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Date of Decision: 19th September, 2016 CS(OS) No.324/2008
MOSERBAER INDIA LTD. ..... Plaintiff
Through: Mr. D.K. Singh, Mr. Saurabh Agrawal & Ms. Komal Mundhra, Advs.
Through: Mr. D.K. Thakur, Adv.
JUDGMENT
1. The plaintiff has instituted this suit to restrain the defendant situated at Chennai from manufacturing, selling, circulating, distributing or giving on hire etc. any video cassettes, VCDs, DVDs, LCDs in respect of 70 Telugu films detailed in the plaint and for declaration that the defendant does not have right of any nature whatsoever in the said films and for ancillary reliefs.
2. The suit was entertained and vide ex parte ad-interim order dated 19th February, 2008, the defendant restrained from manufacturing, selling, circulating in any manner the video cassettes, VCDs, DVDs and LCDs in 2016:DHC:6619 respect of the said 70 Telugu films. Vide the same order a Commissioner was also appointed to visit the premises of the defendant and to seize and take into custody the said cinematographic films, Masters, Inlay Cards and Music Cassettes of the said films.
3. The Commissioner so appointed reported seizure of VCDs, DVDs and box packs of the said films and delivery thereof on superdari to the representative of the defendant.
4. The defendant appeared and applied under Order XXXIX Rule 4 CPC and filed a written statement.
5. Vide judgment dated 18th February, 2010 the application of the defendant under Order XXXIX Rule 4 allowed, the application of the plaintiff for interim relief was dismissed and the ex parte ad-interim order dated 19th February, 2008 vacated inter alia observing i) that though the plaintiff had filed the entire chain of agreements with respect to almost each of the 70 films, elucidating how the rights in each film came to be vested in the plaintiff but there were certain films (nine in number) with regard to which the plaintiff‟s claim was suspect due to certain agreements in the chain of agreements having not been filed and certain documents being unclear and illegible; ii) that the defendant had filed two suits pending in the District Court at Madurai and in the High Court of Madras respectively and some of the films subject matter of the present suit were subject matter of those suits also; iii) that the suit at District Court Madurai had as its subject matter 46 movies and the suit in the High Court of Madras had as its subject matter 80 movies; iv) that of the 70 movies subject matter of the present suit, 18 were the subject matter of the two suits at Madurai and Madras; v) that the suits at Madurai and Madras were between West Top Investment (I) Pvt. Ltd., from whom the plaintiff claims assignment of the copyright in the 70 films, on the one hand and one of the partners of the defendant on the other hand; vi) that the claim of the defendant was that it held prior and better assignment in several of the 70 movies and the documents filed by the defendant indeed showed the defendant to be having licences / agreements as regards all the 70 film titles subject matter of the present suit; vii) that the plaintiff had failed to disclose ongoing business relationships with the defendant and had instituted the suit as if the defendant was merely a stranger; viii) that the plaintiff had also suppressed the history of the prior litigation pending in the courts at Madurai and Madras between West Top Investment (I) Pvt. Ltd. from which the plaintiff claims title to the 70 films and the defendant; ix) that prima facie it appears that the defendant had obtained exclusive copyright for the VCDs / DVDs of many of the films directly from the purchaser much prior to the plaintiff and in some cases the defendant had acquired exclusive right to the films from the distributors who had acquired video rights from the original purchasers; x) that the balance of convenience was in favour of the defendant; and, xi) that the plaintiff had failed to comply with Order XXXIX Rule 3 of the CPC. The said order has attained finality.
6. Thereafter none appeared for the defendant and the defendant was vide order dated 2nd June, 2010 proceeded against ex parte and the plaintiff permitted to lead ex parte evidence. Though the defendant thereafter appeared on 19th February, 2011 and stated that the defendant will be making an application for setting aside of the order proceeding ex parte against it but did not do so. The plaintiff also however failed to lead ex parte evidence despite several opportunities and on 21st September, 2012 and on 21st November, 2012 sought adjournment on the ground that it was negotiating a compromise / settlement with the defendant. The counsel for the defendant has been appearing since 21st November, 2012 but did not make any application for setting aside the order proceeding ex parte against it.
7. The defendant ultimately filed IA No.9807/2014 and IA No.9808/2014 for recalling of the ex parte orders against it and for condonation of the delay in applying thereof. The said applications were dismissed vide order dated 19th December, 2014.
8. The plaintiff has filed affidavit by way of examination-in-chief of its Product Manager and the matter was posted for final arguments. I may notice that though the counsel for the defendant whose written statement is on record could have sought an opportunity to cross examine the said witness, even without the order proceeding ex parte against the defendant having been set aside, as no substantive proceeding had taken place since the defendant was proceeded against ex parte and the defendant was / is at liberty to join proceeding at any stage, but did not do so. Resultantly, the ex parte evidence led by the plaintiff remains unrebutted.
