provided that at the beginning and at the end of the said work, the name/logo of SCL (plaintiffs) and BB (Defendant No. 1) will appear in the order provided in Clause 2.9 of the principal agreement. Suffice it to observe that the version which was launched at Fame Cinemas on 24th June, 2006 was the product of the principal agreement. The agreement recorded in communication dated 7th August, 2006 deals with the said version. By virtue of the expansive definition of "agreement" in the principal agreement (Clause 1.1) the agreement reached between the parties as recorded in the communication dated 7th August, 2006 would form part of the principal agreement. 19. On analysing the terms of the principal agreement and the agreement recorded in communication dated 7th August, 2006, there is no doubt that it is in relation to the work which has been duly processed by the plaintiffs as per its obligation under the principal agreement and launched at the Fame Cinemas on 24th June, 2006. The permission accorded by the plaintiffs, therefore, is not, limited to the "said work" which has been originally produced by defendant No. 1 as such. The second part of communication dated 7th August, 2006 reinforces the position that the agreement was in respect of "film Indian National Anthem as launched at Fame Cinemas" on 24th June, 2006. Inasmuch as, it mentions that the plaintiffs are the exclusive Cinema partner for this venture all over India and will be partner in various Cinemas "to play this version". The words "to play this version" obviously refer to the film as launched in the Fame Cinemas on 24th June, 2000. The stand of defendant No. 1 that plaintiffs were aware that at the relevant time the defendant No. 1 had no theatres of their own, has been categorically denied by the plaintiffs. That will be a matter to be established at the trial. The fact remains that there was unambiguous understanding between the parties about the scope of permission given by the plaintiffs in favour of the defendant No. 1. 20. Much argument was advanced in the context of third paragraph of the communication dated 7th August, 2006. According to the defendant No. 1, it unambiguously refers to only the National Anthem which is the original work of defendant No. 1. 20. Much argument was advanced in the context of third paragraph of the communication dated 7th August, 2006. According to the defendant No. 1, it unambiguously refers to only the National Anthem which is the original work of defendant No. 1. On the other hand, according to the plaintiffs, it is not limited to the said work of defendant No. 1 but the film as a whole which was launched at Fame Cinemas on 24th June, 2006-which will include credits accompanying the work incorporated in terms of Clause 2.9 of the principal agreement. In my opinion, on analysing the communication dated 7th August, 2006 as a whole, there is substance in the stand taken on behalf of the plaintiffs that the agreement recorded in the said communication was in relation to the film as launched at Fame Cinemas on 24th June, 2006, which is inclusive of the work (National Anthem) the original work of the defendant No. 1, but also the credits accompanying the said work incorporated in terms of Clause 2.9 of the principal agreement. Indeed, it will not be a case of direct infringement of copyright if the credits were cut and not caused to be exhibited by defendant No. 1. Nevertheless, it will be a case of infringement of the copyright in the original work; because the plaintiffs allowed the defendant No. 1 or through others (assuming the agreement allows defendant to lend the agreement work to others) on condition that the same be displayed in the form of the film launched in Fame Cinemas on 24th June, 2007 without being edited or cut in any manner and completely. In other words, the permission in favour of defendant No. 1 was conditional one, for exhibition of the original work produced by him which was subject-matter of the suit agreement. The plaintiffs having become exclusive licensee in the theatrical rights in respect of said work, it is only the plaintiffs who can grant sub-license to any other person to exploit the said work, including to the defendant No. 1 - the producer of the said work, to exploit the said work on terms and conditions as the plaintiffs may desire. If those conditions are not fulfilled, it will nevertheless be a case of infringement of copyright in the original work which is subject-matter of principal agreement. 21. If those conditions are not fulfilled, it will nevertheless be a case of infringement of copyright in the original work which is subject-matter of principal agreement. 