Trishul Media Entertainment v. Retrophiles Private Limited & Ors.

15. Dr. Abhinav Chandrachud has relied upon the decision of the Delhi High Court in Fox Star Studios Vs. Aparna Bhat[1] (Paragraph 35-39, 41) and Suresh Jindal Vs. Rizsoli Carriere Della Sera[2] (Paragraphs 2, 4, 6), wherein the Delhi High Court and Supreme Court have emphasized that damages would not be a complete and adequate remedy when it comes to questions of moral rights.

16. Dr. Abhinav Chandrachud has thereafter submitted that for leave to bring the present Suit in a representative capacity as far as prayer Clause (c) is concerned, it is not necessary that all the Plaintiffs must be interested in all the reliefs that are being sought in the Plaint. He has relied upon this Court’s decision in Tata Sons Vs. (at Paragraph 2.2, 5, 6-9, 11, 12), wherein this Court had laid down three propositions: firstly, that each of the Plaintiffs need not be interested in each of the reliefs in a Plaint filed in a representative capacity; secondly, that no leave can be granted where there is a conflict of interest within the class and thirdly that even when some relief is not for the benefit of the entire class, as long as it is not to the detriment of the class, the Suit can nonetheless be filed in a representative capacity as the other members of the class may 1 (2020) SCC Online Del 36 2 (1991) Supp (2) SCC 3 3 Chamber Summons (L) No.809 of 2017 (order dated 10th July, 2017) concur in the benefit to one or some of the Plaintiffs.

17. Dr. Abhinav Chandrachud has relied upon decision of the Supreme Court in Chariman, T.N. Housing Board Vs. T.N. Ganpathy,[4] (Paragraph 7-9) in support of his submission that what is required in a representative suit is “sufficient community of interest”. In other words, as long as there is sufficient commonality of interest between the members of the class, it does not matter if the reliefs sought by each member of that class are not identical. He has pointed out that in this decision, the Supreme Court held that damages can be claimed in a representative suit. He has submitted that in the said decision, the Supreme Court held that Order I, Rule 8 of the CPC must be interpreted in a manner which subserves the object for which the law was enacted. The provision was meant to prevent the Court from being overwhelmed by a large number of proceedings being filed on the same subject matter, and to protect the Defendant from having to defend a large number of suits on the same question. He has referred to another decision of the Supreme Court in K.S. Varghese Vs. Saint Peter’s and Saint Paul’s Syrian Orthodox Church,[5] (Paragraphs 4, 11,

18. Dr. Abhinav Chandrachud has further submitted that Order I, Rule 8 of the Code of Civil Procedure is a procedural rule that is meant to subserve the cause of justice and stands on a footing which is similar to Order I, Rule 1 of the CPC, under which various parties can be impleaded as Plaintiffs provided there is some common question of fact or law which arises between them, even if the reliefs sought by each of them are not identical. He has submitted that the Plaintiff has a sufficient community of interest with the other members of the class (i.e. its 147 employees who have worked on the subject film) since the Plaintiff is asserting its rights under Clause 1.6.[2] of the VFX Studio Agreement, for on-screen credit for its employees. The Plaintiff’s interests under Clause 1.6.[2] and the employees’ interests under Section 57 of the Copyright Act, are aligned. In Tata Sons (supra), this Court held that a representative suit can be filed so long as there is no conflict of interest within members of the class. There is no conflict of interest between the Plaintiff and its 147 employees in the present case.

19. Dr. Abhinav Chandrachud has dealt with submission of the Defendants that Order I, Rule 8 leave should not be granted because the Plaintiff’s employees have not yet indicated whether they intend to sue the Defendants for damages under Section 57(1)(b) of the Copyright Act. He has submitted that the right of an author of a work to claim authorship is a right which stands in addition to the right of the author to seek damages for mutilation etc. of the work. Thus, after notice is issued to the Plaintiff’s employees under Order I, Rule 8 of CPC, some of the Plaintiff’s employees may seek damages against the Defendants. However, that could not in any manner conflict with their right to claim authorship of the work.

20. Dr. Abhinav Chandrachud has submitted that no consent of members of a class is necessary prior to filing a representative suit or prior to seeking leave under Order I, Rule 8 of the CPC. He has submitted that this stands to reason because a class may be very large in many cases. Order I, Rule 8 does not require that any consent must be obtained from members of the class prior to filing a representative suit / seeking leave under Order I, Rule 8 even if the class is relatively small. He has submitted that in any event, around 70 employees of the Plaintiff have granted their consent to the Plaintiff for filing the present suit. Further, under Order I, Rule 8(2) of the CPC, once leave is granted, this Court would have to issue notice to the members of the class, either by personal service or public advertisement. Thus, Order I, Rule 8 contemplates issuance of notice to the members of the class only after leave is granted, not before the suit is filed or before granting leave.

21. Dr. Abhinav Chandrachud has submitted that the amendment application for amending the Plaint in order to bring the present Suit in a representative capacity as far as prayer Clause (c) is concerned does not alter the character of the Suit. He has referred Paragraphs 35-37 of the Plaint, wherein there are averments that the Plaintiff sought the relief of on-screen credits for its employees. He has further referred to Paragraph 16 and prayer Clause (a) of the Interim Application (L) No.15925 of 2023, which was filed on the same date as the Plaint, wherein the Plaintiff sought on-screen credits for its employees. He has further submitted that when arguments were made on 15th June, 2023, the Plaintiff’s Advocate sought the relief of on-screen credits for the Plaintiff’s employees. Thus, the Suit as originally filed always sought to assert rights on behalf of the Plaintiff’s employees as well. He has submitted that far from altering the character of the Suit, the Plaintiff’s amendment application is merely clarificatory.

