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2009 DIGILAW 398 (AP)

Shalimar Video Company v. Shalimar Enterprises

2009-06-23

L.NARASIMHA REDDY

body2009
JUDGMENT These two appeals are filed against the order dated 16-03-2004 passed by the learned Chief Judge, City Civil Court, Hyderabad, in I.A.No.628 of 2009 in O.S.No.86 of 2009. The appellants in those two appeals are defendants 1 and 2 in the suit, and the 1st respondent is the plaintiff. Respondents 3 and 4 mentioned in these appeals are defendants 3 and 4, and no relief was claimed against them. For the sake of convenience, the parties are referred to as arrayed in the suit. 2. Broadly stated the averments in the plaint are as under: The plaintiff is the proprietary concern carrying on the business of manufacturing, marketing and selling the DVDs and VCDs of popular Telugu and Hindi Films. The 2nd defendant procured exclusive licence to manufacture, market and sell the DVDs and VCDs, in respect of vast number of Telugu and Hindi films. Through a letter dated 19-11-2005, the 2nd defendant assigned the rights as regards 926 Telugu and Hindi films for a consideration of RS.9,50,000/-, and that the amount was paid through cheques of different dates. 3. The 2nd defendant is a partnership firm. The 1strespondent is a proprietary concern established by Mohd.Ashraf, who is the son of Managing Partner of the 2nd defendant. Without there being any licence of authorization, from the plaintiff, the 1st defendant started manufacturing, marketing and selling the VCDs of the films in respect of which, the rights were assigned in favour of the plaintiff. Reference is made to various arrangements said to have been made among the members of the family etc. 4. The suit was filed for (a) declaration, that the plaintiff is exclusively entitled for the rights mentioned above, in respect of 926 Telugu and Hindi films for a period of 20 years; (b) perpetual injunction against defendants 1 and 2, and anyone claiming through them, from manufacturing, marketing and selling the videos for the films, and (c) mandatory injunction, directing defendants 1 and 2 to deposit all the copies of DVDs and VCDs, in respect of the said films in their possession. 5. The plaintiff also filed I.A.No.628 of 2009 under Order 39 Rules 1 and 2 C.P.C., for temporary injunction, against defendants 1 and 2. Almost the entire contents of the plaint were repeated in the affidavit filed in support of the I.A. The defendants 1 and 2 opposed the application on several grounds. 5. The plaintiff also filed I.A.No.628 of 2009 under Order 39 Rules 1 and 2 C.P.C., for temporary injunction, against defendants 1 and 2. Almost the entire contents of the plaint were repeated in the affidavit filed in support of the I.A. The defendants 1 and 2 opposed the application on several grounds. They disputed the existence of any licence in favour of the plaintiff and asserted their exclusive rights. Though the order under appeal, the trial Court granted temporary injunction against the defendants. Hence, these appeals. 6. Sri D. Seshadri Naidu, and Sri B. Mayur Reddy, learned counsel for the appellants submit that the plaintiff admitted the exclusive right of the 2nd defendant, to manufacture, market and sell the DVDs and VCDs, in respect of 926 Telugu and Hindi films, and though the plaintiff claimed licence for them, from the 2nd defendant, no document, acceptable in law, was placed before the trial Court. He contends that the alleged letter of authorization, marked as EX.A-1 has no mention about the contract, much less, consideration, or period of the licence; and Ex.A-2, the alleged receipt, cannot improve the situation. He submits that there was neither prima facie case nor balance of convenience in favour of the plaintiff. 7. Sri Tulsi Raj Gokul, learned counsel for the 1st respondent, and Ms. Manjiri S. Ganu, learned counsel for the respondents 3 and 4, on the other hand, submit that the trial Court has undertaken extensive discussion, with reference to the pleadings and documentary evidence, and recorded a clear finding as to the existence of prima facie case and balance of convenience, in favour of the plaintiff. They contend that it was established beyond any pale of doubt that the plaintiff was exercising the rights for the past four years, and as soon as it noticed the infringement thereof, it has approached the trial Court, seeking comprehensive relief. 