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2014 DIGILAW 574 (BOM)

RESERVE BANK OF INDIA v. SUDHIR DIWAN

2014-02-28

S.J.KATHAWALLA

body2014
JUDGMENT : S.J. KATHAWALLA, J. 1. The above Chamber Summons is taken out by the Defendant in the above Suit for the following relief: That this Hon'ble Court be pleased to direct the Plaintiff to produce all the interior design layouts of 15 or so general office floors (excluding 21st floor, 10th floor, Governor's floor, conference floors, canteen and mint floors), as existing on the date of Defendant's appointment or as refurbished subsequent to his appointment by RBI in December 2006. The Plaintiff-Reserve Bank of India is a body corporate constituted by the Reserve Bank of India Act, 1934. The Defendant - Sudhir Diwan is an Architect and an Interior Designer. 2. The Suit is filed by the Plaintiff, inter-alia, for a declaration that the Plaintiff is the owner of the copyright subsisting in the artistic works at Exhibits-B and G to the Plaint; and for a declaration that the acts of reproducing and/or communicating to the public the artistic works at Exhibits-B, G and J to the Plaint or substantial parts thereof in any material form, and printing, publishing or using the said artistic works and/or exercising any other rights in respect of the said works by the Plaintiff, does not amount to infringement of the alleged rights of the Defendant or anybody else. 3. The facts as narrated by the Plaintiff, are briefly set out hereunder: 3.1 The Central Office building of the Plaintiff is a 25 storied building. Some time prior to 2006, the Plaintiff decided to renovate various floors in its Central Office Building in a phased manner. The Defendant was awarded the contract for interior design and supervision work for renovation of the 21st floor of the said building vide appointment letter dated 4th December, 2006, followed by an Agreement dated 6th December, 2006. As per the said Agreement, it was the responsibility of the Defendant, inter-alia, to prepare the design, layout, architectural and working drawings, details of electrical/AC system and to finalize them in consultation with the user departments, including to incorporate the changes suggested by the users; and to supervise the proper execution of the work by the contractors and the sub-contractors who may be engaged from time to time, including checking measurements of work at site, checking contractors' bills and issuing certificates for payment. 3.2 Accordingly the Defendant prepared the draft floor plans, designs, drawings, details, etc. 3.2 Accordingly the Defendant prepared the draft floor plans, designs, drawings, details, etc. The Plaintiff gave their inputs to the Defendant on various aspects including technical and aesthetic details, pursuant to which the said floor plan, design, drawings, details, etc. were prepared and finalised under the direction and control of the Plaintiff. The said floor plan/interior layout of the 21st floor is annexed and marked as Exhibit-B to the Plaint. 3.3 In or about August, 2007, M/s. La-Kozy Furnishers and Interior Decorators Pvt. Ltd. was selected as the Contractor in respect of the renovation work of the 21st floor. 3.4 The Defendant was not working in a proper and efficient manner and had violated several clauses of the Agreement dated 6th December, 2006, because of which the Plaintiff vide its letter dated 5th October, 2007, terminated the services of the Defendant. The Defendant requested the Plaintiff to reconsider the termination. In view thereof, after discussions, as a goodwill gesture, the Plaintiff agreed to cancel the termination of the Defendant's services and reinstated the Defendant to complete the work as per the said Agreement dated 6th December, 2006. 3.5 In January, 2008, the Defendant got printed on flexi print (PVC print) a sketch/picture purportedly designed by him and got it framed and installed on one of the walls at the entrance of the 21st floor, through the Contractor M/s. La-Kozy. The said sketch is annexed and marked as Exhibit-G to the Plaint. For all the aforestated work carried out by M/s. La-Kozy, the Plaintiff settled all the bills. The fees payable to the Defendant in terms of the Agreement dated 6th December, 2006 viz. 5 per cent of the estimated/actual cost whichever is less, have been paid to the Defendant from time to time as can be seen from the statement annexed and marked as Exhibits I-1 and I-2 to the Plaint. 3.6 In or around December, 2007, the Plaintiff's team of in-house architects started independently preparing the floor plan/design for the 10th floor of the Central Office building. The final layout plan for the 10th floor was submitted to the Plaintiff by its in-house architect in April, 2008. The same is annexed and marked as Exhibit-J to the Plaint. 