22. Dr. Abhinav Chandrachud has relied upon the decision the Supreme Court in Punjab National Bank Vs. Indian Bank[6] (Paragraph

17) in context of his submission that there are very limited grounds for rejecting a pre-trial amendment to the Plaint. Further, it is irrelevant, while deciding such application whether the amendment if allowed, would eventually fructify into a decree on the merits of the matter.

23. Dr. Abhinav Chandrachud has submitted that the balance of convenience is in favour of the Plaintiff. He has relied upon the decision of the Supreme Court in Suresh Jindal’s case (supra) and Fox Star Studios (supra), wherein it has been held by the Supreme Court and Delhi High Court respectively that damages cannot adequately compensate an author for loss of moral rights. He has submitted that in the present case, the application for credits to be given to the employees, is required to be contrasted with the cost to the Defendants to merely add a slide for including the names of the Plaintiff’s employees in the on-screen credits which is relatively less.

24. Dr. Abhinav Chandrachud has accordingly submitted that the relief sought for in the Interim Application which seeks granting of credit for the Plaintiff’s employees, who have contributed to the making of the subject film and that their deserving credit both under the Agreement as well as their statutory right under Section 57 of the Copyright Act be granted.

25. Mr. Hiren Kamod, learned Counsel appearing for Defendant No.1 has submitted that in the present Suit, the Plaintiff is asserting contractual right of getting credit in the end-credits of the subject film and has further sought damages on account of termination of agreements with Defendant No. 1. Mr. Kamod has referred to certain dates and events including referring to the VFX Studio Agreement dated 5th August, 2021 and second VFX Studio Agreement having been executed on 26th May, 2022. He has further submitted that dispute between the Plaintiff and Defendant No.1 over delays and quality of work of the Plaintiff commenced on 1st November, 2022. Several correspondence were exchanged in that context from time to time. He has submitted that from this correspondence it is apparent that there was dispute over the quality of work and delay on account of the Plaintiff. Although, the Defendant No.1 terminated the Agreement with the Plaintiff on 6th February, 2023, the Plaintiff refused to hand-over the materials and deliverables until Defendant No.1 acceded to Plaintiff’s monetary demands. The Defendant No.1 noted by E-mail dated 4th March, 2023 that it had paid money in excess of Rs.[6] Crores to the Plaintiff and given the failure of Plaintiff to hand-over the deliverables, Defendant No.1 would have to REDO the scenes by spending huge sums.

26. Mr. Kamod has further referred to the correspondence dated 23rd March, 2023, wherein the Defendant No.1 noted the breaches and defaults committed by the Plaintiff including the failure of Plaintiff to provide the materials and deliverables under the agreements and called upon Plaintiff to inter alia return all monies paid by Defendant No. 1 to the Plaintiff. In response, the Plaintiff vide correspondence dated 10th April, 2023 contended that it was exercising equitable lien over the deliverables and would not release the same. Mr. Kamod has submitted that 48 hours prior to the release of the subject film, the Plaintiff filed the present Suit on 14th June, 2023. He has submitted that the Defendant No. 1 was served with Plaint and Interim Application in the second half of 14th June, 2023, with a notice that the matter was listed on 15th June, 2023 seeking to injunct the release of the subject film which was scheduled to release on 16th June, 2023.

27. Mr. Kamod has submitted that the Plaintiff has deliberately with a mala fide intent to arm-twist Defendant No. 1 filed the present Suit at the eve of the release of the subject film knowing fully well that Defendant No. 1 would not have an opportunity to controvert the allegations in the Plaint. On 15th June, 2023, the Plaintiff sought credits in the film failing which the Plaintiff was seeking to injunct the release of the film.

28. Mr. Kamod has submitted that it is a misconceived contention of the Plaintiff that Paragraph 3 of the order dated 15th June, 2023, was an admission on the part of Defendant No.1 that the Plaintiff is entitled to get credits in the film. The fallacy of the contention is evident from the fact that Defendant No. 1 has, at no point, admitted that Plaintiff is entitled to any credit. He has in that context referred to the contemporaneous correspondence to show that prior to the filing of the Suit the Plaintiff had refused to release the Deliverables to Defendant No. 1 and claimed a lien over the same. The Defendant No. 1 in fact after terminating the agreements with the Plaintiff had put the Plaintiff to notice that it was redoing the work for which the Plaintiff was hired and that the Defendant No.1 had, in fact, entered into agreement with Phantom Digital Effects Limited for Rs. 7,35,00,000/-.

29. Mr. Kamod has submitted that the submission of alleged admission is nothing but an afterthought, by which the Plaintiff has sought credit to the employees on the basis of an alleged admission on the part of the Defendant No.1. The Plaintiff could have made an Application immediately after passing of the said order dated 15th June, 2023. However, the Plaintiff did no such thing and in fact filed Interim Application (L) No.1935[3] of 2023 seeking credit for its alleged 147 employees after one month i.e. on 15th July, 2023. The Defendant No.1 has in its Reply Affidavit stated that the Plaintiff is not entitled for any credit for the subject Film. He has relied on Paragraph 29 of the Affidavit-in-Reply in this context. This statement in the Affidavit-in-Reply remains uncontroverted.

30. Mr. Kamod has submitted that the Defendant No.1 giving credit to the Plaintiff for the character assets as recorded in the said order dated 15th June, 2023, in Paragraph 3 thereof, at the highest is a concession and cannot be treated as an admission. He has in that context relied upon the decision of this Court dated 31st July, 2014 in Dilip Kumar Lakhi v. The New India Assurance Company Limited,[7] wherein this Court has held that a concession made by a Party in a proceeding cannot be treated as an admission of liability. He has placed reliance upon Paragraph 11 to 14 of this decision in this context.

