JUDGMENT : (Prayer: This Application is filed under Order XIV Rule 8 of Original Side Rules read with Order XXXIX Rule 1 & 2 and under Sections 151 of CPC prayed to grant an order of ad interim injunction, restraining the respondents/defendants, their men, agents, employees or anyone acting through or under them, from proceeding with the production, promotion or release of any film based on the script annexed herewith as Plaint Document No.3, under the title “''Zindabad'” or any other title, during the pendency of the present suit proceedings.) 1. The suit is filed by the agreement holder against the script writer/director the 1st defendant seeking permanent injunction from producing, promoting, directing or releasing any film based on the script annexed to the Plaint under the title 'Zindabad' or any other title, with any other production house other than the plaintiff and to direct specific performance of the agreement dated 22.11.2018 directing the 1st defendant to hand over all copies of the script, annexed to the Plaint and to direct the movie titled “''Zindabad'” at the instance of the plaintiff as per the terms and condition stipulated in the agreement and to direct the 1st defendant to pay Rs.1,00,00,000/- as damages to the plaintiff. 2. The case of the plaintiff is that, they are reputed film production house who had entered into an agreement with the 1st defendant for script writing and directing a movie under the title 'Zindabad'. The 1st defendant and the plaintiff are old acquaintance. Earlier, the 1st defendant has directed films for the plaintiff's company. It was agreed by the 1st defendant to develop the script narrated to the plaintiff along with one Aadhi Pinisetty, who supposed to play a leading role in the said proposed movie. The film direction agreement was entered on 22.11.2018. Rs.50,000/- was advanced to the 1st defendant for developing the script. The 1st defendant agreed to provide his exclusive services as the writer and director. Having agreed to develop the script and direct the movie for the plaintiff with Aadhi Pinisetty as the hero, the 1st defendant had failed to honour the terms of the agreement with an intention to work on the script of another horror movie and direct the same simultaneously. Having agreed to develop the script and direct the movie for the plaintiff with Aadhi Pinisetty as the hero, the 1st defendant had failed to honour the terms of the agreement with an intention to work on the script of another horror movie and direct the same simultaneously. The 1st defendant persuaded to the plaintiff to produce the next horror movie also or allow him to find out third party producer for the next horror movie casting Aadhi Pinisetty in the leading role. 3. Considering the good relationship with the 1st defendant and considering the idea promoted by the 1st defendant by mutual understanding by both of them, the plaintiff referred the 1st defendant to one Pawankumar a common friend who was a producer under the banner Srinivasaa Silver Screen. Pawankumar who was not only interested to be co-producer for 'Zindabad' and also interested to pursue the horror movie script. During the period from December 2018 to May 2019, the 1st defendant continued to work on the film 'Zindabad' availing the facility provided by the plaintiff as per the agreement. Based on the assurance given by the 1st defendant, the plaintiff commenced the pre-production work of the film by setting up a production team in his office to handle the logistic of the film, location, script supervision and casting etc. The attempt of the 1st defendant to fetch a producer for horror film did not fructify. However, he demanded payment for developing the horror film script and at his request, the plaintiff has paid Rs.1,00,000/- for the expense of the horror film. 4. On 16.06.2019, the 1st defendant promised that the script for the film 'Zindabad' along with the horror movie script will be ready for final narration within 10 days. On 20.06.2019, the 1st defendant requested for some more time to complete the script for 'Zindabad'. Hence, the narration date was shifted to 04.07.2019. On 03.07.2019, the 1st defendant informed the plaintiff that the script was ready. However, he sought for further extension of time for final narration. Thereafter, 08.07.2019 was fixed as a date for final narration. Due to medical condition of the Managing Director of the plaintiff's company, the final narration took place on 11.07.2019. The next meeting between the plaintiff and the 1st defendant held on 24.07.2019. The 1st defendant updated the plaintiff on the development of both scripts. Thereafter, 08.07.2019 was fixed as a date for final narration. Due to medical condition of the Managing Director of the plaintiff's company, the final narration took place on 11.07.2019. The next meeting between the