1 AO.540-11-CAA.759-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.540 OF 2011 WITH CIVIL APPLICATION NO.759 OF 2011 IN APPEAL FROM ORDER NO.540 OF 2011 Turkish Mohd. Azam. ..Appellant/ Applicant. Vs. Pritam Chakraborty (Music Director) and 7 others. ..Respondents. .......... Mr.Harinder Toor a/w. J.H. Mishra, Bhupesh Singh i/b. Mr.Omar Khaiyam Shaikh, Advocate for the Appellant/Applicant. Mr.V.R. Dhond, a/w. Ms.Henal Vakharia i/b. Henal Vakharia & Asso. For Respondent Nos.1 to 6 & 8. Mr.Ashok Purohit, Advocate for Respondent No.7. .......... CORAM : A.R. JOSHI J. [VACATION COURT] DATED : 01st JUNE, 2011. P.C. 1. Present Appeal From Order is preferred by the appellant / original plaintiff challenging the order dated 23.5.2011 passed on Draft Notice of Motion preferred by the original plaintiff. Said Draft Notice of Motion was taken out in PPD 2 AO.540-11-CAA.759-11 SC Suit No.1057/2011 filed before the City Civil Court at Dindoshi, Goregaon, Borivali Division, Mumbai. 2. The Notice of Motion was taken out by the plaintiff for grant of injunction restraining the defendants from publishing, exhibiting and releasing the feature film by name “Ready” in which one song having the words “Character Dheela Hai” is picturized. Apparently said feature film “Ready” is to be released on 3rd June, 2011 all over India and abroad. The plaintiff also prayed for injunctive relief against the defendants from distribution and circulation of the audio CDs containing the said song “Character Dheela Hai”. Apart from such injunctive relief, there is also demand in the Suit for compensation of Rs.45,000/- by way of damages to be paid by the defendants to the plaintiff. The said Notice of Motion was initially heard at the ad-interim stage by the learned trial Judge and was disposed of and ad-interim relief was refused. This is the order challenged in the present Appeal From Order. The matter was taken up on urgent circulation and is heard today and being disposed of by this order. 3 AO.540-11-CAA.759-11 3. The main contention on behalf of the appellant / original plaintiff is that he is the original writer of one song having the following lyrics : “KUDION KA NASHA PYARE NASHA SUB SE NASHEELA HAI. JISE DEKHO YAHAN WO HUSN KI BAARISH ME GEELA HAI. ISHQ K NAAM PE KARTA HAR KOI RAASLEELA HAI.... MEIN KAROON TO SAALA CHARACTER DHEELA HAI..........”, and he has the copyright over the said literary work. According to the appellant / orig. plaintiff he had registered the said song with respondent No.7 – Film Writer's Association and such registration was done somewhere on 30.7.2007. In order to have the said song included in any of the Hindi feature films, the appellant / plaintiff had approached respondent No.1 – a well known Music Director, and on various occasions he had requested respondent No.1 to use the said song in any of the films and to give monetary benefit and fame to the appellant / plaintiff as Lyricist. In spite of repeated visits and requests by the appellant / plaintiff with respondent No.1, there was no response and in fact respondent No.1 started avoiding the appellant. This happened, admittedly, since March 4 AO.540-11-CAA.759-11 2007 till January 2010. Sometime in May, 2011 the appellant / plaintiff knew from the promos of the movie “Ready” on various T.V. Channels that his song has been copied with some insignificant alterations by changing the word here and there and used in the Hindi feature film “Ready”. However, no due credit has been given to the appellant / plaintiff and the name of the Lyricist is mentioned as Amitabh Bhattacharya i.e. present respondent No.8. 4. The appellant / plaintiff felt cheated by respondent No.1 and others and as such approached respondent No.7 – Film Writer's Association and lodged complaint against the respondents. Said complaint was lodged on 3rd May, 2011. On lodging of such complaint, a joint meeting was arranged by respondent No.7 calling upon other respondents for amicable settlements of the alleged grievance of the appellant / plaintiff. However, admittedly, on 14.5.2011 or so the appellant / plaintiff made a representation to respondent No.7 – Film Writer's Association that the matter be kept in abeyance. As such, it appears that the appellant / plaintiff did not opt to 5 AO.540-11-CAA.759-11 pursue the settlement through respondent No.7 and instead opted