Nms.828-2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 828 OF 2009 IN SUIT NO. 518 OF 2009 Bombino Video Pvt. Ltd. …Plaintiffs. Vs. Ashok Honda & Ors. …Defendants. --- Mr. Y. Ghogari, i/b M/s Thakore Jariwala & Associates for plaintiff. Ms. Ujwala Shirke, for Defendant No.1. Mr. Lalit Jain, for Defendant No.2. CORAM: S.C. DARMADHIKARI, J. DATE : 7 TH SEPTEMBER, 2010. P.C.: 1] The suit is filed by the plaintiffs for a declaration that it is solely and exclusively entitled to exploit the film ‘Anth’ by use of Video format and they are alone entitled to make and/or manufacture copies of Video grams, Cassettees etc. of the said film. 2] In other words, the exhibition and broadcasting right/rights to communicate the work to the public have been acquired and the defendants cannot lay any claim in that behalf on the basis of the declaration. Finding that somebody else is dealing with its rights despite a public notice, that the instant suit is filed. 1 Nms.828-2009 3] Reliance is placed on the agreement which is stated to be on stamp paper of Rs.5/-. The agreement is made at Bombay on 24.11.1992. However, the address of the plaintiff and the defendants is stated to be “Mumbai-400 050”. The doubt expressed about the genuineness of the agreement has some substance, prima facie. That will also be clear because a reference therein is made to Cable TV rights in line with the definitions of the Cable Television Network (Regulation) Ordinance, 1994. It is stated that in consideration of the assignment of the rights by the first defendant in favour of the plaintiffs, there was an agreement to pay Rs.5,25,000/- in terms of the schedule ‘C’. The agreement is stated to have been signed by the Proprietor of the first defendant who is stated to be the Producer. The interest, in schedule ‘C’, which is mode of payment states that on signing of the agreement, Rs.10,000/- would be paid, Rs.2 Lacs towards production and Rs.3.25 Lacs against the delivery of one censored film in 35 mm. 4] On 17.3.1994, the first defendant is stated to have informed the plaintiff that the trial of the film is scheduled on 23.3.1994 at 6.00 p.m. and the plaintiffs can come to see the trial. Thereafter, there will not be any further trial as the film will be sent to Madras for the purpose of censoring. The letter is addressed to the plaintiff on the basis that the plaintiff is going to fix suitable Cinemas for release of the picture and even assisting the first defendant in publicity. Thereafter, for good nine years there seems to be nothing between the parties. Suddenly the first defendant is stated to have addressed a letter to the Proprietor of M/s Vijay Colour Laboratory for Digidata transfer to be done for the plaintiff and cost of the same will be borne by the plaintiff. The first defendant is 2 Nms.828-2009 stated to have addressed another letter on 15.12.2003 to another Laboratory on same lines. 5] What has been alleged in the plaint is that the agreement was prepared in the year 1994, signed in the year 1994 and acted upon in 1994 itself. The plaintiff’s claim rights in the agreement for a period of 25 years commencing from the date of delivery. There is nothing written as to how after signing the agreement the plaintiff has exploited the rights assigned in their favour by making Video Cassettes, DVDs/VCDs and are continuing to do so. There is no further indication as to why the first defendant had addressed letters on 10th and 15th December 2003 to various Laboratories after receiving the full and final payment. Further, in para 14 of the plaint the plaintiff states that the agreement is dated 24.11.1992. 6] All this assumes significance in the light of the reply to this Notice of Motion wherein the first defendant has stated that the plaintiff has not made out anywhere in the plaint a case of the first defendant infringing the rights or how he is going to infringe the same. The plaintiff’s pleas are that so far no DVDs/VCDs/Video Cassettes of the film have been marketed or sold. There is only apprehension of the plaintiff. Further, the first defendant states that the agreement to assign the negative rights was entered into with second defendant in March 2003 and that transaction is not completed. 3 Nms.828-2009 7] Learned Advocate for the plaintiff therefore states that this is a fit case for granting injunction at least restraining defendants from creating further rights in the film/work in question. The plaintiff must succeed on the strength of its case as set out in the plaint and not on the basis of contradictions allegedly in the version of the defendants. Now, the second defendant has also assigned the rights in favour of defendant no.3. 8] Once there is serious issue raised with regard to the genuineness and validity of the agreement and when it is stated to be forged and fabricated, which is prima facie clear from recital itself, then, the plaintiff is not entitled to interim relief. 9] As a result of this discussion, the Notice of Motion fails and is accordingly dismissed, without any costs. All observations shall be treated as tentative and prima facie and only for the purpose of disposal of this Notice of motion. [S.C. DHARMADHIKARI, J.] 4