9. It appears that the counsel for the plaintiff addressed ex parte arguments on 18th January, 2016. Vide order of the said date attention of the counsel for the plaintiff was drawn to Indian Performing Rights Society Ltd. Vs. Sanjay Dalia (2015) 10 SCC 161 and it was enquired from the counsel for the plaintiff whether the plaintiff had any office at Chennai where the defendant is situated and the plaintiff granted an opportunity to file an affidavit in this regard.
10. The plaintiff in response thereto has filed affidavit of its legal officer deposing “that the plaintiff has a defunct office located at Chennai, Tamil Nadu, which is essentially a sales office, wherein no other work such as accounts, logistics, etc. are carried out there, and the said office has only 6 employees. The said office is merely a communication address for Chennai. There is not much activity that is carried out at the branch office at Chennai, inasmuch as the business of the plaintiff has almost come to a grinding halt, because of the advancement and change in technology and the CD/DVD business has also become obsolete.”
11. Thereafter on 25th April, 2016, the following order was passed:
12. Thereafter on 9th August, 2016, the counsel for the plaintiff was unable to satisfy as to how the plaintiff in its ex parte evidence had proved its case and filed IA No.10446/2016 and IA No.1447/2016 seeking permission to file fresh affidavit of ex parte evidence. Vide order dated 30th August, 2016 the plaintiff was granted permission to file a fresh affidavit of evidence. Though the said affidavit was filed but remains under objections. The counsel today, has not urged anything in this respect.
13. The counsel for the plaintiff and the counsel for the defendant though ex parte have been heard.
14. The counsel for the plaintiff states that the suit is entitled to be decreed as the ex parte evidence led by the plaintiff remains un-rebutted. Reliance is placed on my order dated 6th September, 2016 in CS(OS) No.1625/2007 titled Moserbaer India Ltd. Vs. Movie Land decreeing that suit (ex parte). Per contra, the counsel for the defendant again relying on Indian Performing Rights Society Ltd. supra contends that this Court does not have territorial jurisdiction.
15. The counsel for the plaintiff contends that the order dated 25th April, 2016 reproduced hereinabove having attained finality, it is not open to the counsel for the defendant to today urge that this Court does not have territorial jurisdiction.
16. The order dated 25th April, 2016 being in reference to the plea in para 25 of the plaint, I have enquired from the counsel for the plaintiff whether the witness of the plaintiff has proved that the infringing material is being sold / circulated by the defendant within the territorial jurisdiction of this Court.
17. The counsel for the plaintiff has replied in the negative.
18. As far as the objection of the counsel for the defendant to territorial jurisdiction is concerned, a Division Bench of this Court in Ultra Home Construction Pvt. Ltd. Vs. Purushottam Kumar Chaubey 227 (2016) DLT 320 and in RSPL Ltd. Vs. Mukesh Sharma MANU/DE/1862/2016 has on an analysis of Indian Performing Rights Society Ltd. supra held that taking advantage of the provisions of Section 134(2) of the Trade Marks Act, 1999 and Section 62(2) of the Copyright Act, 1957 a plaintiff i) which is a corporation and which has a sole office can institute a suit at the place of the sole office even if the cause of action has arisen at a different place; ii) which has a principal office at one place and a subordinate or branch office at another place and the cause of action has arisen at the place of principal office may sue at the place of the principal office but cannot sue at the place of the subordinate office; iii) which has a principal office at one place and cause of action has arisen at a place where its subordinate office is located, would be deemed to carry on business at the place of subordinate office and not at the place of principal office; and, iv) where the cause of action neither arises at the place of principal office nor at the place of subordinate office but at some other place, would be deemed to carry on business at the place of its principal office and at the place of the subordinate office.
19. Applying the aforesaid, it has been enquired from the counsel for the plaintiff that since the cause of action has arisen at Chennai and plaintiff has admitted having office at Chennai, how can the plaintiff invoke the jurisdiction under Section 62(2) supra of this Court even if the principal office of the plaintiff is within jurisdiction of this Court.
20. The counsel for the plaintiff contends that the office at Chennai is merely a sales office.
21. No such distinction has been carved out in Indian Performing Rights Society Ltd. supra.
22. The counsel for the plaintiff then contends that the plaintiff in the plaint in para no.25 has also pleaded cause of action within the territorial jurisdiction of this Court.
23. However that has not been proved by the plaintiff.
24. The counsel for the plaintiff then states that the finding in the order dated 25th April, 2016 supra of this Court having cause of action would operate res judicata.
25. I am afraid not.
26. The plaintiff, as aforesaid, thereafter took opportunity to lead evidence but did not lead evidence and averment in the pleadings without being proved cannot be relied upon.
27. I have even otherwise perused the affidavit by way of ex parte evidence of the plaintiff. The plaintiff therein has proved having acquired copyright to the 70 films. The defendant having chosen not to contradict the plaintiff, the said evidence is to be believed.
28. However the plaintiff has to be non-suited on the ground of territorial jurisdiction. Dismissed. No costs. Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J. SEPTEMBER 19, 2016 „gsr‟