plaintiff and the 1st defendant held on 24.07.2019. The 1st defendant updated the plaintiff on the development of both scripts. After the plaintiff made clear that they are interested to proceed with the production of 'Zindabad' alone, the 1st defendant kept avoiding the plaintiff's call. When the Executive producer of the plaintiff's company met the 1st defendant, he informed him that he wanted to direct the horror movie 'Shabdam' first before directing the 'Zindabad'. In violation of the terms of the agreement, the 1st defendant insisted that the plaintiff should agree to produce both the movies 'Zindabad' and 'Shabdam'. When the plaintiff expressed his disinclination to produce the horror movie 'Shabdam', the 1st defendant signed to direct the film 'Zindabad' with another production house namely the 2nd defendant contrary to the agreement with the plaintiff. The 1st defendant had abandoned the plaintiff and tied up with the 2nd defendant, since they were ready to produce both the films 'Zindabad' and 'Shabdam'. 5. The plaintiff approached the representatives of the 2nd defendant's production house on 02.10.2019 to attempt amicable settlement of the said issue. The 2nd defendant's representatives acknowledged the breach committed by the 1st defendant and assured that they will not proceed with their project. Contrarily, the 1st defendant has issued a letter dated 18.10.2019 alleging that, on account of the delay on the part of the plaintiff, he would like to mutually terminate the agreement and ready to repay Rs.4,80,000/- towards expenses incurred for 'Zindabad'. 6. There was no delay on account of the plaintiff, as alleged in the termination letter and whatever the delay caused was due to the 1st defendant who delayed the finalisation of 'Zindabad' script and working on another project simultaneously. Now the script being ready, the plaintiff is ready to continue production of the film. Being the owners of the copyright of the said film under Section 17(b) of the Copy Right Act, the 1st defendant attempt to infringe the right and agreed to direct the said script for another production house. In any event on account of the Section 18 of the Copy Right Act, the exclusive right of the said script vests with the plaintiff. 7. In any event on account of the Section 18 of the Copy Right Act, the exclusive right of the said script vests with the plaintiff. 7. Since mediation of South Indian Film Chamber of Commerce failed, after exchange of notice suit is filed for the following relief:- a. Permanent injunction restraining the defendants, their servants, agents, representatives or any other person claiming under/through them, from producing, promoting, directing or releasing any film based on the script annexed herewith as plaint document No.3, under the title “ZINDABAD” or any other title, with any other production house other than the plaintiff, as per the terms and conditions stipulated in the agreement dated 22.11.2018, or from acting in derogation of the agreement dated 22.11.2018 in any manner whatsoever. b. Direct specific performance of the agreement dated 22.11.2018, directing the 1st defendant to hand over all copies of the script, annexed herewith as plaint Document No.3, to the plaintiff and to direct the move titled “ZINDABAD”, based on the script developed by the 1st defendant at the instance of the plaintiff as per the terms and conditions. c. Direct the defendants to pay Rs.1,00,00,000/- (Rupees one crore only) as damages to the plaintiffs. d. The defendants herein may be ordered to bear the costs of the suit. 8. O.A.No.16 of 2021 filed for an order of ad interim injunction, restraining the respondents, defendants, their men, agents, employees or anyone acting through or under them, from proceeding with the production, promotion or release of any film based on the script annexed herewith as plaint Document No.3, under the title “ZINDABAD” or any other title, during the pendency of the present suit proceedings, pending disposal of the suit? 9. The application in A.No.1520 of 2021 is filed seeking permission to fix an early date for the hearing on O.A.No.16 of 2021. After notice, the 1st defendant entered appearance on 01.04.2021, taking note of the undertaking given by the defendant counsel that the defendant will not release the movie, interim injunction restraining the respondents/defendants from dealing with the movie in any manner whatsoever was granted. This Court also directed the respondents/defendants if any agreement entered with third parties, to file copy of the agreement. Adjourned the matter for further hearing. 10. This Court also directed the respondents/defendants if any agreement entered with third parties, to file copy of the agreement. Adjourned the matter for further hearing. 