Full Text
HIGH COURT OF DELHI
Date of Decision: 28th April, 2023
CPC)
SAREGAMA INDIA LIMITED ..... Plaintiff
Through: Mr.Ankur Sangal and Ms.Trisha Nag, Advocates.
Through: Ms.Petal Chandhok and Ms.Rupali Gupta, Advocates.
JUDGMENT
1. The present application has been filed on behalf of the plaintiff under Order XIV Rule 5 of the Civil Procedure Code, 1908 (CPC) to frame an additional issue.
2. Notice in the application was issued on 15th March, 2023 and reply has been filed on behalf of the defendant.
3. Following issues were framed on 28th November, 2019: “i) Whether the defendant is infringing the copyright of the plaintiff in the plaintiff’s songs, including the underlying literary and musical works contained therein? (OPP) ii) Whether the defendant is stopped from challenging the rights of the plaintiff in the sound recordings and underlying literary and musical works of the cinematograph films forming the subject matter of the present suit? (OPP) iii) Whether the plaintiff is entitled to any damages, if so, to what amount? (OPP) iv) Cost. v) Relief.”
4. On 16th December, 2022, a Local Commissioner was appointed to record the evidence in the matter. Evidence by way of affidavit has been filed on behalf of the plaintiff, however, the evidence is yet to be recorded.
5. Senior counsel appearing on behalf of the plaintiff submits that while preparing for the evidence in the matter, it came to the notice of the plaintiff that inadvertently, the issue regarding rendition of accounts by the defendant has not been framed. Accordingly, the present application has been filed to frame an issue with regard to the aforesaid.
6. Senior counsel appearing on behalf of the plaintiff has drawn the attention of the Court to paragraph 15 of the plaint where averments with regard to rendition of accounts by the defendant have been made. The contents of the said paragraph have been denied by the defendant in his written statement.
7. Counsel appearing on behalf of the defendant submits that no such issue with regard to rendition of accounts was framed by the Court on 28th November, 2019, when the issues were being framed in the suit. This was because the relationship between the plaintiff and the defendant was governed by a License Agreement in terms of which annual license fee was BANSAL payable by the defendant to the plaintiff. Therefore, there was no question of the defendant providing a statement of accounts and hence, such an issue was not framed. It is further submitted that the present application has been filed in a highly belated matter i.e., more than three years after the framing of issues.
8. In rejoinder, senior counsel appearing on behalf of the plaintiff submits that the License Agreement between the plaintiff and the defendant was terminated on 30th December, 2016 and thereafter, there is no subsisting contract between the parties and the payments are being made by the defendant to the plaintiff only in terms of interim orders passed by this Court.
9. I have heard the counsels for the parties.
10. In terms of Order XIV Rule 1 of the CPC, the Court is required to frame issues upon all material propositions of fact or of law on which the parties are at variance. Order XIV Rule 5 of the CPC empowers the Court to amend issues or frame additional issues before passing a decree if such issues may be necessary for determining the matters in controversy between the parties.
11. At this stage, a reference may be made to paragraph 15 of the plaint, which is set out below: “15. That the Plaintiff submits that the likely losses, damages and harm to the Plaintiff’s business due to the unlawful acts of the Defendants are unquantifiable and irreparable and the same can only be quantified by rendition of accounts by the Defendant. However, at this stage, the Plaintiff has provisionally valued the present suit for the purpose of jurisdiction at Rs.1,10,00,000/- and seeks liberty of the Hon’ble Court to enhance the same after the rendition of accounts by the BANSAL Defendant.”
12. In its written statement, the defendant has simply denied the contents of the aforesaid paragraph and therefore, it is clear that the parties are at variance on the issue, whether the plaintiff is entitled to rendition of accounts and therefore, an issue to this effect is required to be framed for proper adjudication of the present suit.
13. The Court while framing an issue need not go into the fact that whether any of the parties would be ultimately able to prove the aforesaid issue or not. Therefore, the submission of the defendant that the defendant is maintaining any accounts or not is not relevant at this stage.
14. Undoubtedly, there is an inordinate delay on behalf of the plaintiff in moving the present application. However, in view of the provisions of Order XIV Rule 5 of the CPC, an application for framing additional issues cannot be rejected only on the ground of delay, if otherwise, the Court is of the view that additional issues are required to be framed in the facts and circumstances of the case and such issues are necessary for determining the controversy between the parties.
