1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Contempt Petition No. 60 of 2007 in Notice of Motion No.21854 of 2005 in Suit No.2598 of 2005 Filmkraft Productions (India) Ltd. ..Petitioners vs. Bimmini Special Effects Studios and another ..Respondents Mr.Virendra Tulzapurkar, Sr. Advocate with Mr.A.Dawar i/b M/s Thakore Jariwala and Associates for petitioners. None for respondents. CORAM: S.J.KATHAWALLA J. 18th July, 2009 P.C. 1 Heard Counsel appearing for the petitioners. 2 None for the respondent though served. 3 Affidavit of service taken on file. 4 I have perused the affidavit of service filed on behalf of the petitioners. I have also perused the affidavit dated July 2 2009. On perusal of the affidavits, it is deciphered that the respondents have been served with a copy of the order dated 3rd October, 2005 and is aware of the ad-interim injunction. Court notice has also been issued. 5 The present petition is filed to punish the respondents herein for having committed contempt of the order dated 3rd October, 2005 passed by this Court. The respondent no.1 is a company/corporate concern and the respondent no.2 is an office bearer and person in charge of the affairs of the respondent no.1 company. 6 By the present petition, the petitioner seeks to punish the respondents for having committed breach of the order dated 3rd October, 2005 passed by this Court. The facts as the record shows are as under: 7 Under an agreement dated 14th November,2001 signed between the petitioner and the respondent no.1, the respondent no.1 3 agreed to develop an alien character known as Jadoo for the petitioners in connection with the feature film under production by the petitioners. Section 3 of the Agreement provides that the entire ownership of all things, characters and work vest in the petitioners except the animistic head and costumes. The admitted position before me is that the petitioners have discharged their obligations in the matter. The respondents, however, sought to commit breach of the agreement resulting in the petitioners filing a suit in this Court seeking to protect inter-alia their rights in the matter. Ad- interim reliefs were granted in favour of the petitioners. By order dated 3rd October, 2005 passed by this Court, prayer clause (b) of the Notice of Motion has been allowed, Prayer clause (b) of the Notice of Motion reads as follows: (b) that pending the hearing and final disposal of the Suit, this Hon ble Court be pleased to pass an order and injunction 4 restraining the defendants by themselves, their servants, agents, representatives and otherwise howsoever from in any manner infringing the copyright of the plaintiffs in the said work  JADOO and character JADOO by : (i) from in any manner exploiting, exhibiting the said work JADOO in any material form; (ii) from in any manner exploiting the said work by assigning or distribution in favour of any third party in any manner whatsoever and/or by communicating and/or by performing the said work in public; (iii) from in any manner making copies of any work or film or any other depiction of the said character JADOO ; (iv) from in any manner committing breach of the Agreement dated 14th November, 2001 Exhibit A hereto, including Clause 14 thereof by initiating proceedings in Courts other than in India; (v) from in any manner interfering in any manner with the rights of the plaintiffs in respect of the said work viz. the character, Jadoo and/or in any manner interfering with the exercise of the rights of the plaintiffs assigned in their favour under the Agreement Exhibit A hereto by the plaintiffs or any other authorized third 5 party claiming from under or through the plaintiffs including any licensee and/or sub- licensee of the plaintiffs viz. the persons claiming through such licensees and from in any manner misrepresenting to such licensees of the plaintiffs and/or third parties claiming through the licensees by e-mail and/or letters or in any manner whatsoever that defendants are owners of copyright in the said work, viz. the character JADOO . 8 Thus, by the said prayer clause (b), injunction was granted restraining the respondent no.1 from in any manner dealing with the copyrights in respect of the character JADOO and/or interfering with the rights of the petitioners in respect of the character JADOO . The respondent no.1 had also filed an affidavit in reply disputing the case of the petitioners when the ad- interim order was passed. However, the case of respondent no.1 was rejected. 9 The case of the petitioner is that thereafter, the respondents have committed breach of the petitioner s copyrights by 6 inviting advertisements for auction of the character. The said advertisements have appeared on the internet under the signature of the respondent no.2 who claims to be the owner and copyright licensor. At this point, it is relevant to mention that the respondent no.2, though not a party to the original suit, has been joined as respondent no.2 herein since it is the respondent no.2 who has signed the agreement with the petitioners on behalf of respondent no.1 being agreement dated 14th November 2001 referred to above. Thus, the respondent no.2 himself was a party to the agreement when the rights were assigned in favour of the petitioners. 10 The record before me shows that the copy of the order was served on the respondents vide several emails and letters which are annexed to the affidavit of service. In fact, the respondent no.2 also, when given notice of the order as passed vide letter dated 7th October 2006, which was received by him in Australia on 23rd October 7 2006, returned the said letter dated 7th October 2006 to the petitioners under cover of his letter dated 23rd October 2006. The above conduct of the respondent no.2 shows that he was aware of the order as passed. Even after the above, once again, the petitioner s Advocates sent several letters and e-mails to the respondents calling upon them to comply with the orders as passed. However, the respondent no.2 persisted in his conduct and issued a notice of dishonour and claimed ownership in the copyright in respect of the said alien character. The said claim of the respondent no.2 is an assertion of his rights which this Court has restrained the respondents from claiming. 11 The petitioner s case is that the entire copyright in respect of the exploitation of the alien character vests in the petitioner except for the animatic heads, components and costumes. The same is apparent from the reading of paragraph 4 of the petition and section 2 of the agreement. 8 The contempt alleged against the respondents is that of inviting claims as against the animistic alien character and also claiming of copyrights in respect of the character. Jadoo as assigned therein and the respondent no.2 in the affidavit at Exhibit-K made a positive assertion that they have not assigned any copyrights in favour of any person/persons. 12 This Court issued a show cause notice to the respondents, which was also attempted to be served on the respondents. The repeated attempts at service shows that the respondents are aware of the order. The fact that the respondents have also contested at the stage of Notice of Motion shows that they were aware of the proceedings as filed. 13 From a perusal of paragraph 11, it is clear that the respondents are not only dealing with the animatic components but also the entire copyrights which they are not entitled to do in view of the said order. The respondents are bound by the said order 9 and the respondent no.2 though not a party to the suit is clearly a person in-charge of the affairs of the respondent no.1 (also being the person who has designed the character for the petitioners) and in my opinion, the person liable to be punished for contempt. 14 I, therefore, hold that the respondents have willfully breached the order of this Court dated 3rd October 2005. The conduct of the respondents is contumacious and shows willful disobedience of the orders of this Court. In my opinion, both the respondents are liable to be punished for committing contempt. 15 In view of the aforestated facts and circumstances, I pass the following order : The contempt petition is made absolute in terms of prayer clause (a). Respondent no.1 shall pay a fine of Rs.2000/- whereas respondent no.2 is sentenced to undergo simple imprisonment for a period of two months for having committed contempt 10 of the order of this Court dated 3rd October, 2005 and shall also pay a fine of Rs.2000/-. 16 Contempt petition is accordingly disposed of. (S.J.KATHAWALLA J.)