21. According to the defendant No. 1 the permission granted under communication dated 7th August, 2006 allowed the defendant No. 1 to permit third parties to exploit the said work. Prima facie, it is not possible to accept this contention. In the first place, the permission granted by the plaintiffs was to permit the defendant No. 1 to exhibit the film National Anthem "at their screens". This position is reinforced from the communication of defendant No. 1 itself, sent on 27th July, 2007. Inasmuch as, if the communication dated August 7, 2006 already permitted the defendant No. 1 to allow third parties to exploit the agreement work, there was no reason for the defendant No. 1 to once again write to the plaintiffs for permission in relation to the vocal group rendition for other theatres to run after processing the work and making the prints on their own and to run the film on their own on the eve of 60 years of Independence celebrations. The fact that the defendant No. 1 sent such communication presupposes that the parties were ad idem-that under the permission dated 7th August, 2006 the defendant No. 1 were allowed to display the "film as launched at Fame Cinemas" on 24th June, 2006 in the same version without being edited or cut and has to be played completely. What is significant is that in response to the request sent by defendant No. 1 on 27th July, 2007, the plaintiffs in clear terms informed the defendant No. 1 vide E-Mail dated 30th July, 2007 that they would permit the defendant No. 1 to allow other theatres to run the vocal rendition version but that could be done on clear understanding that the credits in the film are not deleted in any manner. 22. Be that as it may, by the same communication the defendant No. 1 was called upon to disclose whether third parties were going to pay for the usage of the film. The defendant No. 1 sent no reply to this communication dated 30th July, 2007. On the other hand, defendant No. 1 now asserts that this communication dated 30th July, 2007 was never received from the plaintiffs. This stand has been countered by the plaintiffs. The defendant No. 1 sent no reply to this communication dated 30th July, 2007. On the other hand, defendant No. 1 now asserts that this communication dated 30th July, 2007 was never received from the plaintiffs. This stand has been countered by the plaintiffs. The plaintiffs have relied on certificate issued by the Internet Service Provider to the effect that the said letter dated 30th July, 2007 was duly delivered to the defendant No. 1. Assuming that the plea of defendant No. 1 that the communication dated 30th July, 2007 sent by the plaintiffs was not received by it were to be accepted, it would necessarily follow that there was no permission in favour of the defendant No. 1 allowing them to lend the agreement work to third parties. In that case, it will be a clear breach of copyright as also contractual obligation. This is so because, the defendant No. 1 themselves made request to the plaintiffs for permission to authorise them to allow third parties to display the vocal group rendition in other theatres run by them. In other words, the communication of defendant No. 1 dated 27th July, 2007 is plain acceptance of the fact that the defendant No. 1 were aware that it could permit third parties to exploit the said work only after taking prior permission in writing from the plaintiffs. As per the provisions of Copyright Act, such sub-license or permission has to be in writing. It is inconceivable that the defendant No. 1 in absence of written permission from the plaintiffs, could legitimately proceed to authorise third parties to exploit the said work. 23. Accordingly, there is clear infringement of copyright of the plaintiffs in the said work. For, the plaintiffs have exclusive license in the said work under a subsisting agreement. During such period it was not open to the defendant No. 1 even if it was owner of the said work, to permit third parties to exploit the said work without prior written permission of the plaintiffs. Besides being a case of infringement of copyright, as is rightly contended on behalf of plaintiffs, it is also a case of breach of contractual obligation of the defendant No. 1 arising out of principal agreement dated 5th June, 2006 and in particular the agreement as recorded in communication dated 7th August, 2006. Besides being a case of infringement of copyright, as is rightly contended on behalf of plaintiffs, it is also a case of breach of contractual obligation of the defendant No. 1 arising out of principal agreement dated 5th June, 2006 and in particular the agreement as recorded in communication dated 7th August, 2006. It would have been a different matter if the defendant No. 1 were to permit third parties to exploit the said work accompanied by the credits incorporated in the film in terms of Clause 2.9 of the principal agreement which film was launched at Fame Cinemas on 24th June, 2006. 24. Considering all aspects of the matter, I am inclined to take a view that the plaintiffs have made out a strong prima facie case of not only infringement of copyright in respect of theatrical rights in the said work but also one of violation of contractual obligation by the defendant No. 1. 25. To get over this position, counsel for the defendant No. 1 would contend that the defendant No. 1 being a producer and owner of the said work, there was no question of infringement of copyright. Reliance was placed on Section 51 of the Act which provides as to when any person without a license granted by the owner of a copyright does anything, the exclusive right to do which is by the Act conferred upon the owner of the copyright, results in infringement of copyright. This argument clearly overlooks that merely because defendant No. 1 is the producer and owner of the said work, that cannot deprive the plaintiffs from asserting infringement of its copyright. In view of the agreement dated 5th June, 2006, all of Intellectual Property Rights in the said work having been passed on to the plaintiffs being exclusive licensee. So long as the said exclusive license was in force, no person and even the owner of the said work can be allowed to do any act so as to infringe the copyright of the plaintiffs on account of the exclusive license therein. 