15. In view of the above, I am of the considered view that the additional issue as sought to be framed is essential for the just and effective adjudication of the controversy in the present case and therefore, has to be framed.
16. Filing of the aforesaid application in a belated manner has caused delay in the recording of evidence. Hence, the plaintiff is directed to pay costs of Rs.50,000/- to the defendant.
17. Accordingly, the present application is allowed.
BANSAL I.A. 5071/2023 (O-XI R-5 of CPC)
18. The present application has been filed on behalf of the plaintiff under Order XI Rule 5 of the Civil Procedure Code, 1908 (CPC) as applicable to commercial suits under the Commercial Courts Act, 2015 seeking to placing on record additional documents.
19. Notice in the application was issued on 15th March, 2023 and reply has been filed on behalf of the defendant.
20. By way of the present application, the plaintiff seeks to place on record the documents, as provided in paragraph 7 of the application.
21. Senior counsel for the plaintiff submits that the aforesaid documents are sought to be filed to counter the case set up by the defendant in its written statement and hence, the said documents could not be filed along with the plaint. It is further submitted that the aforesaid documents are being filed in terms of Section 55(2) of the Copyright Act, 1957 to show presumption of ownership of copyright of the plaintiff in respect of the sound recordings and underlying literary and musical works.
22. It is further submitted that the documents now sought to be filed are relevant and necessary for the adjudication of the present case. The recording of evidence is yet to begin in the present case and therefore, no prejudice would be caused to the defendant if the aforesaid documents are taken on record. Reliance is placed on the following judgments:
(i) Jai Pal Shishodia v. Poonam Rathore, 2012 SCC OnLine Del
(ii) Atcom Technology Co. Ltd. v. Rahul Gupta, 2023 SCC OnLine
23. In the reply to the present application, the submissions made on behalf of the defendant are as follows: i. It was the plaintiff’s obligation to establish title in the works that are subject matter of the present suit at the time of filing the suit and therefore, the plaintiff should have filed the aforesaid documents along with the plaint. Reliance is placed on the e-mail dated 27th December, 2016 sent by the defendant to the plaintiff, where the defendant had called upon the plaintiff to supply the catalogue of its entire repertoire. ii. Reliance is also placed on an earlier suit, being CS(COMM) 3/2017 filed by the defendant against the plaintiff on 2nd January, 2017. The defendant herein, who was the plaintiff in the said suit had specifically stated that the plaintiff in the present suit does not have any rights in respect of its claimed repertoire. iii. The documents sought to be filed by way of the present application are not covered within the scope of Order XI Rule 1 (c) (ii) of the CPC as applicable to commercial suits and the said documents being in power and possession of the plaintiff should have been filed along with the plaint. iv. Without prejudice to the aforesaid submissions, even if the documents were covered within the scope of Order XI Rule 1 (c) (ii) of the CPC as applicable to commercial suits, at the very latest, they should have been filed along with the replication. Therefore, the additional documents cannot be permitted to be taken on record at this stage. v. The plaintiff has failed to show any reasonable cause for not filing the BANSAL aforesaid documents with the replication. Reliance in this regard is placed on the judgments in Nitin Gupta v. Texmaco Infrastructure & Holding Limited, 2019 SCC OnLine Del 8367, Bela Creation Pvt. Ltd. v. Anuj Textiles, 2022 SCC OnLine Del 1366 and Rishi Raj v. Saregama India Ltd., 2021 SCC OnLine Del 4897.
24. I have heard the counsels for the parties.
25. At the very outset, reference may be made to some of the relevant dates in the present suit.
DATE EVENT 19th January, 2017 Suit was filed. 13th July, 2017 Written statement was filed. 13th February, 2018 Replication was filed. 28th November, 2019 Issues were framed. 28th September, 2020 Evidence by way of affidavit was filed. 13th March, 2023 The present application was filed.
26. Now, a reference may be made to the relevant provisions of Order XI Rule 1 (1), (4) and (5) of the CPC as applicable to commercial suits: “1. Disclosure and discovery of documents (1) Plaintiff shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint, including:- (a) documents referred and relied on by the plaintiff in the plaint; BANSAL (b) documents relating to any matter in question in the proceedings, in the power, possession, control or custody of the plaintiff, as on the date of filing the plaint, irrespective of whether the same is in support of or adverse to the plaintiff’s case;
(c) nothing in this Rule shall apply to documents produced by plaintiffs and relevant only-
(i) for the cross-examination of the defendant’s witnesses, or
(ii) in answer to any case set-up by the defendant subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his memory.
