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2014 DIGILAW 844 (DEL)

Phonographic Performance v. Spring Club

2014-03-11

SANJEEV SACHDEVA

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Judgment : Sanjeev Sachdeva, J. IA No. 3846/2011 (under Order VII Rule 11 CPC) 1. The Defendants No. 1 and 2 have, by the present application, sought rejection of the plaint under Order VII Rule 11 (a) & (d) of the Code of Civil Procedure (hereinafter referred to as the CPC). As per the applicants, the suit of the plaintiff is barred by law inasmuch as the plaintiff is neither residing nor carrying on business or works personally within the local limits of this Court. As per the applicants, the plaintiff only has a branch office within the territorial jurisdiction of this Court and none of the defendants are based or have any place of business within the territorial jurisdiction of this Court and the impugned acts for which the reliefs is sought have alleged to have taken place outside the territorial jurisdiction of this Court. The second ground pleaded is that no cause of action has ever arisen against the defendants and the plaint does not disclose cause of action against the Defendants. 2. It is the settled proposition of law that while deciding an application under Order VII Rule 11, it is only a plaint that has to be examined to ascertain whether a cause of action is disclosed or not and also whether the suit is prima facie barred by any law. The court has to look into the averments in the Plaint and the pleas and defence of the defendants in the Written Statement are not relevant for the purpose of deciding an application under Order VII Rule 11. (CHURCH OF CHRIST CHARITABLE TRUST AND EDUCATIONAL CHARITABLE SOCIETY VERSUS PONNIAMMAN EDUCATIONAL TRUST: 2012 (8) SCC 706 ). 3. The suit of the Plaintiff is for infringement of copyright under the Copyright Act, 1957 (hereinafter referred to as ‘the Act’). Jurisdiction to try a civil Suit is conferred on a court by Sections 15 to 20 of the CPC. Under Sections 15 to 20 of the CPC a civil suit can be filed at a place where the subject matter is situated, where the defendants reside or where the cause of action has arisen. Section 62 of the Act additionally confers jurisdiction on a Court within the local limit of which the plaintiff actually and voluntarily resides or carries on business or personally works for gain. 4. Section 62 of the Act additionally confers jurisdiction on a Court within the local limit of which the plaintiff actually and voluntarily resides or carries on business or personally works for gain. 4. The plaintiff, in the present suit, has pleaded that the plaintiff is a copyright society registered under Section 33(3) of the Copyright Act. The plaintiff has a branch office at Delhi within the territorial jurisdiction of this Court. In paragraph 30 of the plaint, the plaintiff has averred that this Court has the jurisdiction to entertain the suit as the branch office of the plaintiff is in Delhi from which it carries on business and from where the letters dated 14.12.2010 and 23.12.2010 had been issued to the defendants calling upon them to obtain the mandatory public performance licence. The plaintiff is stated to be carrying its business activity from its branch office in Delhi. The plaintiff has further stated that a substantial part of cause of action has arisen within the territorial jurisdiction of this Court. 5. A reading of the plaint shows that the stand of the plaintiff is that it has a branch office in Delhi from which it is carrying on its business. Further it is pleaded that a substantial part of cause of action has arisen in Delhi within the territorial jurisdiction of this Court. From reading of the plaint it cannot be said that the plaint does not satisfy the requirements of Section 62 of the Act. 6. For considering whether the plaint discloses a cause of action or not it is only the plaint that is to be considered. The defence raised by the applicants is not relevant for the purposes of considering whether the plaint is liable to be rejected for failure to disclose cause of action under Order VII Rule 11 of the CPC. What is relevant is whether the averments in the plaint are sufficient to confer jurisdiction on this Court or not. 7. The Plaintiff has averred that it has a branch office in Delhi from which it carries on its business and further that a part of a cause of action has arisen in Delhi within the local limits of this court. The averments in the plaint, prima facie, satisfy the requirements of both Section 62 of the Act and Section 20 of the CPC. The averments in the plaint, prima facie, satisfy the requirements of both Section 62 of the Act and Section 20 of the CPC. Thus, the plaint cannot be rejected on the ground of lack of territorial jurisdiction. 