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2018 DIGILAW 1040 (MAD)

Mahendra P. Jain v. Jayanthi Kannappan

2018-03-13

M.SUNDAR

body2018
JUDGMENT : 1. Sixteen Tamil Cinematograph films constitute the nucleus of this suit and the 16 Tamil Cinematograph films as set out in the schedule to the plaint are as follows: S. No Name of Picture Star Cast 1 SHARADA S.S.R.VIJAYAKUMARI 2 MANIOSAI MUTHURAMAN, DEVIKA 3 MUDHAL THEDHI SIVAJI, PADMINI 4 CINEMA PATHIYAM KAMAL, JAYACHITRA 5 PATTNATHIL BOOTHAM JAISHANKAR K.R.VIJAYA 6 NIYAM KETTKIREN A.V.M RAJAN, PUSHPALATHA 7 PEN ENDRAL PENN GEMINI SAROJA DEVI 8 PANAM SIVAJI, PADMINI 9 SENTHAMARAI SIVAJI, PADMINI 10 KANAVUGAL KARPANAIGAL SARATH BABU, RANI PADMINI 11 ANANDHI S.S.R.VIJAYAKUMARI 12 MALAITTA MANGAI T.R.MAHALINGAM, PANDARIBAI 13 KAVALAI ILLADHA MANITHAN CHANDRA BABU 14 KARUPPU PANAM KANNADASAN BALAJI 15 THUNICHAL BANU CHANDAR, SUMAN 16 NILAGIRI EXPRESS JAISHANKAR, ASOKAN 2. The aforesaid Tamil Cinematograph films, which constitute the nucleus of this suit, are hereinafter collectively referred to as ‘Suit Films’ for the sake of convenience and clarity. 3. I deem it appropriate to set out the factual matrix as it unfurls from the suit file placed before me. 4. FACTUAL MATRIX 4(i) It is the admitted case of the plaintiff that one AL. S. Kannappan, spouse of the sole defendant, was the absolute owner of copyright in World Satellite Television Broadcasting Rights including cable TV and PAY TV rights in suit films. This ‘Satellite Television Broadcasting Rights including cable TV and PAY TV rights’ is hereinafter referred to as 'said rights' for the sake of brevity, convenience and clarity. 4(ii) It is the plaintiff’s case that Mr. AL.S. Kannappan assigned said rights in the suit films to plaintiff in and by an agreement dated 31.08.1996 for a period of 99 years. This agreement dated 31.08.1996 has been marked as Ex.P1. 4(iii) Consideration under Ex.P1 is Rs.1,50,000/-. 4(iv) To be noted, execution of Ex.P1 is not disputed by both sides, but what is in dispute is payment of the entire consideration. While it is the case of the defendant that only a lakh of rupees was paid at the time of execution of Ex.P1 and balance fifty thousand was not paid, plaintiff disputes the same and says that the entire consideration has been paid. I shall deal with this matter more elaborately under the caption 'Discussion' infra. While it is the case of the defendant that only a lakh of rupees was paid at the time of execution of Ex.P1 and balance fifty thousand was not paid, plaintiff disputes the same and says that the entire consideration has been paid. I shall deal with this matter more elaborately under the caption 'Discussion' infra. 4(v) It is plaintiff’s case that sometime in June 2005, one satellite TV channel by name Tamil Thirai attempted to exploit the rights of the suit films owing to which plaintiff sent a letter dated 02.06.2005 to the said channel informing them about the plaintiff’s rights. This letter dated 02.06.2005, sent by plaintiff to Tamil Thirai TV Channel, has been marked as Ex.P6. 4(vi) It is also the case of the plaintiff that on the strength of Ex.P1, plaintiff has assigned rights in favour of some TV channels such as Vijay TV (original Golden Eagle Communications) vide an agreement dated 11.09.1997 for a period of 10 years, Sun TV and Jaya TV on non-exclusive basis. It is also the case of the plaintiff that these TV Channels are exploiting the rights of the suit films in their respective channels. 4(vii) Mr. AL. S.Kannapan died on 17.01.2007 and the defendant who is Mr. AL.S. Kannapan’s spouse, started claiming that she has copyright in the suit films. 4(viii) It is the case of the plaintiff that the defendant approached some Tamil Satellite Television channels stating that she is the absolute owner of all rights including said rights in suit films. 4(ix) Plaintiff submits that they called upon the defendant to refrain from interfering with the plaintiff’s said rights in suit films, but in vein. 4(x) It is the further case of plaintiff that they came to know that some songs and clippings from some of the suit films were telecast in some other Tamil TV channels (other than the TV Channels to which plaintiff had assigned rights as aforesaid) namely Kalaignar TV and Mega TV. Plaintiff has averred in the plaint that it was reliably learnt that defendant has entered into some sought of arrangement with those channels regarding the suit films and it is the case of the plaintiff that this is infringement of their copyright in the suit films. Plaintiff has averred in the plaint that it was reliably learnt that defendant has entered into some sought of arrangement with those channels regarding the suit films and it is the case of the plaintiff that this is infringement of their copyright in the suit films. Plaintiff submits that it therefore became necessary to file the instant suit inter alia with a prayer for a declaration of plaintiff’s said rights in suit films for a period of 99 years from 31.08.1996 and for a permanent injunction restraining the defendant from interfering with the plaintiff’s said rights in suit films. 