(4) In case of urgent filings, the plaintiff may seek leave to rely on additional documents, as part of the above declaration on oath and subject to grant of such leave by Court, the plaintiff shall file such additional documents in Court, within thirty days of filing the suit, along with a declaration on oath that the plaintiff has produced all documents in its power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by the plaintiff and that the plaintiff does not have any other documents, in its power, possession, control or custody. (5) The plaintiff shall not be allowed to rely on documents, which were in the plaintiff’s power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of Court. Such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint.”
27. A perusal of the aforesaid provisions would show that in all commercial suits, the plaintiff is obliged to file a list of documents and photocopies of documents in its power, possession, control or custody pertaining to the suit along with the plaint. These documents would include documents referred and relied in the plaint as well as documents relating to BANSAL any matter in question in the proceedings, even if the same is adverse to the plaintiff’s case.
28. Sub-Rule (1) (c) provides certain exceptions to the aforesaid Rule. In terms of Sub-Rule (1) (c) (ii) of Order XI Rule 1, an exception is provided in respect of the documents, which are in answer to any case set up by the defendant subsequent to the filing of the plaint.
29. Sub-Rule (5) mandates that the plaintiff shall not be allowed to rely on documents which were in the plaintiff’s power, possession, control or custody and not disclosed in the plaint and nor filed within the extended period as provided in sub-Rule (4) except with the leave of the Court and upon showing reasonable cause for the same.
30. In Nitin Gupta (supra), relied upon by the defendant, a Co-ordinate Bench of this Court had observed as under: “38. Unless, the Commercial Divisions, while dealing with the commercial suits, so start enforcing Rules legislated for commercial suits, and refuse to entertain applications for late filing of documents, especially with respect to documents of suspicious character and continue to show leniency in the name of ‘interest of justice’ and ‘a litigant ought not to suffer for default of advocate’, the commercial suits will start suffering from the same malady with which the ordinary suits have come to suffer and owing whereto the need for the Commercial Courts Act, 2015 was felt. Commercial Division is thus not required to entertain or allow applications for late filing of documents, without any good cause being established for non-disclosure thereof along with pleadings. The plaintiff herein has utterly failed in this regard. The application nowhere explains as to why the plaintiff, if had obtained the said letter from the defendant, did not remember the same and make disclosure of the same at the time of filing the police complaint and/or at the time of filing of this suit, even if the letter had been misplaced or was not immediately available. The form prescribed for filing affidavit of BANSAL documents requires a litigant in a commercial suit to, even if not immediately possessed of a relevant document, disclose the same. A litigant who fails to do so and also does not satisfy the Court while seeking to belatedly file the document, why no disclosure of such document was made, cannot be permitted to so file documents.”
31. In Rishi Raj (supra), a Co-ordinate Bench of this Court was dealing with an application for filing additional documents by the plaintiff after the issues had been framed. The plaintiff sought to place on record certain agreements which could not be filed due to inadvertence. Relying upon the judgment of the Supreme Court in Sudhir Kumar @ S. Baliyan v. Kumar G.B., 2021 SCC OnLine SC 734, the Co-ordinate Bench dismissed the application on the ground that no reasonable cause was given by the plaintiff for not filing the additional documents with the plaint. Inadvertent error could not be a reasonable cause for taking on record additional documents three years after the suit was filed and when issues in the suit had already been framed.
32. In Bela Creation (supra), another Co-ordinate Bench of this Court relying upon the judgment of the Supreme Court in Sudhir Kumar (supra) upheld the order of the Trial Court dismissing the application for additional documents filed on behalf of the defendant. The Court rejected the ground of negligence of the previously engaged counsel, for not filing the documents with the written statement. It was further observed that “reasonable cause” refers to a cause which was outside the control of the party seeking to file additional documents.
33. On behalf of the plaintiff, reliance is being placed on the judgment of a Division Bench of this Court in Jai Pal Shishodia (supra) to submit that BANSAL the purpose of trial of a case in India is to discover the truth.
34. The aforesaid judgment is of the year 2012, much before the amendments made in the Civil Procedure Code with regard to commercial disputes. Therefore, the aforesaid observations would have limited application in the context of the present case.
35. Reliance is also placed on the judgment of a Co-ordinate Bench of this Court in Mohd. Islamuddin (supra). In the said case, the plaintiff had given an explanation that the plaint was filed during the currency of Covid- 19 pandemic, during which period it was difficult to contact the counsel. No such cause, much less any other cause has been given by the plaintiff in the present case.