31. Mr. Kamod has thereafter submitted that Section 57 of the Copyright Act, 1957 does not apply to the Plaintiff being a juristic entity and not a natural person, and hence, cannot claim any rights as an ‘author’ in respect of the artistic work under section 57 of the

32. Mr. Kamod has submitted that the Plaintiff has in fact failed to make out a prima facie case that the alleged work has in fact been used in the subject Film. The Plaintiff has failed to identify and compare its work and the work used in the subject Film. He has submitted that no document has been placed on record by the Plaintiff to show that the alleged work of the Plaintiff has been used in the Film. He has further submitted that the Plaintiff had submitted that its 147 employees are entitled to credit in the end-credits of the film on two counts – (i) as a contractual right under clause 1.6.2; and (ii) as a statutory right under section 57 of the Copyright Act

1957. Mr. Kamod has submitted that the agreement between the parties and in particular Clause 1.[6] thereof starts with the words “Upon the condition that the Services are completed and that Service Provider (Plaintiff) is not in uncured material breach…” (emphasis supplied). He has submitted that admittedly, there were several disputes between the Parties, and the Plaintiff has in its correspondence refused to hand-over the scenes / materials / deliverables to Defendant No. 1 claiming to have exercised an equitable lien over the same. He has further submitted that under Clause 1.6.[2] of the Agreement, the Plaintiff was required to designate its personnel who have rendered visual effects services in connection with the subject film. He has submitted that no such designations were made by Plaintiff since 2021 when the Agreements were entered nor were they made at the time of termination of the Agreements in February 2023.

33. He has submitted that at the time of hearing on 10th February, 2023 a list was entered by the Plaintiff, which is not even on oath and in any event denied by Defendant No. 1. The list shows that Plaintiff is claiming credit for alleged employees who are in no manner connected with the visual effects services such as HR Manager and IT Manager of the Plaintiff. He has submitted that lists were made available by the Plaintiff for the first time with the Interim Application (L) No. 15925 of 2023. The Defendant No.1 has in its Reply Affidavits denied the alleged work done by the Plaintiff’s employees. The Plaintiff elected not to file a Rejoinder Affidavit to deal with or prove its case in view of the specific denial by the

34. Mr. Kamod has submitted that the Plaintiff’s contention that the present Suit was filed in representative capacity is without any substance. He has further submitted that the amendment which is sought on behalf of the Plaintiff in the Interim Application No.1942[5] of 2023 is in fact to sue in representative capacity which also is misconceived. He has submitted that under Order I, Rule 8 of the CPC, the Plaintiff and the people who are represented by the Plaintiff must have the same interest in the Suit. He has placed reliance on the decision of this Court in Pramod Premchand Shah (supra), wherein this Court has held that there are three components in every Suit viz.

(i) right or liability, breach or accrual of which is complained of; (ii) injury or grievance; and (iii) relief claimed in the Suit. This Court has held that each person having same interest in the Suit must have commonality with the Plaintiff in respect of each of these three components. The reliefs claimed in a representative Suit must be beneficial to the people on whose behalf the Suit is instituted. He has submitted that the decision of this Court in Pramod Premchand Shah (supra), has been followed by this Court in Bina Deepak Panchamia & Ors. v. The Bombay Dyeing and Manufacturing Company Limited & Ors.8. In that decision, this court held that no person could purport to claim damages on behalf of another in a representative Suit. This Court also noted that the Plaint must indicate that the persons on whose behalf the Suit is being instituted concur with the Plaintiff.

35. Mr. Kamod has submitted that the Plaintiff and its employees do not have any commonality of interest in respect of the reliefs claimed in the present Suit. In the event, the Plaintiffs’ submission that the Suit was originally instituted in representative capacity is accepted, then the Plaintiff has accorded satisfaction in respect of the claim to be included in the end-credits as recorded in the order dated June 15, 2023. He has submitted that even otherwise there is no commonality of interest between the Plaintiff and its employees in respect of the monetary claim in the Suit. The

8 Dated August 21, 2018 in Leave Petition No. 34 of 2016 monetary claim is made only qua the Plaintiff and apart from there being no commonality of interest, the relief is only for the beneficial interest of the Plaintiff and not for its employees.

36. Mr. Kamod has submitted that the present Suit falls foul of the provisions of Order I, Rule 8 of the CPC. He has referred to subrule (4) which provides that no part of the claim in a representative Suit could be abandoned, withdrawn and no agreement, compromise or satisfaction could be recorded without notice being given in the manner provided in sub-rule (2) to the persons interested in the Suit. The Plaintiff cannot claim monetary relief of damages in its private capacity as the same would be contrary to sub-rule (4). Further, the Plaintiff recorded satisfaction of the claim qua credits in the order dated June 15, 2023, without any notice being issued under sub-rule (2). Hence, the Suit was never instituted in representative capacity and the submissions now made on behalf of the Plaintiff are an afterthought made with a mala fide attempt to mislead the Court.

37. Mr. Kamod has submitted that judgment of the Supreme Court in The Chairman, Tamil Nadu Housing Board, Madras v. T.N. Ganapathy[9] is also misplaced inasmuch as in that case, the Plaintiff had sought a relief for permanent injunction and was not a case seeking damages. The facts in that case are completely different from the present case.