4(xi) Defendant entered appearance and filed a written statement. 4(xii)) It is the case of the defendant that her father-in-law one AL.Srinivasan had produced nearly 50 feature films since 1950 in Tamil, Telugu, Hindi, Malayalam and Kannada. It is also the case of the defendant that after the demise of her husband AL.S. Kannappan in 2007, she continues to hold copyrights in all the films produced by her father-in-law. 4(xiii) Intriguingly, there is no averment in the written statement that the copyright in suit films flow from defendant’s father-in-law to her spouse. However, as this has not been put in issue, I am not delving further into that aspect of the matter. 4(xiv) In the written statement, defendant has not disputed Ex.P1 agreement. However, as alluded to supra, it is the case of the defendant that the plaintiff had not paid the entire consideration of Rs.1,50,000/- under Ex.P1. It is the defendant’s specific case that the plaintiff had made only part payment of Rs.1,00,000/- and plaintiff ought to have paid the balance Rs.50,000/- on or before 30.11.1996, but did not honour the same. 4(xv) To be noted, plaintiff produced four receipts for Rs.10,000/- each, which have been marked as Exhibits P2, P3, P4 and P5 and said exhibits are dated 04.01.1999, 24.05.1999, 14.07.1999 and 29.05.1999 respectively. Defendant denies these receipts i.e., Exs.P2 to P5 as manipulated ones which have been gotten up for the purpose of this case. Defendant’s case on a demurrer is that even if these four exhibits are assumed to be true and correct, plaintiff still falls short of Rs.10,000/-. Defendant denies these receipts i.e., Exs.P2 to P5 as manipulated ones which have been gotten up for the purpose of this case. Defendant’s case on a demurrer is that even if these four exhibits are assumed to be true and correct, plaintiff still falls short of Rs.10,000/-. On this basis, it is the sheet anchor plea of defendant that Ex.P1 agreement had become infructuous, non-executable and no rights would flow to the plaintiff on the basis of Ex.P1, as the entire consideration has not been paid before 30.11.1996 as agreed. 4(xvi) However, without prejudice to the aforesaid contention that no rights would flow to the plaintiff under Ex.P1, defendant has gone on to say that the rights assigned to the plaintiff under Ex.P1 are not exclusive rights, but are non-exclusive rights. On this basis, defendant submits that she is entitled to deal with said rights in the suit films as the rights assigned under Ex.P1 are non-exclusive rights. To buttress her plea that the rights assigned under Ex.P1 can only be non-exclusive rights, defendant has pleaded that the quantum of Rs.1,50,000/- fixed for the suit films, which are as many as 16 feature films, itself would prove that it is non-exclusive rights. Besides the above, it is defendant’s case that the negatives for the suit films lie with three different laboratories, namely Vijaya, Jemini and Prasad. Defendant points out that no lab letters were given to the plaintiff and this itself would show that no exclusive rights have been given to the plaintiff. Defendant has also pleaded that her late husband sent a telegram to Tamil Thirai TV against exploitation of suit films on 13.06.2005 Defendant pleads that plaintiff has no right whatsoever and seeks dismissal of the suit. 5. DISCUSSION: 5(i) Factual matrix set out supra brings out the rival pleadings. 5(ii) On the aforesaid rival pleadings, five issues were framed by this Court on 12.04.2011 and they are as follows: “1.Whether the plaintiff has committed breach of the terms of the agreement dated 31.8.1996 as alleged by the defendant? 2. Whether the agreement dated 31.8.1996 has not come into effect as alleged by the defendant? 3. Whether the defendant has infringed the plaintiff's copyright in the suit film as alleged by the plaintiff? 4. Whether the plaintiff is entitled to the relief of declaration of copyright and permanent injunction in the suit films as prayed for? 5. 2. Whether the agreement dated 31.8.1996 has not come into effect as alleged by the defendant? 