Super Cassettes Industries Pvt Ltd v. Kumaon Broadband Company Pvt Ltd

1. The Plaintiff has filed the present suit seeking permanent injunction restraining infringement of copyright, damages and rendition of accounts. The case of the Plaintiff is that it is the owner of a large repertoire of sound recordings and underlying works including literary and musical works. The Plaintiff has over 20,000 Hindi film and non-film songs and around 50,000 songs in regional languages in its library. The Plaintiff claims that it has launched a large number of well-known singers, music directors and video directors under its banner.

2. The present suit is filed against the Defendant who is a cable operator operating under the name `Kumaon Broadband Company Pvt Limited’ and providing cable TV services in Haldwani, Uttarakhand. It runs two cable channels - KBC Music and KBC Uttarakhand. The Plaintiff received information through its investigator that the Defendant, through its two cable channels, was communicating various sound recordings of the Plaintiff 2019:DHC:1376 without a license from the Plaintiff. The Plaintiff got recordings of the Defendant’s broadcasts made through its investigator and issued a cease and desist notice on 26th May, 2014. The Defendant chose not to reply, and hence the present suit came to be filed.

3. On 4th August, 2014 an interim injunction was granted in the following terms:- “Accordingly, the defendant, its officers, servants, agents and representatives are restrained from recording, distributing, broadcasting, public performance/communication to the public or in any other way exploiting the cinematograph films, sound recordings and/or literary works (lyrics) and musical works (musical composition) or other works or parts thereof that are owned by the plaintiff including all works whereon the plaintiff has shown its copyright under Section 52A of the Act or doing any other act that would lead to infringement of the plaintiffs copyright, through its Ground Cable Network.”

4. On 21st November, 2014, the Defendant entered appearance and sought time to file its written statement. Vide I.A. No. 10661/ 2015, the Defendant sought condonation of delay in filing the written statement. The delay was to the tune of 117 days. On 18th May, 2015, the Ld. Joint been filed and no written statemen had been filed till date, dismissed the application and closed the right of the Defendant to file the written statement. The Defendant then file a chamber appeal challenging the said order of the Joint Registrar dated 18th May, 2015. The said chamber appeal was dismissed on 25th July, 2016. Thereafter, the Court on 1st May, 2017 observed that since the right to file written statement was closed, no issue arose, and only evidence by way of affidavit was directed to be filed by the Plaintiff. The Plaintiff filed the affidavits of two witnesses, PW-1 and PW-

5. PW-1 was cross-examined by the Defendant. However, thereafter PW -2 was not cross examined. His affidavit has been tendered. The evidence of the Plaintiff stands closed. The Defendant has not appeared since 13th August, 2018.

6. The Defendant’s written statement being not on record and the Defendant having chosen not to file any evidence, no further liberty can be given to the Defendant to file any evidence. Accordingly, final arguments have been heard in the matter today.

7. Mr. K. K. Khetan appearing for the Plaintiff submits that the Defendant is a well known cable operator in Haldwani-Nainital, Uttarakhand. The Defendant runs two cable channels KBC Music and KBC Uttarakhand. The investigator on behalf of the Plaintiff has placed on record CD recording showing the telecast of various songs, copyright on which is owned by the plaintiff. He further submits that the Defendant has failed to take a license and is hence liable to be injuncted.

8. The Court has perused the pleadings, documents and the evidence on record. A perusal of the evidence led on behalf of the Plaintiff shows that the Plaintiff is a company which is in the music business. Initially, it used to sell various recordings in the form of cassettes, CD, DVDS etc. However, in view of the change in technological means of accessing music, one of the major sources of revenue for the Plaintiff is through copyright licensing of music. The Plaintiff grants licenses to almost all the well known radio and television stations, broadcasters, as also cable operators and multi operators which broadcast its sound recordings. PW-1 appearing on behalf of the Plaintiff has placed on record various assignment deeds for movies, sound recordings and other works which are owned by the Plaintiff. The assignment deeds are exhibited as Exhibits PW-1/7 to PW-1/10. The said assignment deeds cover movies such as Khakee, Salaam-e-Ishq, Hum Dil De Chuke Sanam and Muskaan. PW-1 has also deposed that he engaged the services of the investigators Mr. Sunil Puri and Mr. Arun Kumar for recording the infringing broadcasts of the Defendant. PW-1 has placed on record the CD recording and the cue sheet, which shows that the Defendant has broadcasted the following songs on its two cable channels, namely, KBC Music and KBC Uttarakhand. i) Hum Dil De Chuke Sanam ii) Teri Galiyon Mein Na Rakhenge Kadam iii) Volume High Karle iv) Aisa Jaadu Dala Re v) Jogi Mahi vi) Dil Lene Ki Rut Aayi vii) Ishq Mera Zindagi Hai viii) Gaata Rahe Mera Dil ix) Apne Pyaar Ki x) Tujhe Chune Ko Dil Kare xi) Zindagi Ki Talash Mein xii) JLO Live in 1999 Fashion xiii) Yeh Dooriyan xiv) JLO Live in 1999 Woma xv) Pyaar, Ishq aur Mohabbat xvi) Lafangey Parindey xvii) Ankhiyo Me Jadoo Tera xviii) Hamein Tumse Hua Hai Pyaar xix) Jaane Man Chupke Chupke xx) Dil Ki Hai Tamanna xxi) Neend Kabhi Rehti Thi xxii) Salaam-E-Ishq xxiii) Arre re Arre xxiv) Aayega Mazaa Ab Barsaat Ka xxv) Hai Twele Katu Bhalo xxvi) Baduli Laska Kamar xxvii) Teri Kaan Mein Double Jhumka xxviii) Bhaguli xxix) Bombay Wali Chaal xxx) Zarra Paani Pila De xxxi) Baith Sayali Motor Maa xxxii) Foak xxxiii) Chham Kami Pam Jeba xxxiv) Baith Sayali Motor Maa xxxv) Udi Jammdu Basamiti xxxvi) Tikule Binduli xxxvii)O Himu Tu Gaadi Chalaache