38. Mr. Kamod has submitted that the Plaintiff by Interim Application (L) No.1942[5] of 2023 for amendment has sought to change the nature and character of the present Suit from one seeking redressal of contractual disputes to a representative Suit under Order I, Rule 8 of the CPC. He has submitted that same is impermissible. He has submitted that judgment relied upon by the Plaintiff viz. Punjab National Bank v. Indian Bank & Anr. (supra) is inapplicable to the present case inasmuch as in that case before the Supreme Court, the amendment sought was clarificatory in nature. In the present case, the Plaintiff has sought to change the entire basis and character of the Suit. He has further submitted that by the amendment application, some documents which were not annexed to the Plaint, have been sought to be produced. The only explanation being that the documents remained to be annexed inadvertently. He has submitted that this is contrary to the provisions of Order I[1], Rule 1(5) of the CPC read with the Commercial Courts Act 2015 and thus liable to be rejected. He has placed reliance upon the judgment of this Court in the matter of Khanna Rayon Industries Private Limited v. Swastik Associates & Ors.10 and Nitin Sukanraj Jain v. Neoliva Life in this context.

39. He has accordingly submitted that relief sought for in the above Interim Application be rejected.

40. Mr. Khandekar, learned Counsel appearing for Defendant No.2 has submitted that relief sought for by the Plaintiff in the Interim Application cannot be granted. He has submitted that the Suit filed by the Plaintiff is in a "personal capacity" and in respect of a "personal reliefs". He has referred to the relief sought for in Paragraph 57 of Plaint. He has submitted that the Plaintiff has sought a monetary claim/damages in respect of the Plaintiff’s alleged personal entitlement. The Plaintiff has further sought "due credit" to be given to the Plaintiff alone. He has submitted that the Plaintiff having sought enforcement of its "contractual right" under the agreement dated 26th May, 2022 between the Plaintiff and Defendant No. 1, is now seeking relief on behalf of 147 persons who were not before the Court. This can only be done if this Court grants leave to

11 Dated July 25, 2023, in Interim Application (L) No. 17260 of 2022 Plaintiff under Order 1, Rule 8 of the CPC to maintain action on behalf of such others. However, this would mean converting the Suit claiming contractual right into a representative Suit, for which the application is made under Order I, Rule 8 of the CPC.

41. Mr. Khandekar has submitted that the question before this Court is whether leave should be granted to the Plaintiff under Order I, Rule 8 of the CPC so that the Plaintiff could prosecute the present action, for and on behalf of others. He has submitted that the private nature of a Suit cannot be changed/converted to "a representative Suit", unless the ingredients of Order I, Rule 8 of the CPC is satisfied. He has submitted that the interest of the Plaintiff and the proposed 147 persons, whose grievances the Plaintiff is allegedly espousing, is not the "same interest" at all. This is a sine qua non whilst considering an application under Order I, Rule 8 of the CPC. He has submitted that it is trite law that leave under Order I, Rule 8 of the CPC is to be granted only when there is a commonality of interest, including "commonality in the relief" as sought. He has submitted that the entirety of the relief as sought is required to be considered and must be for "the benefit" of the "entire class" of persons, whose interests the Plaintiff claims to espouse.

42. Mr. Khandekar has submitted that the relief sought for by the Plaintiff in Prayer Clause ‘a’ of the Plaint is a "monetary claim" and/or a claim for "damages" which cannot be sought in a representative capacity. He has submitted that in fact, it was specifically argued by the Plaintiff that while the relief in prayer Clause ‘c’ of the Plaint is sought in representative capacity, the monetary claim and/or the claim for damages is continued to be sought as a personal relief. He has submitted that this is impermissible. He has placed reliance upon judgment in the case of Pramod Premchand Shah (supra) in particular Paragraphs 7, 8, 9, 10 and 13 thereof in this context.

43. Mr. Khandekar has submitted that in the above decision this Court has held that if a Suit is filed or defended for others, the such others must form a class having common interest in the right or liability alleged in the Suit to the grievance or injury complained of and the relief sought. The reliefs sought must in its nature be "beneficial to others". He has submitted that admittedly, in the present case, the reliefs insofar as the monetary compensation and damages is concerned, is in no way "beneficial" to 147 persons whose cause the Plaintiff now seeks to espouse. On this ground itself, since the relief sought as a whole is not for the benefit of all, the Suit as framed cannot be prosecuted as a representative Suit.

44. Mr. Khandekar has submitted that there can be "two classes" of interests created under Order I, Rule 8 of the CPC. The Plaintiff seeks to create an anomalous situation where part of the reliefs is prosecuted for ventilation of a private grievance whereas part of it is allegedly for and on behalf of others. He has submitted that the decision of this Court in Promod Premchand Shah (supra) requires the "entire reliefs" sought to be for the benefit of the "whole class".

45. Mr. Khandekar has submitted that in the present case, the relief sought for are in fact not for the benefit of the whole class. He has submitted that there is nothing on record to show that the said 147 persons concur with the fact that the Plaintiff must seek a monetary claim/damages only in respect of his own right and no claim should be made in this regard for and on behalf of the said 147 persons. Thus, the reliefs are incongruous with the provisions of Order I, Rule 8 of the CPC.

46. Mr. Khandekar has submitted that the Interim Application seeking leave under Order 1, Rule 8 of the CPC is completely in conflict with the requirements set out in Order 1, Rule 8(4) of the CPC. He has in this context relied upon the decision of this Court in The Municipal Council Amravati v. Govind Vishnu Sarnaik & Ors, Air 1976 Bom 401, more particularly on paragraphs 7, 8, 9, 10.

47. Mr. Khandekar has submitted that there is another reason why the Plaintiff cannot continue the present action as a representative action. By an order dated 15th June 2023, the Plaintiff recorded its satisfaction with respect to the Plaintiff's grievance for not having been given credit. He has relied upon the Paragraph 3 of the said order.

