1 Nms2790-09 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2790 OF 2009 IN SUIT NO.924 OF 2009 Neha Sharad Joshi .. Plaintiff Vs. Sunanda Sampooran Oberoi and Ors. .. Defendants Mr.A.R.Pande for the plaintiff Mr.Pravin K. Samdani, Sr.Advocate a/w Ms.N.S.Nappinai for defendant no.1 Mr.Prakash Shinde i/b M/s.M.Dhruva and Partners for defendant no.2 Mr.Sanjay Kadam i/b M/s.Kadam and Co. for defendant no.3 CORAM : S.C.Dharmadhikari, J. DATE : December 3, 2010 P.C. : 1. This is a notice of motion filed in a suit for a declaration that copyright of the serial Yeh Jo Hai Zindagi and the format of the serial belong to the plaintiff and the defendant nos.4 and 5 and the defendant nos.1 and 2 have no right of whatsoever nature on the copyright of the said serial. It is also prayed that a declaration be issued restraining the act of the defendant nos. 2 Nms2790-09 1 to 3 in proposing to telecast another weekly sitcom Ghar Ki Baat Hai “ ” modelled on the copyright of the serial Yeh Jo Hai Zindagi in the T.V. Channel of defendant no.3. 2. Late Sharad Joshi who expired on 5.9.91 was awarded Padma Shri for his contribution to Hindi Literature. He is the father of plaintiff and defendant nos.4 and 5. His wife Mrs.Irfan Sharad expired in the year 1999 and claiming to be the legal heirs of the late Shri Sharad Joshi who was a writer, satirist and a dialogue and script writer for Hindi films and television, that this suit is filed. 3. The defendant no.1 is the wife of one Shri Sampooran Oberoi who had produced Motion Pictures and T.V. Serials under the banner Art Commercial and which is a proprietory concern and later converted into a Private Limited Company known as Art Commercial Private Limited Company. Defendant no.2 is production and distribution company of Motion Pictures and defendant no.3 is company running T.V. Channel NDTV Imagine Ltd. 4. It is stated that prior to 1984 Late Shri Sharad Joshi was approached for writing a script for T.V. Serials and script and dialogues were written and thereafter defendant no.1's predecessor agreed to produce the serial and that is how the work was prepared and ultimately it was telecasted. It is stated that it was extremely popular and about 67 episodes of the same were shown on the T.V. It is alleged that late Shri Sharad Joshi had never 3 Nms2790-09 surrendered any rights in the script and dialogues but retained them exclusively with him. After his death, neither the plaintiff or defendant nos. 4 and 5 or late wife of Shri Sharad Joshi have surrendered any of these rights. Since the serial was a big hit during his life time and thereafter, it was not telecast, there was no occasion for the plaintiff to move the court of law. However, he learnt that defendant no.1 has permitted defendant no.2 to use the script of late Shri Sharad Joshi which he wrote for the said T.V. serial to enable defendant no.2 to make another serial or film under the name Ghar Ki Baat Hai . “ ” 5. This, the plaintiff came to know on 20.1.2009. It was apprehended that the show will be telecast on the defendant no.3 channel. It is in such circumstances and when the show Ghar Ki Baat Hai was likely to commence that the plaintiff asserted the rights of late Shri Sharad Joshi and contended that he had exclusive copy right in the work and which work could not have been used or utilized by any one, save and except with the permission of plaintiff and defendant nos.4 and 5. Therefore, the notice was sent on 20.1.09 and to which a reply has been received but the defendant nos. 1 and 2 had not been placed any document or letter or record indicating that late Shri Sharad Joshi had at any time surrendered his rights in the work and therefore, Shri Pande submits that the stand now taken on affidavit that late Shri Sharad Joshi had signed a letter of arrangement dt.20.8.84 in which it was stated that copy right of every nature including in plots, songs, dialogues, characters' mannerisms shall vest exclusively with Art Commercial 4 Nms2790-09 Advertising P.Ltd. and they shall be eligible to make use of the same in any manner they deem fit including reproduction in any other form and use in media, should not be accepted. 6. Mr.Pande submits that the signature of late Shri Sharad Joshi on some document or blank papers has been utilized and now such a letter has been produced before this court. He therefore, submits that all three documents namely the letters dt.20.8.84, 6.8.85 and 5.5.89 are not genuine but got up and therefore, this court should issue an interim injunction restraining the defendant nos. 1 to 3 from in any manner exploiting and using the script of Yeh Zo Hai Zindagi in making any T.V. Serial, Films or making use of the copy right and telecasting any T.V.Serial based on the script of Yeh Zoh Hai Zindagi including the weekly sitcom Ghar Ki Baat Hai. 7. This suit was earlier filed in the City Civil Court but that court returned the plaint for presentation to the proper court finding that it has no jurisdiction. 