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2012 DIGILAW 350 (CAL)

Balaji Tele Films Ltd. v. Saregama India Ltd

2012-04-20

ASIM KUMAR MONDAL, SEN GUPTA

body2012
Judgment 1. THE Court :- Both the plaintiff and the first defendant have preferred two separate appeals against the common judgment and order dated 18th April, 2012 and in connection therewith separate interlocutory applications have been taken out in the appeal themselves. 2. EXTENSIVE argument was advanced by all the parties to both the appeals. Since the judgment and order impugned is common we think that one judgment would suffice to dispose of both the appeals. Learned Advocates appearing mutually waive service of notice of appeal. Therefore all formalities are dispensed with. 3. THERE will be orders in terms of prayer (a) of respective petitions. All undertakings are discharged. 4. APPEAL and the application are heard as the learned counsel suggests that it is no se of piecemeal hearing of appeal at a later stage since the appeal has been directed against an ad interim order. In view of this submission and suggestion we proceed to decide the appeals themselves. By the impugned judgment and order the learned Trial Judge has refused to grant any injunction as prayed for by the plaintiff, Saregama India Ltd. However, as an interim measure the learned Trial Judge directed that the first defendant viz., Balaji Tele Films Ltd. (hereinafter referred to as " Balaji") to deposit a sum of Rs. 2 crores with the Registrar, Original Side within 25th April, 2012 to the credit of the suit, and the Registrar will invest the said amount in short term deposit with a Nationalised Bank. Further order was passed that till the above deposit is not made the Balaji appellant will not operate any bank account without leaving an withdrawal balance of Rs. 2 crores. If such balance is unavailable in their bank account today the first defendant will not deal with any assets setting apart the assets belonging to them worth of Rs. 2 crores. Thereafter the learned Trial Judge has given direction for filing affidavit for deciding interlocutory application finally. 5. THE short case made out in the plaint is that the plaintiff, Saregama as a sole assignee of the copyright in respect of the musical works in the song of one old Hindi film "Mawali" and the song is subtitled "Ui Amma Ui Amma". The said song was composed by renowned Musician Mr. 5. THE short case made out in the plaint is that the plaintiff, Saregama as a sole assignee of the copyright in respect of the musical works in the song of one old Hindi film "Mawali" and the song is subtitled "Ui Amma Ui Amma". The said song was composed by renowned Musician Mr. Bapi Lahiri and in support of the aforesaid assignment of Copyright of the said song document has been annexed wherefrom it appears that adequate consideration in the shape of royalty is provided to the producer of the said film for all the songs with musical works for the aforesaid assignment. Thus assignment is not only for the said song "Ui Amma Ui Amma" but also other song. It is not disputed that Saregama is the sole assignee of the same by one of the respondents/defendants. It is alleged in the plaint that the defendant No.1 Balaji has produced the feature film titling "The Dirty Picture" wherein one of the songs has been synchronized with the lyric that starts with the words "Ooh La La Ooh La La". It is alleged that the music in the first song synchronized with the lyrics of second song as aforesaid has infringed musical works in the earlier song "Ui Amma Ui Amma". This song has been used in the aforesaid feature film "Dirty Picture". The SAREGAMA after having come to know of the release of the film with the said song has given a desist notice for the first time on 7th February, 2012 and thereafter correspondences went on till the month of April of this year and thereafter the present suit was filed on or about 7th April, 2012. In between February till the date of filing the suit there was adverse reaction or any action as it appears from the records at present. The suit is filed asking for perpetual injunction in suitable manner and also for decree of different nature, in relation to alleted infringement of Copyright. 6. IN connection therewith an interlocutory application was taken out for obtaining interim order of injunction. 7. WE noted what the learned Trial Judge has granted. 8. MR. Kapoor appearing for the appellant contends that no prima facie case going by the plaint and petition with accompanied document have been made out to get any relief as has been granted by the learned Trial Judge. 7. WE noted what the learned Trial Judge has granted. 