26. Counsel for defendant No. 1 would then refer to Section 54 of the Act. Indisputably, Section 54 of the Act forms part of Chapter-XII of the Act, which deals with the civil remedies available to even the exclusive licensee. 26. Counsel for defendant No. 1 would then refer to Section 54 of the Act. Indisputably, Section 54 of the Act forms part of Chapter-XII of the Act, which deals with the civil remedies available to even the exclusive licensee. The rights of the owner of the work envisaged under Chapter-XI of the Act cannot extricate the owner or permit him to infringe the rights of the exclusive licencee during the licence period. 27. Reliance was also placed on Section 57 of the Act to contend that the author of the work has special rights therein. According to the defendant No. 1, the plaintiffs who are only exclusive licensee, cannot proceed against defendant No. 1, who is the owner of the work. I find no substance in this argument. Section 54 of the Act postulates that for the purposes of Chapter-XII of the Act which deals with civil remedies, unless the context otherwise requires, the expression "Owner of Copyright" shall include the exclusive licensee. The present action has been brought before this Court by the exclusive licensee. By legal fiction the owner of the copyright includes an exclusive licensee who is competent to bring an action to enforce his civil remedies. The fact that the defendant No. 1 was the producer and owner of the said work, cannot be the basis to negate the rights guaranteed to the exclusive licensee under Chapter-XII of the Act. I find force in the argument of the plaintiffs that Section 57 merely restates the rights of the owner who is the author of a work. That provision, however, in no way affects the rights or remedies available to the exclusive licensee to proceed even against an owner/author of the work. 28. It was then contended on behalf of defendant No. 1 that the communication dated 7th August, 2006 will have to be treated as modification of the original agreement. If so, it was not open to the plaintiffs to unilaterally revoke the said agreement which was mutually agreed upon between them as there was no such authority in the plaintiffs. On the other hand, the license in favour of the defendant No. 1 would operate during the statutory period of five years and in the present case co-extensive with the principal agreement with reference to Section 19 of the Act. On the other hand, the license in favour of the defendant No. 1 would operate during the statutory period of five years and in the present case co-extensive with the principal agreement with reference to Section 19 of the Act. There is no difficulty in accepting the defendants argument that the communication dated 7th August, 2006 records the modification of the principal agreement in relation to the matters referred to therein. However, as is found earlier, the defendant No. 1 was permitted by the plaintiffs to exhibit the version of film launched at Fame Cinemas on 24th June, 2006 on condition that the same will be played completely and not to be edited or cut in any manner. In other words, defendant No. 1 or any person claiming through defendant No. 1 could have exhibited the said film only in the manner specified by the plaintiffs. Any act of commission or omission in excess or breach of such permission done by the defendant No. 1 and/or his agents or third parties will be without authority, resulting in infringement of copyright of the plaintiffs as also violation of contractual obligation between the plaintiffs and defendant No. 1. That being the situation, the plaintiffs revoked the license so granted to the defendant No. 1. The plaintiffs were free to exercise such option in law as the License was to be acted upon in conformity with the conditions specified by the plaintiffs. It is not the case of the defendant No. 1 that the license or permission granted to it was irrevocable license. At any rate, it is not open to argue that inspite of blatant breach of the license conditions, the licensor cannot take recourse to revocation of the license. Revocation of license on account of breach of license conditions is the implicit term agreed upon between both the sides. Thus understood, the argument of the defendant No. 1 that it was not open to revoke the arrangement agreed upon between the parties as recorded in the letter dated 7th August, 2006, is devoid of merits. 