3. Whether the defendant has infringed the plaintiff's copyright in the suit film as alleged by the plaintiff? 4. Whether the plaintiff is entitled to the relief of declaration of copyright and permanent injunction in the suit films as prayed for? 5. To what other reliefs are the parties entitled to?” 5(iii) Parties went to trial on the above issues. One witness was examined on the side of the plaintiff. Likewise, only one witness was examined on the side of the defendant. On the plaintiff's side, one Uttamchand, Power of Attorney of plaintiff was examined as PW1 and six documents i.e., Exs.P1 to P6 were marked through him. On the defendant's side, defendant Jayanthi Kannappan examined herself as DW1 and three exhibits, namely Exs.D1 to D3 were marked through her. 5(iv) As already mentioned supra, Ex.P1 is an Assignment Deed dated 31.08.1996, which is the crux of this lis. Exs.P2 to P5 are receipts for Rs.10,000/- each, issued by defendant’s husband in favour of plaintiff, about which I have mentioned supra. Ex.P6 is the letter dated 02.06.2005 written by plaintiff to Tamil Thirai calling upon them to refrain from exploiting the suit films. This has also been alluded to supra. On the side of defendant all the three exhibits marked i.e, Exs.D1 to D3 are lab letters. Ex.D1 is from Prasad Film Laboratories. Ex.D2 is from Gemini pictures and Ex.D3 is from Vijaya Colour Laboratory. Exs.D1 to D3 have been marked to show that the suit films stand in the name of the defendant. 5(v)I have already set out the five issues that were framed in this suit. 5(vi) I deem it appropriate to examine issues 1 and 2 together. As would be evident from the issues, issues 1 and 2 turn heavily on whether full consideration was paid under Ex.P1 assignment dated 31.08.1996. As alluded to supra, there is no dispute between the parties that the total consideration under Ex.P1 is Rs.1,50,000/-. There is also no dispute between the parties that out of Rs.1,50,000/-, Rs.1,00,000/- has actually been paid by the plaintiff to the defendant’s late spouse. There is also no dispute between parties that balance fifty thousand ought to have been paid on or before 30.11.1996. What is in dispute is payment of balance fifty thousand. There is also no dispute between the parties that out of Rs.1,50,000/-, Rs.1,00,000/- has actually been paid by the plaintiff to the defendant’s late spouse. There is also no dispute between parties that balance fifty thousand ought to have been paid on or before 30.11.1996. What is in dispute is payment of balance fifty thousand. While it is the specific case of the plaintiff that they have actually paid the balance fifty thousand, defendant disputes the same. To find an answer to these two issues, it becomes necessary to examine Exs.P2 to P5 which are four receipts for Rs.10,000/- each. As alluded to supra, defendant has disputed these four exhibits. As mentioned supra, it is the case of the defendant that all the four exhibits are manipulated documents, which have been gotten up for the purpose of this suit. In this regard, it is to be noted that defendant, who examined herself as DW1, in her cross-examination on 26.08.2016, has clearly admitted that the signatures contained in Exs.P2 to P5 are her late husband’s signature. Relevant portion of the deposition runs as follows: “...............I admit that the receipts in Exs.P2, P3, P4 and P5 bears the signature of my husband........” 5(vii) However, defendant has gone on to say that she does not know whether her husband had issued Exs.P2 to P5 receipts to the plaintiff. This is also in the cross-examination of DW1 and the same reads as follows: “.... I do not know whether my husband had issued Ex.P2 for receipt of Rs.10,000/- on 04.01.1999. Ex.P3 for receipt of Rs.10,000/- on 24.05.1999 Ex.P4 for receipt of Rs.5,000/- on 14.07.1999 and Ex.P5 for receipt of Rs.15,000/- on 25.09.1999 to the plaintiff....” 