3.6 In or around December, 2007, the Plaintiff's team of in-house architects started independently preparing the floor plan/design for the 10th floor of the Central Office building. The final layout plan for the 10th floor was submitted to the Plaintiff by its in-house architect in April, 2008. The same is annexed and marked as Exhibit-J to the Plaint. In November, 2008, the Plaintiff was shocked to receive a notice dated 31st October, 2008 from the Solicitors of the Defendant alleging that the Defendant had prepared a unique layout and design for the Plaintiff in respect of the 21st floor of the Central Office building of the Plaintiff; that the Plaintiff was impressed with the said designs and that the Plaintiff had assured the Defendant similar work for the 10th floor of its Central Office building; and that the Plaintiff duplicated and adapted the Defendant's said design of the 21st floor on the 10th floor of the building through the Plaintiffs in-house Architect without reference to the Defendant or without the permission of the Defendant. The Defendant in the said notice also contended that he is the author of the design work in respect of the 21st floor and is the sole and exclusive owner of the copyright in respect of the said design. The Defendant also called upon the Plaintiff to cease and desist from using, adapting and reproducing the said design work without the express permission of the Defendant and to pay compensation of Rs. 6,10,000/- to the Defendant within two weeks from the date of the said notice. The Plaintiff vide its letter dated 14th November, 2008, replied to the said notice dated 31st October, 2008 received from the Advocate for the Defendant and denied the allegations made therein. Further correspondence ensued between the parties and the Defendant also filed police complaints against the Plaintiff. 3.7 The Plaintiff therefore filed the present Suit and sought the aforesaid reliefs as set out in paragraph 3 above, inter-alia, contending that in so far as the artistic works in dispute viz. the floor plan/design for the 21st floor and the picture, being Exhibits-B and G respectively to the Plaint are concerned, the same were prepared by the Defendant in the course of the Defendant's employment under the contract of service embodied in the aforesaid Agreement dated 6th December, 2006 and as envisaged under the Copyright Act, 1957. the floor plan/design for the 21st floor and the picture, being Exhibits-B and G respectively to the Plaint are concerned, the same were prepared by the Defendant in the course of the Defendant's employment under the contract of service embodied in the aforesaid Agreement dated 6th December, 2006 and as envisaged under the Copyright Act, 1957. The same were made at the instance of the Plaintiff and for valuable consideration which has already been paid by the Plaintiff to the Defendant. Moreover, the said floor plan/design was prepared by the Defendant under the direction and control of the officials of the Plaintiff. The Plaintiff is therefore the first true and rightful owner of the copyright subsisting in the said works. The Plaintiff has therefore sought reliefs in the present Suit which are set out in paragraph 3 above. 4. The Defendant has filed his Written Statement in the above Suit on 30th March, 2009 denying/disputing the allegations made in the plaint. In his Written Statement, the Defendant has alleged that the Plaintiff is proposing to utilise the Defendant's design of the 21st floor on the 5th floor as well. 5. On 26th February, 2013, the following issues were framed in the above Suit: (i) Whether the Plaintiff proves that it is the owner of the copyright in the artistic works at Exhibit B and G to the Plaint? (ii) Whether the Defendant proves that he is the owner of the copyright in the artistic works at Exhibit B and G to the Plaint? (iii) Whether the Defendant proves that the Plaintiff has infringed his copyright in Exhibit B and G to the Plaint? (iv) Whether the threats given by the Defend ant vide his notice dated 29th and or 31st October, 2008 were unjustifiable and groundless? (v) What order? What relief? By the said order, the Plaintiff was directed to file its affidavit of evidence, affidavit of documents and the compilation of documents on or before 1st April, 2013. The Defendant was also directed to file his affidavit of documents and the compilation of documents on or before 1st April, 2013, which order has been complied with. 6. Thereafter, the above Chamber Summons is taken out by the Defendant on 19th July, 2013 seeking directions against the Plaintiff to produce all the interior design layouts of about 15 floors of the Central Office building. 6. Thereafter, the above Chamber Summons is taken out by the Defendant on 19th July, 2013 seeking directions against the Plaintiff to produce all the interior design layouts of about 15 floors of the Central Office building. In paragraph 9 of the affidavit in support of the Chamber Summons it is alleged by the Defendant that in the subsequent years post 2007, the new design of the Defendant in respect of the 21st floor was adopted by the Plaintiff through their in-house architect on the 10th and 5th floors of the Central Office building of the Plaintiff. It is submitted by the Defendant in his affidavit in support of the Chamber Summons that it is essential for the Defendant to get the interior design layouts of about 15 floors of the Plaintiffs Central Office building as existing on the date of the Defendant's appointment or as refurbished subsequent to his appointment in December 2006, so that the Defendant is able to explain to this Court “through his evidence and his witnesses, the substantial differences in the interior design of the 21st floor, as against the interiors designed before the 21st floor was designed and subsequently, particularly as no interior floor layouts done earlier by the Plaintiff were given to the Defendant for comparison, in the process of designing the 21st floor.” 