9. The exact timing of the recordings has also been mentioned. The contents of the CD have also been viewed by the Court. A perusal of the CD shows that various songs/sound recordings, copyrights of which are owned by the Plaintiff, have been broadcasted by the Defendant. In the written statement which was filed by the Defendant, though not taken on record, the Defendant does not challenge the copyrights of the Plaintiff. It does not have a licence from the Plaintiff. The written statement clearly admits that KBC Music and KBC Uttarakhand are channels belonging to the Defendant. In paragraph 4.3, 4.[4] and 4.[5] the Defendants states as under:- “4.[3] That the contents of Para 19 of the Suit is denied to the extent that the Defendant is one of the largest Ground Cable Network providers in Uttarakhand including Haldwani, Nainital and have thousands of connections. It is further submitted that the Defendant is a small time Cable operator having limited connections only in the town of Haldwani. 4.[4] That the contents of the Para 20 of the Suit are denied to the extent that the Defendant did not replied to the Legal Notice sent by the Plaintiff. It is further submitted that as soon as the Legal Notice was received by the Defendant, he contacted S.K. Dutta, Deputy Manager of the Plaintiff Company as per the instruction given in the Notice itself and apprised him that the contents of notice are wrong and the Defendant has never played any of the contents as mentioned in the notice and Mr. S.K. Dutta assured the Defendant that he need not to worry about the notice and the Notice is being sent as a matter of routine, hence the Defendant did not prefer to send a written Reply to the Legal Notice. 4.[5] That the contents of Para 21 of the suit are admitted to the extent that the Defendant through their Cable Network provides two channels under the logo of "KBC MUSIC" and "KBC Uttarakhand". It is futher pertinent to mention here that Defendant vide these channels mainly broadcast news and local events such as ramleela, melas and other social and cultural events. It is pertinent to mention here that Hindi songs from commercial films and private albums which form part of the copyright of the Plaintiff are never played on these channels.”

10. The CD and the cue sheet are merely denied by the Defendant. The same are bare denials. In fact, in paragraph 2.2, the Defendant takes a stand that the Plaintiff’s official contacted the Defendant and offered a licence to the Defendant and the Defendant apprised the officials that once digitization is completed, it will offer to its customers the Plaintiff’s channels subject to payments of Rs. 30/- per month, per connection. The relevant paragraph is set out here below:- “2.[2] That the Plaintiff itself approached the Defendant vide letter dated 14.05.2014 asking it to apply for its license @30 per month per connection, on which the Defendant contacted the local representative of the company and showed its inability to play the contents of the Plaintiff Company on payment of such an amount per connection. The Defendant apprised the local representative that in analogue system, it is not' possible for the operator to charge per channel from its customers. The Defendant also apprised the officials of the Company that digitization of the cable network is going on and once the system is complete, it will buy the contents and give its consumers option to view the same subject to payment of Rs. 30 per month.” The above averment of the Defendant clearly shows that the Defendant does not challenge either the rights of the Plaintiff nor the need to take a license. The Defendant wishes to merely postpone the taking of the license.

11. The investigator (PW-2), has stated in his affidavit that upon receiving instructions from PW-1, he recorded the CD on 16th May, 2014 along with the cue sheet. He deposes that the said recordings were made by one Mr. Arun Kumar, who has since left the Plaintiff, in his presence. The model of the DVD recorder and the other details have also been mentioned in paragraph 8 of the affidavit. The Defendant has chosen not to cross examine PW-2.

12. The cross examination of PW-1, which was conducted by the Defendant, reveals that in the cross examination, the only questioning is in respect of whether the DVD recorder itself had been placed on record. Under Section 65B of the Indian Evidence Act, 1872 there is no requirement to place the machine DVD recorder on record so long as the witness sufficiently establishes that the requirements of proving electronic records have been complied with and that the recorder was in working condition. A perusal of the pleadings and the evidence on record clearly shows that the Defendant is guilty of infringement of the Plaintiff’s copyrights. The Defendant does not have any license. It has telecasted/broadcasted the Plaintiff’s copyrighted works on its channels, KBC Music and KBC Uttarakhand. Accordingly, the suit is decreed in terms of the paragraph 37

(i) of the plaint.

13. The written statement of the Defendant shows that various attempts were made by the Plaintiff to contact the Defendant and to offer it an opportunity to take a license, however the said opportunity has not been availed by Defendant. Subsequently, a legal notice was also issued, which was not replied to. It is clear that the Defendant’s act of using and broadcasting the Plaintiff’s works without a license is deliberate and conscious. After having acquired knowledge, the Defendant ought to have immediately stopped the infringing use. Obviously the Defendant chose to contest the matter initially, and thereafter stopped appearing. Under these circumstances, the suit is decreed for damages of Rs. 10,00,000/- along with costs in actuals. Decree sheet be drawn.

PRATHIBA M. SINGH JUDGE FEBRUARY 28, 2019