5(viii) However, defendant has denied the suggestion that her husband received Rs.10,000/- by cash. Therefore, it comes to light that Exs.P2 to P5 are not forged or manufactured as defendant has clearly admitted that signatures contained therein are her husband's signature. This leaves us with the question of balance Rs.10,000/- paid by cash. This narrows down the question as to whether balance Rs.10,000/- was paid in cash by the plaintiff to the defendant or not. In this regard, other than the ipsi dixit assertion of plaintiff and defendant, there is nothing on record. To be noted, Mr. AL.S.Kannapan is no more. Therefore, I decided to examine Ex.P1 on the basis that only Rs.1,40,000/- was paid, instead of Rs.1,50,000/-. In this regard, other than the ipsi dixit assertion of plaintiff and defendant, there is nothing on record. To be noted, Mr. AL.S.Kannapan is no more. Therefore, I decided to examine Ex.P1 on the basis that only Rs.1,40,000/- was paid, instead of Rs.1,50,000/-. In other words, I examined Ex.P1 on the assumption that the plaintiff has fall in short by Rs.10,000/- in paying the entire consideration and Rs.40,000/- was paid after 30.11.1996. A perusal of the convanents in Ex.P1 clearly reveals that there is no default clause. There is no covanent or clause to the effect that no right or title will pass to the plaintiff (assignee under Ex.P1), if the entire balance consideration is not paid within the stipulated time limit. In other words, there is no default clause. In this regard, I deem it appropriate to extract Clause 5 of Ex.P1, which deals with consideration. The same runs as follows: “5.The consideration for the Assignment shall be a consolidated sum of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) and agreed to be paid as under: (a) Rs.1,00,000/- (Rupees One Lakh only) on signing of this agreement as follows: Rs.49,000/- by D.D.No.31428 dated 31.08.96 drawn on Bank of Madura Ltd., T.Nagar, Madras – 17. Rs.49,000/- by D.D No.334129 dated 31.08.96 Rs.2,000/- by D.D.No.314131 dated 31.08.96 (b) Rs.50,000/- (Rupees Fifty Thousand only) to be paid on or before 30.11.96.” 5(ix) There is no disagreement or dispute that there is no default clause. More importantly, there is nothing on record to show that defendant's late husband or the defendant claimed the balance sale consideration from the plaintiff. There is not even an assertion that the defendant or her late husband demanded the balance sale consideration. Under such circumstances, one has to go by the covanents in the agreement between the parties. 5(x) To be noted, the question as to whether this Rs.10,000/- was actually paid or not is one for which a clear answer is not available. I have to go only by the preponderance of probabilities theory and if one places reliance on preponderance of probabilities theory, in the light of the admission of DW1 (defendant) in the witness box in cross-examination that the signatures contained in Exs.P2 to P5 are her late husband Kannappan's signature, it is highly unlikely that the balance Rs.10,000/- would not have been paid by cash. However, if the same had not been paid, in the absence of a default clause, the plea of the defendant that Ex.P1 had become infructuous, unworkable and no rights have flown from defendant's husband to the plaintiff definitely cannot be sustained. Therefore, I answer issues 1 and 2 in favour of the plaintiff. In other words, my answer is, there is no breach by plaintiff qua Ex.P1 and I hold that Ex.P1 has, in fact, come into effect and is operating. 5(xi) This takes us to the other issues. From the 5 issues set out supra,it will be clear that issues 3 and 4 can be dealt with and answered together. Issues 3 and 4 turn heavily on only one question. That question is, whether rights assigned by defendant's late husband are exclusive rights in the suit films or a non-exclusive rights. If this question is answered, both issues 3 and 4 stand answered. Admittedly, a scrutiny of Ex.P1 reveals that there is no covanent or clause in Ex.P1 regarding the question as to whether the rights assigned under Ex.P1 are exclusive or non-exclusive. In other words, Ex.P1 is silent in this regard. As alluded to supra, defendant has pleaded that a lakh and fifty thousand for suit films, which are 16 in number, is too less a consideration and therefore, it has to necessarily be non-exclusive rights. However, the defendant has not let in evidence to show as to what is the correct rate which films akin to suit films were commanding at the relevant point of time. A mere statement that a lakh and fifty thousand is not adequate consideration for exclusive rights without any buttressing evidence in this regard does not help the defendant. I also examined Ex.P1 in the light of the submission made by learned counsel for plaintiff. A mere statement that a lakh and fifty thousand is not adequate consideration for exclusive rights without any buttressing evidence in this regard does not help the defendant. I also examined Ex.P1 in the light of the submission made by learned counsel for plaintiff. My attention was drawn to Clause 9 of Ex.P1, which reads as follows: “9.The Assignor hereby further assures the assignee that the Assignor has not entered into any agreement or contract nor has he assigned the rights granted to the Assignee under this agreement to any other party prior to this date and hereby undertakes not to enter into any further agreements also in this regard with third parties in derogation of the rights of the Assignee.” 