7. The Learned Advocate appearing for the Plaintiff has opposed the Chamber Summons on the ground that the subject matter of the Suit does not pertain to any of the 15 floors, the layout plans of which are sought by the Defendant from the Plaintiff in the present Chamber Summons. It is submitted that the reliefs in the Suit pertain only to Exhibits-B, G and J to the Plaint i.e. interior layout of the 21st floor, the sketch/picture purportedly designed by the Defendant which has been framed and installed on one of the walls at the entrance of the 21st floor and the proposed renovation plan of the 10th floor of the Central Office building, and not to any other portion of the Central Office building of the Plaintiff. The issues framed by the Court also pertain only to Exhibits-B and G to the Plaint. The issues framed by the Court also pertain only to Exhibits-B and G to the Plaint. The Defendant has not filed any Suit or counter claim against the Plaintiff and therefore the Defendant is not entitled to seek any layout plans of any of the other floors of the Central Office building of the Plaintiff. 8. Relying on the decision of this Court in the case of The 20Th Century-fox Corp. (India) (P) Ltd. vs. F.H. Lala and Others, (1974) 2 LLJ 156 and the decision in the case of The Central Bank of India Limited vs. P.D. Shamdasani, AIR 1938 Bom. 33, the Learned Advocate appearing for the Plaintiff has submitted that the Defendant is only embarking on a fishing or roving enquiry in the hope that some material would come to hand, on the basis of which he can set out his case. It is also submitted that the Defendant is making an attempt to delay the hearing of the Suit and has therefore taken out the present Chamber Summons which deserves to be dismissed with costs. 9. I have perused the Chamber Summons, Affidavit in support thereto, the reply filed by the Plaintiff and the rejoinder filed on behalf of the Defendant. I have also considered the (oral) submissions of the Parties and have further considered the case law relied upon by the Advocate for the Plaintiff. 10. As correctly submitted by the Plaintiff, the subject matter of the Suit pertains only to Exhibits-B, G and J to the Plaint i.e. interior design and layout of the 21st floor of the Central Office building of the Reserve Bank of India, a sketch/picture printed on a flexi print (PVC Print), framed and installed at one of the walls at the entrance of the 21st floor of the Central Building of the Reserve Bank of India and the proposed renovation plan of the 10th floor of the Central Building of the Reserve Bank of India respectively. The prayers in the Suit do not pertain to any of the other floors of the Central Office building of the Reserve Bank of India. The Defendant has filed his Written Statement in the above Suit in this Court as far back as on 30th March, 2009, wherein he has alleged that the Plaintiff is proposing to utilise the Defendant's design for the 21st floor on the 5th floor as well. The Defendant has filed his Written Statement in the above Suit in this Court as far back as on 30th March, 2009, wherein he has alleged that the Plaintiff is proposing to utilise the Defendant's design for the 21st floor on the 5th floor as well. Despite that, the Defendant has neither filed any suit against the Plaintiff, nor has the Defendant filed any counter claim in the above Suit. Again, the issues framed in the above Suit, which are set out in paragraph 6 hereinabove on 26th February, 2013, were confined only to Exhibits-B and G to the Plaint. The Defendant has in July, 2013, filed the above Chamber Summons seeking the layout plans of about 15 floors of the Central Office building of the Reserve Bank of India, though the other floors of the said building are in no way concerned with the notice issued to the Plaintiff by the Defendant, or with the subject matter of the present Suit or with the issues which have already been framed and pending determination in the present Suit. If the Defendant has any grievance qua the other floors of the Central Office building of the Reserve Bank of India, the Defendant is always at liberty to file his independent proceedings qua the same, which if filed would be decided on its own merits. In view thereof, the present Chamber Summons is nothing but an attempt on the part of the Defendant to embark on a fishing or roving enquiry in order to gather some evidence from the Plaintiff on the basis of which the Defendant would base his defence. 