48. Mr. Khandekar has supported the submission of Mr. Kamod on Paragraph 3 of the said order. There has been complete satisfaction and redressal of the Plaintiff’s right to claim credit. Thus, there can be no commonality of the interest between the Plaintiff and its employees on the date an application for Order I, Rule 8 of the CPC i.e. on 4th August 2023, which is relevant. He has submitted that the Plaintiff must “continue” to have the same interest as others whose cause it seeks to espouse for it to even maintain an application under Order I, Rule 8 of the CPC. The Plaintiff failed to satisfy this precondition.

49. Mr. Khandekar has submitted Section 57 of the Copyright Act, which has been relied upon by the Plaintiff is inapplicable. The Plaintiff is not a natural person and cannot claim to be an author of works. The Plaintiff has in this context no subsisting right to claim relief on behalf of others.

50. Mr. Khandekar has submitted that even on merits, there is a serious dispute between the Plaintiff and Defendant No.1 to claim any relief of the nature sought by the Plaintiff. He has supported the submissions of Mr. Kamod that there is no material in support of the case for credit to be given to 147 persons whose cause the Plaintiff allegedly espouses. He has submitted that merely a list is tendered of such 147 persons without identifying what work was created by such persons. This cannot be considered by this Court for granting interim relief.

51. Mr. Khandekar has further submitted that there is no explanation for the delay in approaching the Court. He has relied upn certain dates which have also been relied upon by Mr. Kamod in support of his contention that the Plaintiff had come on the eleventh hour and sought to restrain the Defendant from theoretically releasing the subject film i.e. on 15th June, 2023. He has further submitted that the present Interim Application (L) No.1935[3] of 2023 made by the Applicant/Plaintiff restraining release of the subject Film on OTT Platform has been made without joining the third party i.e. OTT Platform with whom third party rights have already been created by Defendant No.2. He has submitted that the Defendant No.2 has entered into an agreement with Netflix on 5th April, 2022 and under which Netflix has sole right to decide the release of the subject film after a lapse of 56 days from the date of theatrical release. The subject Film has released on ‘Nelflix’ on 11th August,

2023. Mr. Khandekar has placed reliance upon the decision in support of his submission that if the Plaintiff does not move the Court with requisite alacrity, ad-interim relief should not be granted to the Plaintiff. In this context he has relied upon (i) Sai Paranjpaye vs. PLA Entertainment Pvt. Ltd. & Ors.12, Paragraphs 7 to 11 and (ii) Shemaroo Entertainment Ltd. vs. Suryaveer Singh Bhullar & Ors. 13, Paragraphs 21, 22, 23 and 24. 12 NM (L) No. 764 of 2013 in Suit (L) No. 280 of 2013 dated 4th April 2013

52. Having considered the above submissions, it is necessary to consider the true purport of the Interim Applications taken out by the Applicant/Plaintiff after the Interim Application (L) No.15925 of 2023 was taken out in the above Suit which had come up before this Court on 15th June, 2023.

53. The first of the Interim Application viz. Interim Application

(L) No.1935[3] of 2023, seeks credit to the Plaintiff’s employees and injunction restraining the release of the subject film on OTT Platform. The other Interim Applications are Interim Application (L) No.1942[5] of 2023 for amendment of the Plaint and Interim Application (L) No.21493 of 2023 seeking leave under Order I, Rule 8. In my view these Interim Applications have been filed clearly by way of an afterthought.

54. The present Suit filed on the face of it is a Suit claiming contractual rights. The Plaintiff has in prayer Clause ‘a’ of the Plaint sought damages apart from certain unpaid amounts which it claims are due to the Plaintiff and payable by Defendant No.1 under the VFX Studio Agreement. This can be seen from the particulars of the Plaint at Exhibit-AA, wherein claim is made for losses incurred on account of termination of contract; loss of reputation and goodwill; loss of profit (15% of project value) etc. This is apart from the claim of unpaid amounts of work done.

55. The Plaintiff has amongst the prayers in the Plaint sought as a final prayer, prayer Clause ‘c’ viz. a direction from this Court directing the Defendants to give due credit to the Plaintiffs in the end credit rolls of the film at the appropriate place when released on any media Platform. A mere perusal of this prayer would show that the relief sought is for credit to the Plaintiff alone, though the word ‘Plaintiffs’ have been mentioned i.e. in the plural as in the present Suit, there is only one Plaintiff.

56. Dr. Abhinav Chandrachud has placed reliance on certain Paragraphs of the Plaint and in particular Paragraphs 35, 36 and 37, wherein reference has been made to Clause 1.6.[2] of the VFX Agreement and credit required to be provided to the Service Provider’s / Plaintiff’s Personnel. However, there is no relief sought in favour of the employees in the Plaint. This is in view of the fact that the VFX agreement was entered into between Defendant No.1 and the Plaintiff and the employees were not privy to the said agreement. Further, under Clause 1.[6] of the VFX Agreement, there was a pre-condition that the Service Provider / Plaintiff shall not be in uncured material breach and only if that pre-condition was satisfied credit could be given to the Plaintiff’s personnel. Termination has been provided in Clause 7 of the VFX Agreement viz. that the Plaintiff shall be entitled to terminate the agreement upon occurrence of inter alia non performance or uncured material breach by the Service Provider / Plaintiff of the services, representation, warranties and obligations and failure to remedy the same within 14 days of notice from the Producer. It is an admitted fact that the VFX Agreement has been put an end to on 6th February, 2023. The Plaintiff has not challenged the termination of the VFX Agreement but in fact claims damages on account of termination as aforementioned.