8. Accordingly, the plaint was returned to the plaintiff and it has been presented to this court. This Motion has been placed for hearing and final disposal and I have heard Shri Pande, learned counsel appearing for the plaintiff at great length. I have also perused the affidavits filed on record. The Copyright Act, 1957 is clear inasmuch as for the purposes of copyright act, it means the exclusive right, subject to the provisions of this Act, to do 5 Nms2790-09 or authorize the doing of any of the acts in respect of a work or any substantial part thereof, namely, that which is set out in section 14 sub section 1 thereof provides that in the case of literary, dramatic or musical work, not being a computer programme, copyright subsists in reproduction of the work in any material form including the storing of it in any medium by electronic means; to issue copies of the work to the public not being copies already in circulation; to perform the work in public, or communicate it to the public; to make any cinematograph film or sound recording in respect of the work etc. 9. As far as the subject work is concerned, it is stated to be a original literary work. As far as copyright is concerned that it was exclusively belonging to the Late Sharad Joshi at least in part is not disputed and, therefore, he can be termed as owner thereof. However, reliance is placed on section 17 of the Copyright Act and it is submitted that the proviso to section 17 makes it clear that in the case of a work made in the course of the author s’ employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. 10. In the affidavit in reply filed in this Notice of Motion, it is submitted that the plaintiff has not set out any documents of any nature whatsoever to substantiate her claim of any rights to any part of the said T.V. Serial vesting with her later father Shri Sharad Joshi. It is stated that all artists, directors, 6 Nms2790-09 writers, technicians etc. required for producing the said T.V. Serial work engaged by the Producers, all of whom, at the instance of the said Producers and for valuable consideration, agreed to render their services for the making of the said TV Serial. It is stated that the Producers had engaged Mr.Sharad Joshi and Mr.Ajay Kartik as writers for the T.V. Serial and directors of the T.V. Serial, Mr.Kundan Shah and Mr.Manjul Sinha also contributed to the script. It is stated that Mr.Sharad Joshi and Mr.Ajay Kartik executed and signed Letters of Arrangement wherein they confirmed that the copyrights of every nature shall vest exclusively with the Producers who were entitled to make use of the same in any manner they deemed fit. 11. Since great reliance was placed on section 17 and particularly sub clause (c) and it was contended that nothing contrary to the letters of arrangement executed by Late Sharad Joshi has been placed on record, I called for the original letters of arrangement. It appears from a perusal of the originals that on 5.5.89 Oberoi Films had personal discussion with Late Sharad Joshi and confirming such arrangement reduced into writing. The confirmation by Late Shard Joshi by placing his signature is also appearing in these letters. More or less are the contents of the letters of arrangement dt.20.4.84 and 6.8.85. At this stage, it is difficult to hold that the Late Sharad Joshi had not signed these documents or that they are got up and not genuine. 12. On these documents being produced, all that Mr.Pande would urge is that 7 Nms2790-09 when the suit with prior notice being given to the defendant nos.1 and 2, neither any reference is made to these letters nor any stand taken that the copyright no longer subsists in favour of Late Shri Sharad Joshi or his legal heirs by virtue of said documents. 13. To my mind, merely because such stand was not taken earlier, it will not be possible to prima facie hold that the letters have been prepared and are got up documents. The stand may not have been taken in the reply to the suit notice but it is clear that this was the position before the City Civil Court as well. By this fact alone, it may not be possible to hold that the documents are got up, forged or that the signatures of Late Shri Sharad Joshi on some blank documents and other papers have been utilized by the defendant nos. 1, 2 and 3. 14. In such circumstances, prima facie conclusion can be drawn that the rights vest in the predecessor in title of the defendant no.1 or in any event, the company, namely, Art Commercial Private Limited. In these circumstances, it will not be possible to grant interim injunction as claimed. However, while dismissing the notice of motion, it is directed that the defendant nos.1 to 3 shall maintain accounts in relation to the use and exploitation of the copyright in the scripts of Late Shri Sharad Joshi so also in relation to the sitcom Ghar Ki Baat Hai and such accounts be filed in this court every six months during the pendency of the suit. 8 Nms2790-09 15. Notice of motion is dismissed accordingly. Hearing of the suit is expedited. ( S.C.Dharmadhikari, J. )