36. Similarly, reliance placed by the plaintiff on the judgment of a Co- Ordinate Bench of this Court in Atcom Technology (supra), is also misplaced. Once again in the aforesaid case, the defendants had stated in the application for taking on record additional documents that the written statement was filed on an urgent basis during Covid-19 pandemic and therefore, certain documents were missed out and could not be filed with the written statement. No such reasons have been given in the present application.
37. At this stage, a reference may be made to the relevant passages form the application, which are set out below: “7. That therefore, in answer to the case set up by the Defendant in its Written Statement subsequent to the filing of the Plaint, the Plaintiff is seeking the leave of this Hon’ble Court to file the following documents marked as Document-D[1] (Colly): a. Inlay Card of the Cinematograph Film “Sambandh” b. Inlay Card of the Cinematograph Film “Gunga Jumna” c. Inlay Card of the Cinematograph Film “Mr Romeo”
BANSAL d. Inlay Card of the Cinematograph Film “Malavarcha Phool” e. Extract from the website of the Central Board of Film Certification for the Cinematograph Film “Gunga Jumna”
8. That the necessity for filing the aforesaid documents has only arisen in view of the case set out by the Defendant in its Written Statement. The Plaintiff is filing the aforesaid documents in order to counter the case set up by the Defendant and hence the said documents could not have been filed/disclosed at the time of the filing of the present suit. Therefore, the Plaintiff has set out a reasonable cause for the non-disclosure of the aforesaid documents at the time of the filing of the Plaint.
9. That the additional documents sought to be brought on record by the Plaintiff by way of the present application are relevant and necessary for the adjudication of the present dispute, as they establish the presumption of ownership of the copyright in favour of the Plaintiff.
10. That present suit is at the stage of the recording of evidence and the Plaintiff has not yet begun to lead its evidence in the present suit. Therefore, no prejudice would be caused to the Defendant if the present application is allowed as the Defendant would have ample opportunity to counter the same as a part of its evidence affidavit. However, grave loss will be suffered by the Plaintiff if the same is not allowed.”
38. The plaintiff has invoked sub-Rule (1) (c) (ii) of Order XI Rule 1 read with sub-Rule (5) of Order XI Rule 1 of the CPC to file additional documents. As is evident from the passages set out above, it has specifically been pleaded by the plaintiff that the aforesaid documents are being filed to counter the case set up by the defendant and hence, could not be filed at the time of filing of the suit. However, no explanation has been given by the plaintiff as to why the aforesaid documents were not filed along with the replication. Further, the plaintiff has failed to provide any reasonable cause BANSAL for filing the aforesaid documents at this stage, 5 years after the replication was filed.
39. In a commercial suit, the plaintiff cannot be permitted to file additional documents at any stage of the suit on the ground that the same are in response to the case set up by the defendant in the written statement. Permitting a party to file additional documents at any stage would make a complete mockery of Order XI of the CPC as applicable to commercial suits. The whole object of the aforesaid provisions of the CPC pertaining to commercial suits would be defeated if a party is permitted to file additional documents at any stage of the suit.
40. It is also relevant to note that the documents sought to be filed by the plaintiff are towards presumption of ownership of copyright in the works that are the subject matter of the present suit. Admittedly, the said documents were in power and possession of the plaintiff when the suit was filed. The issues framed by the Court on 28th November, 2019 also show that the onus to prove, whether the defendant is infringing the copyright of the plaintiff’s songs, is on the plaintiff. Therefore, even otherwise, the aforesaid documents ought to have been filed by the plaintiff along with the plaint.
41. In view of the observations made above, the present application is dismissed.
42. In view of the aforesaid observations, an additional issue is framed in the present suit in the following terms: vi) Whether the plaintiff is entitled to a decree of rendition of accounts? (OPP)
43. Evidence by way of affidavit has already been filed on behalf of the BANSAL plaintiff.
44. Counsel for the plaintiff submits that no additional affidavit of evidence would be required to be filed on account of framing the aforesaid additional issue.
45. I am informed by the counsels for the parties that the matter is listed before the Local Commissioner for recording of the evidence on 4th May, 2023 and 10th May, 2023.
46. In view thereof, the period of three months for recording of evidence would commence from 4th May, 2023.
47. List before the Joint Registrar on 28th August, 2023 for monitoring of the recording of evidence. AMIT BANSAL, J. APRIL 28, 2023 at/sr BANSAL