57. The contention on behalf of the Plaintiff that Defendant No.1 in the said order dated 15th June, 2023 had by giving credit for character assets to the Applicant/Plaintiff in the subject Film has admitted that the Plaintiff is not in uncured breach of the Agreement is in my view without any merit. Further, the interpretation placed by the Counsel on behalf of the Applicant/Plaintiff on Paragraph 3 of the said order dated 15th June, 2023 is contrary to the true letter and spirit in which the said order was passed. In the said Paragraph the learned Senior Counsel for the Defendant No.1 had raised a preliminary issue on the maintainability of the Suit. Thereafter, the statement had been made on behalf of the Defendant No.1 that the Applicant/Plaintiff had in fact been given credit for the character assets of the subject film and a snapshot of the credit which had been taken on record and marked ‘X’ for identification. In my view the credit given can only amount to a concession on the part of Defendant No.1, particularly considering that the subject film was being theatrically released on the next day and the Applicant/Plaintiff had moved the Interim Application before the Court one day prior to the theatrical release seeking restraint on the release of the subject film. Further, it is significant that in the last sentence of Paragraph 3 of the said order it is recorded “Thus, the grievance insofar as the Plaintiff regarding not being given credit in the subject film appears to be addressed.”

58. It is in view of this concession that the Counsel for the Applicant/Plaintiff did not press for the other relief on that day. It is much later i.e. on 14th July that the subsequent Interim Application has been taken out by the Applicant/Original Plaintiff seeking restraint on release of the subject Film on OTT Platforms until the employees of the Applicant/Plaintiff are given credit in the subject film. Further, the Application is made on 4th August, 2023 seeking leave under Order 1, Rule 8 to file the Suit as a representative Suit on behalf of the employees of the Applicant/Plaintiff, for which purpose the Amendment Application is taken out. These Applications as aforementioned are thus clearly by way of an afterthought and for the purpose of considering the Application for ad-interim relief, the delay in taking out these applications would be a significant factor.

59. Having perused the material on record, including the correspondence exchanged between the Plaintiff and Defendant No.1 prior to the termination of the agreement on 6th February, 2023, undoubtedly, there were disputes with regard to the delays in meeting the schedules as provided for in the said agreement. I am of the prima facie view that the delays were on the part of the Applicant/Plaintiff complying with its obligations under the Agreement. Although there are counter allegations of delay made by the Plaintiff regarding feedback received from Defendant No.1 in respect of its work, the theatrical release of the subject film was being indefinitely delayed, as the release date of the subject film has been widely published on social media Platform as on 8th November, 2022. Further, there is correspondence addressed by the Applicant/Plaintiff wherein it had claimed equitable lien over the deliverables and that they would not release the same until their claims for outstanding bills are satisfied. The further material on record also prima facie establishes that the Defendant No.1 was only able to thearatriclly release the subject film by having a REDO of the scenes and for which they had entered into a contract with Phantom Digital Effects Limited for that purpose.

60. Thus, in my prima facie view, it does appear that the Applicant/Plaintiff is in uncured material breach, which as aforementioned is a pre-condition required to be satisfied by the Plaintiff prior to invoking Clause 1.6.[2] of the VFX Agreement. I find much substance in submission on behalf of Defendant No.1 and 2 that the statement made on behalf of Defendant No.1 as recorded in Paragraph 3 of the order dated 15th June, 2023 cannot be considered to be an admission on the part of Defendant No.1 as to there being no uncured material breach on the part of the Plaintiff. Further, in my prima facie view, the statement recorded in Paragraph 3 of the order dated 15th June, 2023 can only amount to a concession on the part of Defendant No.1 given the circumstances in which it was made i.e. the theatrical release of the subject Film.

61. The decision of this Court relied upon by Counsel for Defendant No.1 in Dilip Kumar (supra) is apposite. In that case, this Court had held that a concession made by party in a proceeding cannot be treated as an admission of liability. It is relevant to reproduce Paragraph 11 to 14 as under: “11. Mr. Bobade argued that the word “difference” is the difference in the amount claimed by the petitioner and the amount offered/accepted by the respondent. The clause cannot be so read. The word “difference” must be read as “dispute” because the differences and disputes of a party are referable to arbitration. It is only because part liability is admitted. There is nothing to show that the liability has been admitted by the respondent company to any extent. The admission of liability must be unconditional. The acceptance of the Insurance Company was for payment only if it was accepted in full and final settlement. That would not show admission of liability. That would in fact show no admission of liability. It would only be a concession. The concession is to pay a lesser amount than the amount claimed, if the entire claim is settled fully and finally. It is much like two parties in a litigation negotiating a settlement. Even if a Civil Suit is filed for a larger amount the parties may settle the dispute for a lesser amount. Such is an offer of settlement. Such an offer of settlement cannot constitute admission of liability. The civil lis would be settled only if the offered amount is accepted in full and final settlement. The acceptance by the respondent of a part of the claim of the petitioner based upon certain documents, which shall be referred to presently, is precisely of such nature. It would be an offer of settlement of the claim. It is, therefore, a concession as contended by the respondent.

12. The distinction between concession and a settlement must, therefore, be noted. Black's Law Dictionary 8 Edition at page 307 defines concession thus: “The voluntary yielding to a demand for a sake of settlement”

13. The book of Words and Phrases by Justice R.P. Sethi 2 Edition at page 260 explains concession and rebate as “a grant”. It refers to the common dictionary meaning of the word concession as: “The act of yielding or conceding as to a demand or argument, something conceded; usually implying a demand, claim, or request, a thing yielded, a grant”.