29. Counsel for defendant No. 1 relying on Section 57 of the Act would contend that even if exclusive license has been granted in favour of the plaintiffs in respect of said work, the plaintiffs being author of the work, shall continue to have right in the said work and competent to deal with the same. 29. Counsel for defendant No. 1 relying on Section 57 of the Act would contend that even if exclusive license has been granted in favour of the plaintiffs in respect of said work, the plaintiffs being author of the work, shall continue to have right in the said work and competent to deal with the same. This submission clearly overlooks the mandate of provisions of Copyright. Act. For, once the defendant No. 1, the author of the work, has created exclusive license in favour of the plaintiffs in the said work in respect of theatrical rights therein so as to exploit those rights across all theatres through out India for a term of five years from the date of execution of the agreement, till such agreement was subsisting the defendant No. 1 could not meddle with such rights of the plaintiffs, unless the plaintiffs were to permit defendant No. 1 to do so on such terms and conditions as the plaintiffs would specify. As found earlier, in the present case, the plaintiffs permitted the defendant No. 1 to deal with the said work of defendant No. 1 on condition that the same is exhibited along with credits associated with the said work in the film which was prepared by the plaintiffs as required by Clause 2.9 of the principal agreement. The defendant No. 1 could have dealt with the said work only in that manner. Dealing with the said work otherwise though defendant No. 1 is the author of the said work, will not absolve the defendant No. 1 from the mischief of infringement of the Copyright of the plaintiffs. At the same time, it will be a case of violation of contractual obligation by the defendant No. 1 of the conditions stipulated for the manner in which the said work ought to be displayed in other theatres. 30. Counsel for defendant No. 1 would then contend that the plaintiffs have not resorted to the procedure provided in Clause-4 of the principal agreement, before revocation of communications dated 30th July, 2007 and 7th August, 2006. In the first place, Clause-4 of the principal agreement deals with the procedure to terminate the principal agreement on account of breach of the agreement coupled with non rectification of the breach by the breaching party of the said breach within specified time. In the first place, Clause-4 of the principal agreement deals with the procedure to terminate the principal agreement on account of breach of the agreement coupled with non rectification of the breach by the breaching party of the said breach within specified time. In the present case, the plaintiffs have merely recalled the permission given to the defendant No. 1 to permit exploitation of the said work in other theatres. It is not the case of defendant No. 1 that they were inclined to abide by the conditions specified by the plaintiffs. On the other hand, the case of the defendant No. 1 is that third party cannot be forced to display the credits associated with the said work in the film processed by the plaintiffs and displayed in Fame Cinemas on 24th June, 2006. In this background, the plaintiffs were not required to take recourse to the modality provided in Clause-4 of the agreement. More so, in a case where the defendant No. 1 has already parted with the said work in favour of third parties, who in turn have exploited the same unauthorisedly. 31. Counsel for defendant No. 1 lastly contended that the suit cannot proceed in view of arbitration agreement between the parties in terms of Clause 5 of the principal agreement. Indeed, there is arbitration agreement between the plaintiffs and defendant No. 1. In the present case, however, the plaintiffs are required to approach this Court for the reliefs which will govern the third parties. Having regard to the fact situation of the present case, the principal expounded by the Apex Court in reported in Sukanya Holdings Pvt. Ltd. Vs. Jayesh H. Pandya and Another, AIR 2003 SC 2252 , will apply on all fours. As a result, the arbitration clause in the principal agreement will be of no avail and cannot be any impediment against the plaintiffs to proceed with the present action. Moreover, there is additional reason for which this plea will have to be stated to be rejected. The plaintiffs' counsel has rightly invited my attention to the fact that no such preliminary objection is raised in the reply filed by the defendant No. 1. In other words, the defendant No. 1 cannot take the plaintiffs by surprise by raising such plea across the bar. 32. The plaintiffs' counsel has rightly invited my attention to the fact that no such preliminary objection is raised in the reply filed by the defendant No. 1. In other words, the defendant No. 1 cannot take the plaintiffs by surprise by raising such plea across the bar. 32. Taking over all view of the matter, I have no hesitation in concluding that the plaintiffs have made out a strong prima facie case for grant of interim relief against the defendants not only on account of infringement of copyrights of the plaintiffs but also on account of infringement of contractual obligation by the defendants and in particular defendant No. 1. 