10. Today, the learned senior counsel appearing for the applicant/plaintiff submitted that the undisputed fact in the present case is that the plaintiff and the 1st defendant entered into an agreement on 22.11.2018 in respect of developing script for the film titled 'Zindabad' and to direct the same with Aadhi Pinisetty in the leading role. Advance was paid to the plaintiff to work on the script as per the contract. As per the terms of the agreement, the plaintiff's company also engaged the 1st defendant to direct a feature film tentatively titled 'Zindabad'. On the date of agreement, the script for the film was not ready. The 1st defendant has already directed four films and this was his 5th film. So, in the agreement it is mentioned that the Director/1st defendant agrees to make his 5th feature film for the above mentioned plaintiff's company only and there is a negative covenant which reads as below: “If he chooses to make his 5th feature film with anyone else other than the above mentioned company, then he needs to take a written consent from the Managing Director of the company.” 11. Therefore, the learned senior counsel appearing for the applicant/plaintiff submitted that when the plaintiff has always remain ready to produce the said movie, the 1st defendant has breached the agreement and started directing his 5th movie for the 2nd defendant with the script for which copy right is vested with the plaintiff. 12. Relying upon the judgment of the Hon'ble Supreme Court in IPRS Vs. EIMPA, AIR 1977 SC 1443 , the learned senior counsel appearing for the applicant/plaintiff contended that the contract falls within the ambit of a commissioned work. Hence the copy right of the script vests with the plaintiff, even otherwise the exclusive right over the script is always vests with the plaintiff. In view of the negative covenant, the 1st defendant cannot direct the 5th movie for any other production house other than the plaintiff. 13. In response to the above submission, the learned counsel appearing for the respondents/defendants submitted that the suit itself is not maintainable as a commercial suit, since the main relief sought is not in respect of a copy right ownership or copy right infringement. 13. In response to the above submission, the learned counsel appearing for the respondents/defendants submitted that the suit itself is not maintainable as a commercial suit, since the main relief sought is not in respect of a copy right ownership or copy right infringement. Contrarily the suit is for specific performance of the agreement dated 22.11.2018. Any suit for specific performance of personal obedience is not maintainable. Further under Section 12(A) of the Commercial Courts Act, 2015, pre suit mediation is a mandatory requirement. Only when an urgent relief required, a party can file the suit under this Act, dispensing the mandatory pre-condition. 14. The suit is also not maintainable in view of the Section 19 (A) of the Copy Right Act, 1957, since any issue with regard to the registered copy right has to be preferred before the Appellate Board. The agreement dated 22.11.2018 was terminated by the 1st defendant through his letter dated 18.10.2019. The said termination letter was not challenged before the Court nor any declaratory relief prayed before seeking permanent injunction. The suit is filed for specific performance, with delay of 26 months after termination notice is liable to be dismissed on the ground of delay and latches. The agreement dated 22.11.2018 is not a registered agreement and therefore, no copy right shall flow to the plaintiff. Even assuming that the copy right of the script vests with the plaintiff, since the said assignment in the agreement has not been exploited within the period of one year from the agreement. The right gets lapsed. 15. The 1st defendant as a script writer and director enter into an agreement with the plaintiff to direct the film tentatively titled as 'Zindabad'. The script for the said film was to be written by the 1st defendant. The plaintiff was not co-operating and had no finance to start the production of the film at their instance. The 1st defendant met other production house to produce the film with Aadhi Pinisetty in the leading role. The script for the said film was to be written by the 1st defendant. The plaintiff was not co-operating and had no finance to start the production of the film at their instance. The 1st defendant met other production house to produce the film with Aadhi Pinisetty in the leading role. Since no production house was ready to make the film 'Zindabad' with Aadhi Pinisetty in the leading role and the plaintiff was also not in a position to produce the movie, the 1st defendant after informing the plaintiff and getting his consent in the presence of the members of the South Indian Film Chamber of Commerce entered into an agreement with the 2nd defendant and started directing the movie. The plaintiff was also aware of the progress of the production of the said movie. Having awaited till the major completion of the movie, the present suit is filed with suppressed facts. The plaintiff has no right over the script either as a copy right holder or owner. The agreement with the plaintiff to script the story and direct the movie failed due to failure on the part of the plaintiff as he was not ready and willing to produce the movie even after a lapse of one year from the agreement dated 22.11.2018. 