8. MR. Kapoor appearing for the appellant contends that no prima facie case going by the plaint and petition with accompanied document have been made out to get any relief as has been granted by the learned Trial Judge. He submits that when learned Trial Judge has refused to grant order of injunction no relief to secure unascertained amount should have been granted. He further submits that prima facie findings of the learned Trial Judge of infringement of the alleged copy right of the plaintiff/respondent is totally wrong as it is based on hearing perception of the learned Trial Judge. He has drawn our attention to a document said to be a certificate issued by the composer of the first song and who happens to be the singer of the allegedly infringing second song and contended that when composer himself has certified that the musical works in the latter song is different from the earlier one the learned Trial Judge's perception should not be accepted hence the care of alleged infringement is demolished by the prima facie evidence. 9. HE contends further that it is not the case of the plaintiff that the entire song has been infringed, a portion of the second song has infringed musical works only. Going by the statements and averments in the petition the aforesaid order of the deposit of the enormous amount without having any basis whatsoever should not have been passed. He further submits that the learned Trial Judge has justly refused to pass any interim order as there has been gross delay in bringing action as the film has been released long time back and it is exhibited at various places. The audio cassettes have also been released and are sold in markets. No action was taken by the plaintiff till present one. According to him there should not be any condition as has been put by the learned Trial Judge. 10. HE also reminds us placing few authorities on this point that order furnishing security can be passed only when the pre condition as mentioned under Order 38 Rule 5 of the Civil Procedure Code is satisfied. 11. MR. Sudipto Sarkar learned Senior Advocate appearing for respondents 4 and 5 supports the argument of Mr. 10. HE also reminds us placing few authorities on this point that order furnishing security can be passed only when the pre condition as mentioned under Order 38 Rule 5 of the Civil Procedure Code is satisfied. 11. MR. Sudipto Sarkar learned Senior Advocate appearing for respondents 4 and 5 supports the argument of Mr. Kapoor, and in addition thereto he submits that Balaji has already assigned all copyright of the film including musical works to his client, and such film has been stated for telecasting on the satellite system on coming Sunday, and all lawful measures have been taken spending huge amount of money all over the world. Under these circumstances taking into consideration of balance of convenience and affectation of interest of large number of third parties order of injunction should not be justified at all. More so it will appear form the documents that anxiety of Saregama is to get the compensation on account of alleged infringement; actually they want to grant licence for use of the musical works of the first song in the said song for insignificant duration. It is further submitted that his client is not concerned with the alleged dispute between the plaintiff and Balaji. Mr. Chakraborty appearing for respondent no. 3 endorse the submission of Mr. Kapoor and Mr. Sarkar to protect his client's interest. 12. MR. P. Chatterjee, Sr. Advocate appearing for the plaintiff, and supporting his client's appeal, and contesting the appeal of Balaji, contends that learned Trial Judge after having found that there has been infringement of the copyright under Section 58 of the Copy Right Act, injunction should have been granted as a matter of course. While placing reliance on the decision of the Bombay High Court reported in 2009 (40) PTC (Bom.) (Ram Sampath Versus Rajesh Roshan and Ors.) contends that if a part of the musical works is infringed the infringement is complete to bring action under the Copy Right Act and also it is obligation of the Court to pass order of injunction. He also refers to a Supreme Court decision reported in 1994(2)SCC 448 (M/S. POWER CONTROL APPLIANCES AND OTHERS Versus SUMEET RESEARCH AND HOLDINGS) to contend that question of delay does not arise in the event the factum of infringement is established. He also refers to a Supreme Court decision reported in 1994(2)SCC 448 (M/S. POWER CONTROL APPLIANCES AND OTHERS Versus SUMEET RESEARCH AND HOLDINGS) to contend that question of delay does not arise in the event the factum of infringement is established. He, therefore, submits that what the learned Trial Judge did not do we should do by passing an order of injunction in this matter. 13. AFTER hearing the learned Counsel for the parties and after examining the materials it appears the point which has fallen for decision of the Court is as to whether we should grant order of injunction as prayed for by Mr. Chatterjee, which has been refused by the learned Trial Judge or not, and further we should delete the portion of the order requiring Mr. Kapoor's client to furnish security as mentioned in the said order. 14. IT appears from the impugned order that the learned Trial Judge before passing order has himself listened both the songs and came to conclusion upon His Lordship's own perception that the music in the second song in the film "Dirty Picture" is more or less same as in the earlier song. Thus the learned Trial Judge has come to prima facie finding that there has been infringement of musical works. 