Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 1826 (BOM)

Prince Pal Singh Tuli v. Apoorva Lakhia

2013-09-05

ANOOP V.MOHTA

body2013
JUDGMENT 1. In view of the urgency shown, the matter is taken on board at 3 pm. Heard by consent of parties finally. 2. “Zanjeer” is the film (The film) which is releasing tomorrow i.e. 06.09.2013. The film is already released in Middle East country. 3. The trial Judge, after considering the material placed on record, refused to grant ad interim relief on 04.09.2013. Therefore, this Appeal and Application for interim injunction to delete the song “Mumbai Ke Hero” from the film prior to release on Friday, 6.09.2013. The prayer is also made in the alternative, if Defendants unable to comply with such prayers prior to 6.09.2013, to restrain even from releasing the film on 6.09.2013. Prayer is also made against the Respondents to forthwith withdraw all materials in the form posters, banners, visual marketing through any media which shows the use of “motorbike”. 4. The Appellant, a resident of Nagpur, is a owner of a imported “motorbike” in question. The use of the “motorbike” in picturing the song by the Defendants without prior permission/consent, is the bone of contention. 5. Admittedly, even as per the averments, the motorbike was not in possession of the Appellant/plaintiff at least for four months. The vehicle was in custody of Defendant No.1 at Mumbai, who is Director of the film. Defendant No.2 is the production House. The reference is also made of one Mr. Mehra, who is admittedly not a party to the proceedings. Appellant, Defendant No.1 and Mr. Mehra are known to each other. At the relevant time, their relations were good and friendly. Therefore, for whatsoever may be the reason, the motorbike was kept with Defendant No.1. There is no averment or case that the motorbike was at any time stolen and/or misplaced. The positive case is that the motorbike was handed over by the Appellant for a joy ride to Defendant No.1. The concept of joy ride is well known. There are no averments to show that on which date and under what circumstances, the Plaintiff unable to take the possession of the motorbike immediately. Even no criminal complaint filed, at any point of time, probably because of good relations between the parties. There is nothing to show that any restriction whatsoever even orally intimated and/or informed to Respondent No.1, not to use the motorbike other than the alleged personal joy ride. Even no criminal complaint filed, at any point of time, probably because of good relations between the parties. There is nothing to show that any restriction whatsoever even orally intimated and/or informed to Respondent No.1, not to use the motorbike other than the alleged personal joy ride. The motorbike now in possession of the Appellant/plaintiff who is alleged to be sentimentally attached to it. 6. Under what circumstances, with direct and/or implied permission or without permission, the motorbike was used alleged to be by Respondents 1 and 2, is a matter of trial. Mere averments as well as supporting affidavit itself is not sufficient to adjudicate the case of Appellant/plaintiff to show that the motorbike was used without his consent/permission. No case of requirement of any written permission averred. The possession of motorbike remained with Defendant No.1 at Mumbai for four months is the area which just cannot be overlooked while considering the case of misuse of motorbike, as well as, the breach of alleged trust or friendship, if any. 7. The film industry and basically the producers and/or production incharge have agencies to bring in and/or put in various equipments and materials to be used for making a particular shot of film. The industry is definitely depend upon independent persons. This also includes the necessary machineries and/or vehicles required for the shooting. Under what circumstances and at whose instance the motorbike used by the Defendant as alleged is again a matter of trial. The various possibilities, in such circumstances and basically when we are dealing with the film industry and their requirements, through the agencies, apart from the goods relations between the parties at the relevant time that resulted into giving custody of sentimentally attached motorbike to Defendant No.1 for four months. 8. The Plaintiff's prayers in the Suit, basically the declaration that Defendants 1 and 2, without prior consent or permission of the Appellant/Plaintiff, used the motorbike in the movie need to be adjudicated first in the above background. The mandatory injunction and/or temporary injunction as sought on the basis of averments, in my view, is not made out at this stage. The Plaintiff's prayers in the Suit, basically the declaration that Defendants 1 and 2, without prior consent or permission of the Appellant/Plaintiff, used the motorbike in the movie need to be adjudicated first in the above background. The mandatory injunction and/or temporary injunction as sought on the basis of averments, in my view, is not made out at this stage. The foundation of the Suit if revolving around prior consent or permission even “of whatsoever nature” just cannot be considered to grant the interim relief so prayed in view of the admitted position on record that the Appellant/plaintiff was fully aware of alleged use of motorbike in the film, at least around July 2013. No such step was taken immediately. There are no specific dates on record about the date of use of motorbike and or its possession. By that time, the film/promos covering all medias have already been released the film clip/photographs and the Promo of the song. 9. Assuming for a moment that the Appellant came to know recently about the same and, therefore, filed the Suit on 2.09.2013 when the release date of the film is already published in all medias, 6.09.2013 is another factor which court need to consider while granting the interim relief/injunction so sought to delete the song and/or alternatively restrain the film to be released on the given date. The film, if released, already in the Middle East country itself means uncontrolled things and/or situation for the Defendants/producers. It is practically impossible to cut and/or interfere with the release of the movie/DVDs and/or related rights. The various agreements which required to be entered into by the Defendants before the release of movie covering the commercial aspect just cannot be overlooked. The question is not of deletion of one particular song and/or scene, the question is totality of the edited film in the market. To cut a song, as sought to be contended, merely because the Appellant sentimentally attached to the motorbike, which was used without his permission, in my view, in view of above undisputed position on record, just cannot be the reason to grant the interim relief so prayed. 10. The principle of prima facie case is not made out, unless the prayers as prayed for, are granted. Mere averments are not sufficient to accept the case of the Appellant/plaintiff, in the present facts and circumstances of the case. 10. The principle of prima facie case is not made out, unless the prayers as prayed for, are granted. Mere averments are not sufficient to accept the case of the Appellant/plaintiff, in the present facts and circumstances of the case. The balance of convenience, equity in no way supports the Appellant/plaintiff's averments and/or his case. The Court just cannot overlook commercial aspect of production of edited film at announced date and effects of release of songs in Promo and/or even latter point of time. In my view, it is difficult to dissect, in the present case at the instance of the Appellant, the song and/or the scene in question. This itself covers the aspect of irreparable loss and injury and the conduct. The Appellant, assuming for a moment, is got hurt because of his sentimentally attached motorbike has been used by the Defendants without his permission, that itself cannot be the reason to overlook the background so referred above including earlier friendship and so also the commercial interest of the Defendants and/or related parties, including other person/parties with whom all other subsequent agreements have already been entered into, based upon the edited films as proposed to be released and now already released in Middle East and by tomorrow in India also. The Suit and whatever rights flowing from it unless decided including the compensation, if any which the Appellant/Plaintiff reserve right to claim, is another facet which is also against the Appellant/plaintiff. 11. The scope of Appellate Court to consider the grant and/or rejection of ad interim relief is quite limited. Admittedly the Motion as well as Suit itself are pending. The learned Judge, based upon the submission so made, as well as, the material placed on record, by reasoned order, not granted any ad interim relief. Therefore also, for the reason so recorded above paras, I see there is no case made out by the Appellant/plaintiff for grant of ad-interim relief as prayed. 12. In the result, the Appeal from Order is dismissed. 13. Civil Application No. 24948 of 2013 is also disposed of accordingly. No costs. 14. The parties are at liberty to settle the matter. Parties to act on an authenticated copy of this order.