8. The appeals arise out of an application filed under Order 39 Rules 1 and 2 C.P.C. While the plaintiff is the proprietary concern, defendant No.2, from whom it is said to have derived rights, is a partnership firm. The parties are said to be family members, including the wife of the proprietor of the plaintiff. The plaintiff claimed rights on the strength of a letter of licence said to have been executed on 19-11-2005. The parties are said to be family members, including the wife of the proprietor of the plaintiff. The plaintiff claimed rights on the strength of a letter of licence said to have been executed on 19-11-2005. The very fact that it claimed rights through the 2nd defendant, discloses that the plaintiff admitted the exclusive right of the 2nd defendant for manufacturing or selling of the films. However, it was pleaded that an authorization/licence was given. The consideration for the licence in favour of the plaintiff is said to be Rs.9,50,000/-. Therefore, there must be prima facie evidence as to the existence of such licence, or authorization. 9. Whether one calls it authorization or licence, a transaction of such nature can give rise to the rights to another party, if only it is supported by consideration, and the terms thereof are clear and unambiguous. The consideration for the transaction must find place in that very document, if there exists one. The duration of the licence or authorization, being another important condition; is also supposed to be mentioned in it. The annexures, if any, can supplement the details of the transaction. Another aspect is that the licence or authorization must be granted by a person, who is vested with the authority. 10. In the instant case, the plaintiff entirely relied upon the authorization dated 19-11-2005, which was filed into the trial Court and it was marked as EX.A-1. 11. Before discussion is undertaken on merits, with reference to the facts of this case, a note needs to be made to the effect that, any observations herein are only in the context of examining the prima facie case, and are not at all final pronouncement on any issue, or controversy. 12. The plaintiff based its claim in the suit on an authorization letter dated 19-11-2005. It reads as under: "This is to certify that we the undersigned are the partners of M/s. Shalimar Video Company. We Officially Authorise M/s. Shalimar Enterprises situated at Shop No. 145, Babu Khan Estate, Basheer Bagh, Hyderabad to manufacture and market the VCD's and DVD's of our company". 13. From a perusal of this, it is evident that it is more a certification, than licence or authorization, by itself. We Officially Authorise M/s. Shalimar Enterprises situated at Shop No. 145, Babu Khan Estate, Basheer Bagh, Hyderabad to manufacture and market the VCD's and DVD's of our company". 13. From a perusal of this, it is evident that it is more a certification, than licence or authorization, by itself. Assuming that the authorization has flown from it, the letter is silent as to, (a) consideration for the authorization, (b) duration of the authorization, and (c) particulars of the DVDs and VCDs. Another important aspect is that, it is said to have been signed by different person, though the affairs of the 2nd defendant are administered by a Managing Partner. The plaintiff has also filed Schedule-A, which is said to be part of EX.A-1. Here also, a serious infirmity is noticed, viz., that there is no reference to Schedule in the body of the letter. Unless the annexure, or appendix, or schedule finds in a body of letter, licence or lease, it does not derive any strength, and cannot be taken into account. 14. The plaintiff made strenuous effort to inject life in to EX.A-1 by filing a receipt, said to have been issued for the transaction. When no mention is made to the consideration, much less to the manner of payment in Ex.A-1, the receipt marked as EX.A-2 would hardly be of any use. Both the documents are said to have been signed on the same date. However, the place at which, the dates are typed and the manner thereof, would throw some doubt. Further, though the signatories in Exs.A-1 and A-2 are said to be same, and they stated to have signed the documents on the same day, a comparison of the signatures with a naked eye, leaves much to be explained. 15. When the plaintiff claimed rights in respect of almost 1,000 films, it is supposed to make out a very strong case. The discussion undertaken in the preceding paragraph reveals that there is no prima facie case in favour of the plaintiff. As regards the balance of convenience, it needs to be mentioned that, in case the plaintiff is permitted to proceed with manufacturing, marketing and selling of DVDs and VCDs of large number of films, serious hardship would be caused to the defendants 1 and 2. 16. The C.M.As are accordingly allowed, and the impugned orders are set aside. As regards the balance of convenience, it needs to be mentioned that, in case the plaintiff is permitted to proceed with manufacturing, marketing and selling of DVDs and VCDs of large number of films, serious hardship would be caused to the defendants 1 and 2. 16. The C.M.As are accordingly allowed, and the impugned orders are set aside. The Trial Court shall endeavour to expedite the hearing and disposal of the suit. 17. There shall be no order as to costs.