33. The next question is about the balance of convenience. It cannot be disputed that the agreement operating in favour of the plaintiffs is valid only for five years from the date of execution. The agreement has been executed for consideration. As per the said agreement the plaintiffs are granted exclusive license in relation to the said work. The tenure of the agreement will expire in June 2011. If interim relief as prayed for was to be refused in spite of recording a finding in favour of the plaintiffs on the issue of prima facie case, that would cause serious and irreparable prejudice to the plaintiffs. Inasmuch as, even if the plaintiffs were to succeed in the suit, which obviously may not be decided before the term of agreement expires in June 2011, as per the present trend of pendency of the cases; and assuming that the suit was decided in time, it will not be possible for this Court to undo the violation and/or infringement as the term of license agreement will remain unchanged. The balance of convenience, in my opinion, is in favour of the plaintiffs. 34. Insofar as question of irreparable loss likely to be caused on account of grant of interim relief, even that will have to be answered in favour of the plaintiffs. The plaintiffs have entered into agreement with the defendant No. 1, for grant of exclusive license, for consideration. The plaintiffs have taken further steps to effectuate the rights flowing from such license. The plaintiffs have had to spend certain amounts for processing of the work so as to make it capable of exploitation. The plaintiffs have entered into agreement with the defendant No. 1, for grant of exclusive license, for consideration. The plaintiffs have taken further steps to effectuate the rights flowing from such license. The plaintiffs have had to spend certain amounts for processing of the work so as to make it capable of exploitation. Under the agreement, the plaintiffs are entitled to share the amounts to be received from third parties for permitting them to exploit the said work in terms of the agreement. The defendant No. 1, however, asserts that it has permitted third parties to exploit the said work without receiving any financial benefit. As per the agreement, the plaintiffs could not have entered into tie-up with the reputed brand for the purposes of off setting cost of processing without prior consent of defendant No. 1, implicit in that arrangement is that the defendant No. 1 if were to enter into any deal with the third party, to permit them to exploit the said work, could not be heard that they can do so without prior consent and intimation to the plaintiffs. The plaintiffs have not permitted the defendant No. 1 to allow exploitation of the said work in other theatres without remuneration. As a matter of fact, the defendant No. 1 in terms of Clause 3.1.6 of the principal agreement is obliged not to grant the theatrical rights in the said work to any one else during the term of the agreement and any enquiries received by it for theatrical distribution of the said work is required to be first communicated to the plaintiffs for discussion and/or negotiations. Whether the stand taken by the defendant No. 1 that it has not received any financial benefits out of the deal entered with the third parties in relation to the said work is genuine or not, the fact remains that on account of infringement of copyrights of the plaintiffs in the said work as also violation of the contractual obligation by the defendant No. 1, the plaintiffs are bound to suffer irreparable losses. 35. The next question is as to what interim relief can be granted to the plaintiffs during pendency of the suit. For the reasons recorded in the foregoing paras, I have no hesitation in continuing the ex parte ad interim relief already granted vide prayer Clause (a) of the motion. 35. The next question is as to what interim relief can be granted to the plaintiffs during pendency of the suit. For the reasons recorded in the foregoing paras, I have no hesitation in continuing the ex parte ad interim relief already granted vide prayer Clause (a) of the motion. I am also inclined to pass interim relief in terms of prayer Clause (b) of the motion having found that the defendants in particular defendant No. 1, could not be permitted to infringe the copyright of the plaintiffs in the said work. However, insofar as relief (c) is concerned, as the defendant No. 1 asserts that it has not received any financial benefit on account of permitting third parties to exploit the said work, at this stage it is not necessary to grant the relief in terms of prayer Clause (c). That aspect will have to be established at the trial. Accordingly, the motion will have to be made absolute in terms of prayer Clauses (a) and (b) which interim relief, however, shall be co-extensive with the term of agreement dated 5th June, 2006 i.e. five years from 5th June, 2006. 36. Accordingly, following order is passed: (a) The Notice of Motion is made absolute in terms of prayer Clauses (a) and (b) which interim relief will be co-extensive with the term of agreement dated 5th June, 2006 (i.e. five years from 5th June, 2006) with costs; (b) Notice of Motion is disposed of on the above terms; (c) It is made clear that the suit will proceed on its own merits in accordance with law uninfluenced by the observations made in the present decision, which is only for the purposes of considering grant of interim relief. In other words, all questions on merits are expressly kept open.