8. The plaintiff, in the plaint, has further contended that as the plaintiff is a registered copyright society registered under Section 33(3) of the Act, the plaintiff is permitted to carry on business in sound recordings. The Registration allows and entitles the plaintiff to administer its member’s sound recordings, charge and collect licence fees from the users of sound recordings. The royalties collected are then distributed to the owners of the copyright in the sound recordings. On account of the plaintiff being a registered copyright society, various owners of the sound recording works are members of the plaintiff and have granted exclusive authorization to the plaintiff to administer their rights in sound recording works in terms of Section 34 of the Act. 9. The suit was instituted on 28.12.2010 and the plaintiff along with the documents has filed a list of its members as on 03.12.2010. As per the plaintiff, the plaintiff is competent to administer the rights of its members i.e. the owners in the sound recording works by issuing licence or collection of licence fee. As per the plaintiff, the defendants are and would be communicating the sound recordings of the members of the plaintiff to the public for generating profit, an exclusive right of which vests only with the copyright owners. In the absence of obtaining a requisite licence under Section 30 of the Act, all the defendants would infringe the copyright in the works in terms of Section 51 of the Act. As per the plaintiff, every broadcasting organization, shops, departmental stores, showroom, restaurant, auditorium, airline, commercial establishments, club, disco, office, music concerts, etc. that play music without obtaining prior licence of the plaintiff impinge on the right of the plaintiff and its members. 10. The defendants are stated to be commercial establishments engaged in hospitality business and are going to host shows in their premises to celebrate New Year eve and other events with commercial and profit motive of selling tickets at large. As per the information of the plaintiff, in the said events, the defendants would be using the copyrighted sound recording of the members of the plaintiff. 11. As per the information of the plaintiff, in the said events, the defendants would be using the copyrighted sound recording of the members of the plaintiff. 11. The plaintiff had issued letters dated 14.12.2010 and 23.12.2010 calling upon the defendants to obtain the requisite licence. As per the plaintiff, the defendants have not complied with the statutory requirements of the copyright Act of acquiring a licence from the plaintiff nor have even responded to the letters issued by the plaintiff. As per the plaintiff, the defendants are organizing events in their respective premises where the music of the plaintiff would be played. 12. For deciding whether a plaint discloses a cause of action one has to presume that if the averments in the plaint are correct, is a cause of action to sue disclosed. (WHALE STATIONERY PRODUCTS LTD. VERSUS KORES C.E. GMBH; 2013 (205) DLT 99). In cases where even if the averments are presumed to be correct, the plaint does not disclose a cause of action, the plaint is liable to be rejected. But here the averments taken on their face value disclose a cause of action, then the veracity or the truthfulness of the averments is not to be gone into at the stage of deciding an application under Order VII rule 11 of the CPC. 13. The court must treat the averments made in the plaint as correct and true. Whether a plaint discloses a cause of action or not would have to be ascertained from the pleadings made in that behalf. While undertaking such an exercise the court is not required to conduct a detailed enquiry. All that the court is required to ascertain is, whether the allegations throw up a cause of action. So long as the plaint discloses a cause of action it is not liable to be rejected however weak the action is or is unlikely to succeed. (LIVERPOOL & LONDON S.P. & I. ASSOCIATION LTD. VERSUS M.V. SEA SUCCESS & & ANR. (2004) 9 SCC 512 ). 14. The Defendants have raised a plea that the Plaintiff being a copyright society is registered only for the purposes of administering license regime and recovery of fee and it cannot prosecute claims for infringement. 15. (LIVERPOOL & LONDON S.P. & I. ASSOCIATION LTD. VERSUS M.V. SEA SUCCESS & & ANR. (2004) 9 SCC 512 ). 14. The Defendants have raised a plea that the Plaintiff being a copyright society is registered only for the purposes of administering license regime and recovery of fee and it cannot prosecute claims for infringement. 15. The Division Bench of this Court in the case of PHONOGRAPHIC PERFORMANCE LIMITED VERSUS M/S LIZARD LOUNGE & OTHERS 2009 ILR (2) DELHI 726 has laid down as under: “27. We have no doubt in our mind that the very object of providing for such a Copyright Society was not only to administer the license regime and recovery of fee in a better manner but also to prosecute claims for infringement. To hold otherwise would be a half job done. Individual owners of Copyright find it difficult to enter into multiple license agreements and recover fee or enforce their rights. The creation of a Copyright Society is to serve all the three objectives without denuding the author of its own individual rights. The present cases are not one where the owner is contradicting the rights of the Copyright Society. In any case they are all aspects/matters of trial and the plaint could not have been thrown out at the threshold on the aforesaid ground.” 16. In view of the decision of the Division Bench in the case of LIZARD LOUNGE (SUPRA) that the object behind the statute for providing such a copyright society was to also prosecute claims for infringement. The creation of a copyright society is to serve the objective of overcoming the difficulty of the individual owners of copyright to enforce their rights. Even otherwise these are aspects of trial and the plaint cannot be rejected at the threshold. 17. The facts enumerated hereinabove are some of the facts extracted from the plaint. They clearly disclose a cause of action to sue in favour of the Plaintiff and against the defendants. The application is without any merit and is accordingly dismissed. 18. Nothing stated herein shall amount to an expression of opinion on merits of the dispute between the parties. 19. No costs.