16. The letter communication as well as SMS communication between the parties were relied by the counsels, the portion of the communication, which are in their advantage were pointed out to canvas the merit of the case. Particularly relying upon the script handed over to the plaintiff during the month of July 2019 and the SMS between the 1st defendant and Aadhi Pinisetty dated 03.07.2020, which reads as follows:- “IMAGE” 17. After this communication, there is a twist in the progress whether it was in respect of the choice of heroine or producing the movie 'Shabdam' simultaneously is not clear. However, the plaintiff has projected only the issue regarding the simultaneous production of the other horror movie tentatively titled by 'Shabdam'. The SMS dated 25.07.2020 indicates that Aadhi Pinisetty is not interested in taking 'Shabdam' movie and in his communication dated 26.07.2019 Aadhi Pinisetty has messaged to the 1st defendant as below: “IMAGE” 18. The message of the 1st defendant dated 15.09.2019 reads as under:- “IMAGE” 19. On 19.09.2019, the 1st defendant has sent a very lengthy message. The SMS dated 25.07.2020 indicates that Aadhi Pinisetty is not interested in taking 'Shabdam' movie and in his communication dated 26.07.2019 Aadhi Pinisetty has messaged to the 1st defendant as below: “IMAGE” 18. The message of the 1st defendant dated 15.09.2019 reads as under:- “IMAGE” 19. On 19.09.2019, the 1st defendant has sent a very lengthy message. Its gives answer for the break down of the contract, which is the subject matter of the suit hence the same is reproduced as below:- “IMAGE” 20. The point for consideration is whether an agreement to write the script and direct the movie confers any right to the agreement holder to enforce the negative covenant or to enforce the specific performance of the personal obedience. From the reading of the covenant found in the agreement there is a clause which specifically says that the 1st defendant shall direct the 5th movie only for the plaintiff and if he wants to direct any movie to other producers, written consent should be obtained. From the conversations, as found in the SMS extracted above and the mediation attempt before the film producers chamber goes to show that the 1st defendant had made script for two movies and he had a wish to produce both the movies if possible with the same producer or with different producers. As far as the plaintiff who had a pre-emptive right engaged the 1st defendant to direct the movie with the script titled as ''Zindabad”, the production of the said movie for reasons best known was delayed. Admittedly, he has advanced Rs.1,00,000/- to the film 'Shabdam' also, but not interested in producing the film “Shabdam”. 21. At this juncture, it is now placed before this Court that the 1st defendant through the 2nd defendant had already started directing the movie and audio launching is due and awaiting clearance from the Court. The second prayer insisting for specific performance to direct personal obedience of the 1st defendant has become infructuous, since movie based on the said script now under production. In the given facts and circumstances restraining the defendants from proceeding further in dealing with the feature film under production is not going to help either of the parties and continuity of the restrain order will be destructive for both parties. In the given facts and circumstances restraining the defendants from proceeding further in dealing with the feature film under production is not going to help either of the parties and continuity of the restrain order will be destructive for both parties. The plaintiff, if succeeds in the suit, he will be entitled for damages and quantum of damages has to be ascertained only after trial. 22. For the present, this Court is of the view that the interest of the plaintiff will be well protected, if the defendants 1 and 2 jointly or severally deposit a sum of Rs.20 lakhs in the suit account. The restrain order dated 01.04.2021 shall be revoked, on such deposit. The defendants shall be permitted to proceed to dealing with the script 'Border' @ 'Zindabad', on deposit of Rs.20 lakhs till the said amount is deposited, the interim order passed by this Court shall continue. 23. Accordingly, the Original Application is partly allowed. No costs.