for taking the legal action before a Court of law. In fact when the meeting was arranged on 14.5.2011 at the intervention of respondent No.7 for amicable settlement, much prior to that on 9.5.2011 a Advocate's Notice was sent by the appellant / plaintiff to respondent Nos.1 to 7 putting forth his claim as to having copyright over the song and asking for compensation and injunctive action against the respondents. As such, though earlier a complaint was lodged with respondent No.7 even by filing a complaint-form of the same date, preparation was made for taking legal action before the Court of law. However, it is the allegation of the appellant / plaintiff that respondent No.7 started putting pressure on him to settle the matter with the respondents as respondent No.1 & others were influential personalities in the Film Industry. 5. On the issuance of notice through Advocate dated 9.5.2011, reply was given by the respondent Nos.1, 2 & 6 through their Advocate vide reply dated 12.5.2011. According to the appellant / plaintiff he knew the name of respondent 6 AO.540-11-CAA.759-11 No.8 – the Lyricist Amitabh Bhattacharya for the song “Character Dheela Hai” of the film “Ready” and he knew this apparently from the reply of the respondents dated 12.5.2011. Thereafter a suit was filed before the City Civil Court, Dindoshi, Mumbai along with Notice of Motion praying for ad-interim relief against the respondents. 6. As mentioned above, by order dated 23rd May, 2011 said Draft Notice of Motion was dismissed by the City Civil Court after hearing rival submissions and by a detailed reasoned order. The present matter being Appeal against the order, it is to be ascertained whether the said order dated 23.5.2011 refusing the injunctive relief is required to be interfered with ? 7. Certain factual position is required to be mentioned in order to have the scope of the arguments advanced on behalf of the appellant / plaintiff. Admittedly, the appellant had not registered his song “Character Dheela Hai” with the Copyright Office as per the provisions of Copyright Act, 1957. According to the appellant / plaintiff he had registered his song allegedly with respondent No.7 that also on 30.7.2007. This registration 7 AO.540-11-CAA.759-11 with respondent No.7 is of no much use to the appellant / plaintiff inasmuch as there is material brought before the trial Court as to one more song having words “ISHQ KA NAM RAKH GAYE YAHAN KANHAYA RASLILA HAI. HUM KARE TO BHAIYA CHARACTER DHILA HAI”, already registered by one Mr.Jitendra Raghuwanshi in November, 2004. 8. Considering the above admitted position, it must be said that the appellant / plaintiff had relied on the only alleged registration of the song with respondent No.7, however, did not take recourse to mediation at the hands of respondent No.7 and instead took recourse to the legal process by filing of a Suit before the Court of law. In fact the doubt raised by the City Civil Court as to the authorship of the song vesting with the plaintiff appears to be reasonable and based on the material produced before it and as such, there is nothing to entertain any other view than the one which is taken by the City Civil Court. 9. During the arguments much is harped on the view taken by the City Civil Court as to no copyright registration under the Copyright Act in favour of the appellant / plaintiff. By pointing 8 AO.540-11-CAA.759-11 out this, it is submitted that an error has been committed by the City Civil Court in rejecting the application for injunctive relief on the ground of no copyright registration under the Act. On this aspect, it must be mentioned that though there is specific mention in the impugned order and though much emphasis is placed on the fact as to non-registration of the song in the name of the appellant / plaintiff with the Registrar under the Copyright Act, it is not the sole ground on which the injunctive relief was denied. Needless to mention and also it is a legal position conceded by the respondents that no provision in the Act deprives an author of his right therein merely for non-registration of copyright. This is the dictum of the authority AIR 1981 ALL. 200 Nav Sahitya Prakash Vs. Anand Kumar. However, in the opinion of this Court without there being any registration under the Copyright Act, there should have been more authentic material brought