5(xii) A perusal of Clause 9 in Ex.P1, according to the plaintiff's counsel, would demonstrate that the rights assigned are in fact non-exclusive rights. I have also noticed Clause 10 of Ex.P1, which reads as follows: 10. The Assignor further declares that he has not created any charge, lien or encumbrance or inhibition which has in any manner prevented him from conveying full rights under this agreement to the Assignee and it is on the basis of the aforesaid assurance and covenants that the Assignee has entered into this agreement. 5(xiii) Per contra, Mr.Anandan,learned counsel for defendant drew my attention to Covenant No.11, which reads as follows: “11. The Assignor hereby agrees to handover an irrevocable letter to the laboratory holding the picture and sound negatives of the said films authorising it to deliver to the assignee for the purpose of taking U matic or Disc or any other mode of communication at the cost of Assignee as and when required by the Assignee from time to time during the tenure of this agreement. In event of the negatives not being available, the Assignor shall at the cost of Assignee.” 5(xiv) A conjoint reading of the aforesaid three covenants leads one to the inference that the rights assigned under Ex.P1 are in fact exclusive rights. In event of the negatives not being available, the Assignor shall at the cost of Assignee.” 5(xiv) A conjoint reading of the aforesaid three covenants leads one to the inference that the rights assigned under Ex.P1 are in fact exclusive rights. The theory put forth by plaintiff that the lab letters could not be given by defendant's late spouse at the time of execution of Ex.P1 and he had requested plaintiff to collect prints from the market and that is the reason why the consideration was fixed at Rs.1,50,000/- comes across as a highly probable theory as the plaintiff has continuously dealt with suit films by assigning it to various TV Channels as alluded to supra after 1996. To be noted, the suit was filed only in 2008 more than a decade and nearly 2 years (22 years) later i.e, on 06.02.2008 to be precise. Exs.D1 to D3 do not help the defendant in this regard, because plaintiff has admittedly dealt with suit films. Therefore, I answer issues 3 and 4 also in favour of plaintiff by holding that defendant interference with plaintiff's said rights in suit films certainly tantamounts to infringement and I hold that the plaintiff is entitled to the declaratory relief as sought for qua said rights in suit films. 5(xv) Though issues as framed (except residuary issue) have been dealt with and answered, I deem it appropriate to deal with one issue that was raised by Mr.P.Anandan, learned counsel for the defendant in the hearing, at the time of arguments for the first time. Mr.P.Anandan, learned counsel for defendant, brought to my notice Section 19(4) of the Copyright Act, 1957. By placing reliance on Section 19(4) of the Copyright Act, 1957, it was argued by learned counsel for defendant that the plaintiff ought to have exploited the said rights in the suit films within one year from the date of assignment. It was argued that the plaintiff has not done so and therefore, by operation of Section 19(4) of the Copyright Act, plaintiff has lost rights, if any under Ex.P1. In other words, according to learned counsel for defendant, plaintiff should have started exploiting said rights in the suit films on or before 30.08.1997. According to the defendant, the plaintiff has not done so and therefore, he has lost the rights. In other words, according to learned counsel for defendant, plaintiff should have started exploiting said rights in the suit films on or before 30.08.1997. According to the defendant, the plaintiff has not done so and therefore, he has lost the rights. 5(xvi) On this issue being raised by the learned counsel for the defendant, Court wanted to know if there is any pleading in this regard. Learned counsel for defendant very fairly admitted that there is no pleading in this regard in the written statement. I have also perused the written statement and satisfied myself that there is no pleading in this regard in the written statement. It would also be evident from the issues extracted supra that no issue has been framed. Obviously no issue could have been framed, as there is no pleading in this regard. 