14. The offer of the respondent is, therefore, distinctly a concession and not an admission. The liability of the respondent is, therefore, not admitted. Clause 19 would, therefore, not apply for only the difference of the amount. Even if the expression “difference” would not include “dispute” and would be the difference between the claim made by the petitioner and the offer made by the respondent, the arbitration that is contemplated by the parties is, therefore, of the entire amount.” (emphasis supplied)

62. Thus, the admission of liability must be unconditional. In my prima facie view the Defendant No.1 had not made any admission as to the Applicant/Plaintiff not being in uncured breach. Thus, in my prima facie view, the Interim Application seeking invocation of Clause 1.6.[2] of the VFX Agreement and for credit to be given to the employees of the Applicant/Plaintiff is without any merit as the Plaintiff has not been able to satisfy this Court that it is not in uncured material breach.

63. Further, the Interim Applications taken out by the Applicant/Plaintiff, one under Order I, Rule 8 of the CPC and the other for amendment are seeking to convert the present Suit which in my view is purely contractual, ascertaining a private right of Plaintiff in the Plaintiff’s personal capacity and in respect of the personal relief, into a representative Suit. In order to do so, the Plaintiff is required to satisfy this court as to whether the ingredients of Order I, Rule 8 of the CPC are satisfied. In this context Paragraph 7 to 10 and 13 of Pramod Shah (Supra) are relevant as under: "7. With this preface, we may now turn to the issue of leave under Order 1 Rule 8 in the present case. Sub-Rule (1) of Rule 8 permits one or more persons to sue (or defend) with leave of the court on behalf of, or for the benefit of, numerous others provided that such others have "the same interest in one suit." Sub-Rule (2) provides for a notice of institution of such suit where this leave is granted to all persons so interested. Any such person/s may apply for impleadment to such suit under Sub-Rule (3). Sub-Rule (4) forbids any compromise or satisfaction of such suit except with notice to all persons interested. It is permissible to the Court, under Sub-Rule (5), to substitute the person suing (or defending) with any other person having the same interest. Sub-Rule (6) makes a decree passed in such suit binding on all persons on whose behalf, or for whose benefit, the suit is instituted (or defended). The Explanation appended to the Rule makes it clear that for claiming "the same interest in one suit", it is not necessary to have the same cause of action as the persons on whose behalf, or for whose benefit, the suit is filed (or defended). That is the scheme of Order 1 Rule 8. This scheme is an exception to the general rule that all persons interested in the suit must be made parties to it. The object of this exception is clearly to facilitate the redressal of grievances in which a large body of persons are interested, but where several practical difficulties would arise if every individual so interested were to either join in one suit or file a separate suit under the general rule. The special rule facilitates prosecution of a cause in which numerous persons are interested, whilst, at the same time, protects the opponent from having to face a multitude of causes. If that is so, the essential condition for application of this special rule, by its very nature, must be that the interest of persons interested must be really represented by those that file or defend the suit. For if that interest be clashing or different from the persons suing or defending on their behalf, or for their benefit, various anomalies would ensue if these latter were permitted to sue or defend on the former's behalf or for their benefit, and any decree in the suit were to bind the former.

8. That seems to be pretty clear as a matter of principle, but what is precisely meant by the expression - "same interest in one suit"? Going by the Explanation, at least one thing is clear and that is that "same interest" does not imply "same cause of action". Then, what does the expression signify? For that purpose, one needs to examine the phrase in its essentials and in the context of its purpose. It is important to remember that this "same interest" must be "in one suit". Every suit has three components - the first is the right or liability, breach or accrual of which is complained of in the suit; the second is the injury or grievance resulting from any actual breach or accrual on the part of the opponent; and the third is the relief that is claimed in the suit. Each person having the "same interest in the suit" must have commonality with the plaintiff, or the defendant, as the case may be, in respect of each of these three components. If the suit is filed or defended for others, such others must, therefore, form a class having a common interest in (i) the right or the liability alleged in the suit,

(ii) the grievance or injury complained of and (iii) in the relief sought. As for the last component, in the case of a plaintiff proposing to represent the others, the relief sought must in its nature be beneficial to such others.

9. … The learned Judge then noted the following rule of law, which since has come to be accepted as the proper basis on which a representative action is countenanced. The rule was stated thus: "Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent."… 10.… The differentiation proposed in the scheme operated so that the more affluent of the tenants would end up subsidizing the less affluent. In fact, as was pointed out in that case, about 5,000 of the 13,000 tenants, who were of less affluent circumstances, suffered no increase of rent at all. This fact made it at once apparent that there were two classes, whose interests were not identical, but were in conflict, namely, the subsidizers and subsidized. The latter would benefit by having no increase, or at least no present increase, whilst the former might have inflated increase. These two classes could not be said to have the same interest in the relief claimed in the suit. The relief, which would favourably impact the 'subsidizing' group could not be said to be beneficial to the subsidized group. (The Corporation certainly had the right to increase the rent to meet its budget. …" …

