- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.442 OF 2004 IN NOTICE OF MOTION NO.2003 OF 2004 IN SUIT NO.1721 OF 2004 Sanjay H. Goradia ...Appellant v/s. 1.Ashok V. Patole & ors. ...Respondents ... Shri Virendra Tulzapurkar, Sr.Counsel with Shri Girish Desai, Ms.Mili V. Thakkar and Mr.Rajan V. Thakkar and Ms.S.V.Thakkar for the Appellant. Mr.Jai Chinoi, Sr.Counsel with Ms.Sonal, Ms.S.T.Shaikh and Mr.R.Sahu i/b S.K.Srivastava & Co. for Respondent No.1. Mr.Shailesh Shah with Mr.Ashok Purohit i/b Zohair & Co. for Respondents Nos.2 & 3. - 2 - ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 21ST JANUARY, 2009 P.C.: 1. By this appeal the Appellant challenges the order dated 9-6-2004 passed by the learned single Judge of this Court in Notice of Motion No.2003 of 2004. That Notice of Motion was taken out by the present Appellant, who is Plaintiff in Suit No.1721 of 2004. The case of the Plaintiff was that the Defendant No.1 has assigned to him the rights of adaptation and performance of his play in three languages i.e. Gujarati, Hindi and English. According to the Plaintiff, the Defendants have committed breach of copy right which was assigned to the Plaintiff. Therefore, in the suit the Plaintiff claims perpetual injunction restraining the Defendants from committing infringement of copy right which was assigned to the Plaintiff and Notice of Motion claiming temporary injunction in similar terms was taken out. - 3 - . The Defendant No.1 filed his written statement and reply. According to the Defendant No.1, there is no assignment as claimed by the Plaintiff in his favour. It was also the case of the Defendant No.1 that assuming that there is an assignment, because of the failure of the Plaintiff to exploit his right within a period of one year in view of the provisions of Section 19(4) of the Copy Right Act, the assignment is extinguished. 2. Notice of Motion was decided by the learned single Judge of this court by order dated 9-6-2004. The learned single Judge rejected the Notice of Motion. 3. We have heard the learned Counsel for both sides. Perusal of the order of the learned single Judge shows that though there is a finding recorded by the learned single Judge that there is assignment of copy right by Defendant No.1 in favour of the Plaintiff, we do not find any reason given in the order for recording that finding. We further find that though the learned single Judge has recorded a finding that because of the failure of the Plaintiff to exploit the rights which was assigned to him within one year, - 4 - the assignment had come to an end because of the provisions of sub-section (4) of Section 19. From the order it appears that the learned single Judge has not taken into consideration the submission made on behalf of the Plaintiff that reading provisions of Section 19, specially sub-section (4) and sub-section (5) thereof along with Section 19A makes it clear that the provisions of sub-section (4) of Section 19 will apply to an assignment which is for a period of five years or less and not to an assignment which is for a period in excess of five years. In our opinion, it was necessary for the learned single Judge, before recording a finding that there is an assignment of copy right in favour of the Plaintiff, to consider the stand taken by the Defendant No.1 that in fact there is no assignment made of any copy right by Defendant No.1 in favour of the Plaintiff and then give reasons why that stand is rejected by the learned single Judge. So far as other aspects of the matter is concerned, in our opinion, it is clear that the provisions of section 19(4) are not happily worded and they need to be construed so that provisions of section 19A and Section 19 both become effective in different situation. The order of the learned single Judge shows that relevant aspects of - 5 - the matter have not been considered by the learned single Judge though, it was submitted before us, they were argued before the learned single Judge. In this situation, therefore, in our opinion, the order impugned in the appeal has to be set aside. However, in our opinion, it will not be appropriate for us to decide the Notice of Motion at this stage in the absence of relevant material being considered by the learned single Judge. In our opinion, therefore, following order would meet the ends of justice. O R D E R (i) The order impugned in the appeal is set aside. (ii) Notice of Motion No.2003 of 2004 is remitted back to the learned single Judge for denovo consideration and decision in accordance with law and in the light of the observations made above. (iii) Appeal disposed of. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)