15. THE Learned Trial Judge has not, however, considered the question of delay or acquiescence. 16. WE have listened songs of both the films while hearing it is very difficult to express opinion at this stage there has been infringement for some times subtle variations in the notation of the song marks LOI of difference as it is very technical subject . It may be possible or may not be, and that can only be established after the affidavits are received. There is one more strong reason to conclude as above as we notice that Bapi Lahiri who was the composer of the first song and is a singer in the second song, has certified that musical works in the second song is different from the first one. Of course this document has come before us in the appeal and the plaintiff did not get any chance to controvert the same whether content of the document is correct or not, or for that matter whether it is the document of Bapi's or not. Of course this document has come before us in the appeal and the plaintiff did not get any chance to controvert the same whether content of the document is correct or not, or for that matter whether it is the document of Bapi's or not. But at this stage this Court has no option but to proceed with prima facie material. 17. AS against this document, we also notice in the records that an expert has opined and certified that there is a substantial similarity in the music of second song with that of first. While taking note of both the documents, the Court obviously accepts the document purporting to be certificate issued by the composer in the earlier music and also the singer of the present music. 18. AS such, at this stage, it is difficult for this court to come to prima facie conclusion that there has been an infringement in order to grant absolute order of injunction. Moreover, the question of delay cannot be overlooked lightly when it is noticed that this film along with the song was released long time back and it was within the knowledge of the plaintiff from the date of the release of the same, albeit no action was taken at the earliest. In the month of February 2012 a desist notice was served, and from February 2012 the plaintiff waited till April 2012 for action to be taken. We are of the view at the ad interim stage promptness of suitor is one of vital aspect. 19. WE fail to understand that during this period why the plaintiff did not take present action. No explanation is offered either. These are the factors for which an absolute order of injunction as suggested at this stage cannot be granted. It may or may not be possible after affidavits are filed. If during this period the defendant no.1 along with Super Cassettes and the defendants nos.4 and 5 are allowed to exploit without any tangible protest, we do not see any possible irreparable loss and injury likely to be suffered by the plaintiff for few days. 20. UNDER the circumstances, some measure has to be taken by this court. 21. If during this period the defendant no.1 along with Super Cassettes and the defendants nos.4 and 5 are allowed to exploit without any tangible protest, we do not see any possible irreparable loss and injury likely to be suffered by the plaintiff for few days. 20. UNDER the circumstances, some measure has to be taken by this court. 21. IT appears that already a substantial business has been done by the appellant-Balaji, and the defendants and each of them shall furnish and shall go on furnishing the earnings of all the business in connection with this film with its own Advocate-on-record in a sealed cover and to be kept by him and shall not be divulged to anyone except with the leave of the court. 22. IN addition thereto, we direct that the defendant no.1 shall deposit a sum of Rs.50 lakhs instead of Rs.2 crores as directed by the learned Trial Judge. The figure is reduced on the premise that the figure of Rs.2 crores as directed by the learned Trial Judge is highly disproportionate and based on no material. 23. IN case of failure to deposit Rs.50 lakhs and also to fulfil other conditions mentioned in the order of the learned Trial Judge with regard to such deposit, the order of injunction will be operative against each of the defendants forthwith as prayed for in terms of prayer (a) of the Notice of Motion before the learned trial Judge. 24. THE defendant no.1 shall intimate the advocate on record of the plaintiff in course of tomorrow without fail the name of the bank or banks wherein the aforesaid sum of Rs.50 lakhs shall be kept apart and this communication shall be supported by concerned bank(s) certificate soon thereafter. 25. IF communication is not done by tomorrow, then there shall not be any telecast as arranged by the defendant no.1, Balaji. 26. THIS order shall be carried out without waiting for the signed copy of the order since it is Friday and the learned advocates have heard the order. 27. PARTIES shall act on signed photocopy of operative portion of this order on the usual undertakings.