11. In the case of 20th Century Fox Corporation vs. F.H. Lala (supra), the Division Bench of this Court has, inter-alia, observed thus: 12. Now, in our view, it is settled position in law that a party to any litigation cannot be permitted to embark on a fishing or roving inquiry in the hope that some material will come to hand on the basis of which he can set out his case. We do not wish to say that in a proper case, after the necessary material is on record, the Tribunal cannot order production of relevant documents which would be necessary for the purpose of the adjudication. We do not wish to say that in a proper case, after the necessary material is on record, the Tribunal cannot order production of relevant documents which would be necessary for the purpose of the adjudication. But before that can be done, it would be the duty of the party asking for production of documents to make out a case why it would be necessary for certain documents to be produced. 13. In the instant case it is obvious from a reading of the application for production of documents that apart from a vague and a somewhat peremptory statement that in the opinion of the union it would be necessary that the documents referred to be produced, there is no material on which any Tribunal could validly order production of the documents referred to. What is perhaps more illuminating is that the union has stated that the production of these documents will “throw sufficient light on the various aspects of the issues involved.” Mr. Sowani also in his able arguments sought to persuade us that the company should provide some enlightenment to the union so that a proper case was made. We are afraid that production of documents and inspection thereof cannot be permitted for such a purpose. 12. This Court has in the case of The Central Bank of India Limited vs. P.D. Shamdasani (supra) again inter-alia observed as follows: The legislature has endowed the Courts with wide powers of ordering production of documents necessary for the determination of matters before the Courts, and for directing inspection of those documents; but it must always be borne in mind that an order directing a person to produce or give inspection of his books in a dispute to which he is not a party involves a serious inroad upon his normal rights as a citizen, and the Courts have always set their faces against giving anything in the nature of a roving or fishing commission to inspect documents. The Court does not allow a man to say, “I make such and such a charge against my opponent, and now if you will let me look into his books I will see whether I can find some evidence to support it.” If the Courts were to make orders for inspection of books merely on an allegation that certain facts are true, the practice would be open to very serious abuse, and the Court might easily become something of a menace to a mercantile community. It would be open to an unscrupulous person to make a false charge, possibly against a business rival, and then get inspection of that business rival's books. In saying that I am not suggesting that the complainant in this case is making a false charge. I am not at present in a position to express any opinion upon that, but in framing rules for its own guidance the Court cannot ignore the fact that a good many unscrupulous people exist, and that false complaints are not uncommon, notwithstanding the penalty which may be invoked against a man, who presents a false complaint, u/s 211 of the Indian Penal Code. In my opinion it is not the practice of the Court to allow inspection of bankers' books under the Bankers' Books Evidence Act unless a prima facie case is made out for thinking that there is some matter on which the books of the Bank are bound to be relevant. 13. It is therefore a settled position in law that a party to any litigation cannot be permitted to embark on a fishing or roving inquiry in the hope that some material will come to hand on the basis of which he can set out a case, unless the party asking for production of the documents establishes why it would be necessary for production of such documents. In the present case, the Defendant has not made out any case in support of his demand as to why the Plaintiff should produce the layout plans of about 15 floors of the Central Office building of the Plaintiff, even though the layouts of the said floors do not form the subject matter of the present Suit. In the present case, the Defendant has not made out any case in support of his demand as to why the Plaintiff should produce the layout plans of about 15 floors of the Central Office building of the Plaintiff, even though the layouts of the said floors do not form the subject matter of the present Suit. If the Defendant wants to allege that the Plaintiff is infringing its copyright by using his design for renovating its other floors (which are not the subject matter of the Suit), the Defendant has to file his own proceedings against the Plaintiff and establish his allegations against the Plaintiff. The Plaintiff is therefore correct in submitting that the documents in respect of which production is sought by the Defendant through the present Chamber Summons are irrelevant and fall beyond the scope of the present Suit; and that the Defendant has prayed for production of the said documents merely as and by way of a roving and fishing enquiry and to further delay the matter. In view therefore, the above Chamber Summons is dismissed with costs.