before the City Civil Court by the plaintiff in order to establish his authorship over the concerned song when reasonable doubt is created so far as registration of such song with respondent No.7. Needless to 9 AO.540-11-CAA.759-11 mention that registration of any literary work including a song with respondent No.7 cannot be considered as a circumstance which is legally acceptable in order to establish right of authorship over the person. In other words, it was just submission of a person before respondent No.7 that he has allegedly created some literary work and it has been endorsed by respondent No.7 and without there being any record maintained with respondent No.7. This position is factually accepted by rival parties and as such in view of this situation it is must for the appellant / plaintiff to produce more authentic material showing that the originality of the song vests in him. 10. During the arguments, learned Counsel for the respondents pointed out that the appellant / plaintiff had not approached the City Civil Court with clean hands inasmuch as he had made false statements to the effect that he knew the name of respondent No.8 only after receiving the reply dated 12.5.2011 in response to his Advocate Notice dated 9.5.2011. On this aspect, it is brought to the notice that appellant / plaintiff had filed a complaint with respondent No.7 on 10 AO.540-11-CAA.759-11 3.5.2011 and in para-22 he had specifically mentioned the name of respondent No.8 as the member writer against whom the complaint is made. Said written complaint to respondent No.7 is dated 3.5.2011. As such the contention of the appellant / plaintiff as mentioned in his plaint that he knew the name of respondent No.8 only after receiving the reply dated 12.5.2011, is falsified. 11. Secondly, it is argued on the point of false statement made in the plaint by the plaintiff on the aspect of alleged registration of his song with respondent No.7 Association on 30.7.2007. According to the appellant / plaintiff he registered his song with the Association on 30.7.2007. However, in the complaint made with the association dated 3.5.2011 in para-16 he had mentioned that 100 times he visited the office of respondent No.1 since March, 2007 till January, 2010. The mention of “March-2007” is significant inasmuch he allegedly registered the song with respondent No.7 Association on 30.7.2007 and as such a reasonable doubt has been entertained whether he had in fact registered the said song in July, 2007 11 AO.540-11-CAA.759-11 when in the complaint he mentions and also mentions in the plaint that he made aware the song to respondent No.1 since March, 2007. 12. It is also argued on behalf of the respondents that the material is already available on the internet and from which the concerned song was composed and taken in the feature film. This aspect has also been dealt with by the City Civil Court in order to come to the conclusion as to reasonable doubt about the authorship of the song vesting with the plaintiff. 13. Lastly, it is submitted on behalf of the respondents that the actions taken by the plaintiff are only to pressurize the respondents and to halt the process of release of the film which is just two days away, this is more so in view of the action taken by the plaintiff himself before respondent No.7 Association asking for keeping the matter in abeyance and even taking the matter to the Court without there being any amicable settlement through intervention of respondent No.7. It is further submitted that the music is already released on 25.4.2011 and Indian distribution and overseas rights were sold 12 AO.540-11-CAA.759-11 even much prior on 20.2.2011 to one A.B. Movies Private Limited and lastly the international prints are sent to overseas on 27th & 28th May, 2011 and as such it would not be just and proper to intervene in the release process of the film “Ready”, which is scheduled on 3.6.2011. 14. Considering the rival submissions and considering the material produced before the City Civil Court and considering the reasoning given as mentioned above, there is nothing to intervene in the order which is impugned in the present Appeal from Order. In the result, Appeal from Order is dismissed with no order as to costs. Consequently, Civil Application No.759 of 2011 does not survive and accordingly disposed of. (A.R. JOSHI, J.)