5(xvii) The question as to whether an assignee has lost his/her rights by operation of Section 19(4) turns heavily on facts only. If the defendant had raised this in the written statement, the plaintiff could have been called upon to prove that the plaintiff had, in fact, exploited the said rights in suit films within one year from the date of assignment. When such a plea has never been raised and this has never been an issue, plaintiff cannot be expected to let in oral or documentary evidence in this regard. Such plea cannot be raised for the first time in arguments. It is not a pure and pristine question of law. It is a question of facts. Though the submission turns on Section 19(4) of the Copyright Act, 1957, it is actually a question of fact. The question is whether the plaintiff in his capacity as assignee has exercised the rights assigned to him under Ex.P1 within one year from the date of assignment i.e., within one year from 31.08.1996. In fact, not only it is not a pure question of law, to my mind it is a pure question of fact. If this fact is established one way or the other, Section 19(4) will operate or not operate. As the defendant has not chosen to raise this issue in the written statement or at any point of time earlier, defendant cannot be heard to raise this for the first time in arguments. If this fact is established one way or the other, Section 19(4) will operate or not operate. As the defendant has not chosen to raise this issue in the written statement or at any point of time earlier, defendant cannot be heard to raise this for the first time in arguments. However, Mr.C.Ramesh, learned counsel on record for plaintiff submits that even on facts, the plaintiff has actually exercised his rights in his capacity as an assignee under Ex.P1 within one year from the date of assignment and the plaintiff is not hit by Section 19(4) of the Copyright Act. Mr.Ramesh points out that if this plea had been raised in the written statement, an issue would have been framed and plaintiff would have let in evidence to show that plaintiff has, in fact, exploited its rights within one year from the date of assignment. As this was never put in issue, there was no occasion for the plaintiff to let in evidence in this regard. As this point was raised by Mr.P.Anandan, learned counsel for defendant, I examined the deposition. It emerges from a careful perusal of the typed-set that the lone witness on the plaintiff's side M.Uttamchand (PW1) has been cross-examined by Mr.P.Anandan on 3 different dates i.e., 11.10.2011, 21.12.2011 and 10.01.2012. On 11.10.2011 PW1 has been cross-examined by learned counsel for 20 minutes, on 21.12.2011 cross-examination has lasted for 10 minutes and on 10.01.2012, there has been cross-examination for 35 minutes. Effectively learned counsel for defendant Mr.Anandan has cross-examined PW1 for one hour and five minutes spread over three different days spanning three months. It is three months, because cross-examination commenced on 11.10.2011 and it was concluded on 10.01.2012. I find from the cross-examination that no question has been put to PW1 to the effect that plaintiff has not exercised its right as an assignee. 5(xviii) In fact, I find that even a suggestion has not been put to PW1. Therefore, not only is there complete absence of pleading, there is no cross-examination too. Not even a suggestion has been put to PW1 on this aspect of the matter. Owing to all these, I have no difficulty or hesitation in coming to the conclusion that Section 19(4) argument is not available to the defendant. Therefore, not only is there complete absence of pleading, there is no cross-examination too. Not even a suggestion has been put to PW1 on this aspect of the matter. Owing to all these, I have no difficulty or hesitation in coming to the conclusion that Section 19(4) argument is not available to the defendant. However, as alluded to supra, plaintiff's counsel disputes this and says that it is incorrect to say that plaintiff has not exercised its rights as an assignee within one year. With regard to this Section 19(4) of the Copyright Act, 1957, to my mind appears to be a submission in desperation. 5(xix) Issue No.5 is a residuary issue. I deal with costs under this issue. Considering the nature of the litigation and trajectory it has taken, in my opinion, it is a case where the parties will have to be left to bear their respective costs. 6. CONCLUSION 6(i) I answer all the issues in favour of plaintiff and hold against the defendant. 7. DECISION Owing to all that have been stated supra, the suit is decreed as prayed for and parties are left to bear their respective costs.