13. Mr. Madon tried to counter this by suggesting, firstly, that there are in fact others who concur with, and share, the Plaintiffs' cause, and, secondly, if some individuals, who are claimed to be represented here, have a different perception and do not agree with the Plaintiffs, they may well choose to join the suit as defendants and oppose the suit. There is no merit in either of these suggestions. The fact that there are actually some others who support the Plaintiffs is not determinative of the issue. That is a mere coincidence. The question is whether there is a class of persons having the same interest in the suit and that question has to be decided at the date when leave under Order 1 Rule 8 is sought, when it is only the plaintiff who is before the court. The answer must, in turn, depend on the very position of the others who are claimed to be represented insofar as their interest in the suit is concerned. If by its very nature, their interest in the suit is not the same as the plaintiff, the application for leave must fail. If it is the same, the application must succeed. As we have noted above, by its very nature the interest in this suit of others of the alleged class is not the same as the Plaintiffs. If that is so, it does not matter that some others of that class have actually come forward in support of the Plaintiffs. That only means that there are, as it turns out, some others who claim the same right to relief in respect of, or arising out of, the same act or transaction, or series of acts or transactions. If that is so and if common questions of law or fact would arise if separate suits were to be brought by them, there is a case for joinder of those others under Order 1 Rule 1. If not originally joined, they may seek joinder under Order 1 Rule 10. But it is still not a case for leave under Order 1 Rule 8. Apart from impleadment of parties under Order 1 Rule 10, the law also envisages several other ways of dealing with such situations. There could be clubbing of several suits for trial (if several individual suits are filed) or there could even be a test case (if other suits could later follow)." (Emphasis supplied)

64. Thus, from the above decision it is apparent that the ingredients required to be satisfied by the Plaintiff seeking leave under Order I, Rule 8 are that the Plaintiff represents a class having a common interest in (i) the right or the liability alleged in the Suit;

(ii) grievance or injury complained of; and (iii) in the relief sought.

In the context of (iii) above, this Court has held that the relief sought must in the nature be beneficial to such others. Further, this Court has drawn a distinction in Joinder of those others under Order I, Rule 1 and Order I, Rule 10 with leave under Order I, Rule 8, where in the latter all the aforementioned ingredients are required to be satisfied.

65. In the present case, the Applicant/Plaintiff has claimed relief of damages apart from unpaid bills due from Defendant No.1. This claim can only be beneficial to Applicant/Plaintiff and not to the employees of the Plaintiff. Prayer Clause ‘c’ of which the Counsel on behalf of the Applicant/Plaintiff has relied upon for seeking leave under Order I, Rule 8 to maintain the action on behalf of the employees, can only be invoked as admitted by Counsel on behalf of Applicant/Plaintiff, in the event, the employees have a common interest with the Plaintiff. Prayer Clause ‘c’ as it stands is only qua the Applicant/Plaintiff who is claiming credit in the subject Film. The prayer is not sought in respect of the employees of the Plaintiff and is a final prayer. Although there are submissions made by the Counsel on behalf of the Plaintiff that certain paragraphs of the Plaint are required to be considered where the Plaintiff has made averments that they were also seeking credit to be given for its employees, that cannot be read independently from the ultimate relief sought for in the Plaint. Further, from a reading of Clause 1.6.[2] of the VFX Agreement, assuming that there is no uncured breach on the part of the Plaintiff, credit is to be given to the employees of the Plaintiff and not the Plaintiff itself. This apart from the Plaintiff’s employees not being privy to the Agreement. Thus, the Plaintiff has no commonality of interest with its employees under Clause 1.6.[2] of the VFX Agreement in claiming credit in the subject film. The employees can only be represented by the Plaintiff, in the event that the Plaintiff has or continuous to have an interest in the relief i.e. prayer Clause ‘c’ sought for in the Suit.

66. The Applicant/Plaintiff has sought leave under Order I, Rule 8 of the CPC by placing reliance upon Section 57 of the Copyright Act. It would be necessary to reproduce Section 57 of the Copyright Act, which is as under:

67. Under this provision the author’s special rights have been provided. The author of a work shall have the right to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification or any other act in relation to the said work if such distortion, mutilation, modification or other act would be prejudicial to the honour or reputation of the author of the work. Thus, these are the rights exercisable by the author of the work. Necessarily the author of the work has to be a natural person as in this case the employees of the Applicant/Plaintiff. The Applicant/Plaintiff being a juristic entry is not a natural person and thus cannot claim rights as an “author” in respect of the work under Section 57 of the Copyright Act. In that view of the matter, the Applicant/Plaintiff cannot claim to have commonality of the interest with its employees in representing them and seeking leave under Order I, Rule 8 of the CPC to bring the Suit in a representative capacity. Thus, the leave sought under Order I, Rule 8 of the CPC by the Applicant/Plaintiff without there being commonality of interest in the relief sought cannot be granted.

68. Insofar as the amendment application is concerned being Interim Application No.1942[5] of 2023, the amendment is sought merely to bring the Suit as a representative Suit. There are some documents which are sought to be produced on the ground that they remained to be annexed inadvertently. These documents can only be permitted to be produced if they satisfy the statutory requirement under Order 11, Rule (1) (5) of the CPC read with the Commercial Cause Act, 2015. Further, it is well settled that such material cannot be produced merely on the ground that through inadvertence the document remained to be annexed. Apart from this, the very nature of the amendment is such that it seeks to change the character of the present Suit from a Suit which is purely in a personal capacity in respect of personal rights into a representative Suit, which cannot be permitted. The amendment falls foul of the provision of CPC namely Order 6, Rule 17 as well as Order 11, Rule 1 (5) of the CPC read with the Commercial Courts Act 2015. Accordingly, the amendment though a pre-trial amendment cannot be allowed in the circumstances of the present case.

69. Accordingly, the relief sought for in Interim Application (L) No. 1942[5] of 2023 for amendment as well as Interim Application (L) No. 21493 for leave under Order I, Rule 8 of the CPC cannot be granted. Further, no case has been made out for grant of relief as sought for in Interim Application (L) No. 1935[3] of 2023.

70. The Interim Applications are accordingly disposed of.

71. The Interim Application (L) No. 15925 of 2023 shall accordingly be placed for final hearing on 4th October, 2023. [R.I. CHAGLA, J.]