IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.93 OF 2008 NO.93 OF 2008 NO.93 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.___OF 2007 OF MOTION NO.___OF 2007 OF MOTION NO.___OF 2007 (NOTICE (NOTICE (NOTICE OF MOTION DATED 24.08.2007) OF MOTION DATED 24.08.2007) OF MOTION DATED 24.08.2007) IN IN IN SUIT SUIT SUIT NO. 3190 OF 2007 NO. 3190 OF 2007 NO. 3190 OF 2007 Bharat Bala Productions Pvt.Ltd. ) G-9, Satnam Sagar, 20 Peddar Road, ) Mumbai - 400 053. )..Appellant (Orig.Defendant No.1) V/s. 1.Shrinagar Cinemas Ltd. ) Fame Adlabs, ) 2nd Floor, Link Road, Oshiwara, ) Andheri (W) Mumbai-400 053 )..Respondent No.1 (Orig. plaintiff) 2.M/s. PVR Cinemas ) Block 2A, DLF Corporate Park, ) DLF Qutab Enclave Phase III, ) Mehrauli- Gurgaon Road, ) Gurgaon - 422 002 ) And also carrying out business in ) Mumbai at ) Sub Plot No.9B of Plot No.A-122 ) Point Juhu Vile Parle, Taluka ) Andheri, Mumbai )..Respondent No.2 (Orig.defendant No.2) 3.M/s. E-City Film India Pvt. Ltd. ) Plot No.844/4, Shah Industrial ) Estate, Off. New Link Road, ) Opp. Laxmi Industrial Estate, ) Andheri (W) Mumbai - 400 053. )..Respondent No.3 (Orig.defendant No.3) ....... Mr. Abhishek Malhotra i/by Rikab Chand and for the appellant Ms. Vineet B. Naik with Ameet Naik, Ms. Soumya Srikrishna and Ms. Hemangi Abhyankar and Mrinalini Rajpal i/by Naik, Naik, Iyer & Co. for respondent No.1 ...... : 2 : CORAM CORAM CORAM : SMT RANJANA DESAI & : SMT RANJANA DESAI & : SMT RANJANA DESAI & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE ON WHICH THE JUDGMENT IS RESERVED : 07/10/2008 ON WHICH THE JUDGMENT IS RESERVED : 07/10/2008 ON WHICH THE JUDGMENT IS RESERVED : 07/10/2008 DATE DATE DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 21/10/2008 ON WHICH THE JUDGMENT IS PRONOUNCED: 21/10/2008 ON WHICH THE JUDGMENT IS PRONOUNCED: 21/10/2008 JUDGMENT JUDGMENT JUDGMENT : (PER K.K. TATED, J) : (PER K.K. TATED, J) : (PER K.K. TATED, J) 1. By the present appeal, the appellant-original defendant No.1 challenged the impugned order dated 27.9.2007 passed by the learned Single Judge in the Notice of Motion No.__of 2007 (dated 24.08.2007) in Suit No.3190 of 2007. By the impugned order dated 27.9.2007, learned Single Judge passed order in terms of prayer clause (a) and (b) of the notice of motion. 2. Admittedly, the respondent No.1 approached this Court for the reliefs of damages and injunction on account of infringing respondent No.1’s exclusive theatrical right of song Jana Gana Mana and also on account of violation of contractual obligations by the appellant-original defendant No.1. It is admitted fact that by an agreement dated 5.6.2006, the appellant granted exclusive license in respect of theatrical rights in the said work as described in Exh.’A’ to plaint to the respondent No.1 so as to enable the responent No.1 to exploit the Theatrical Rights across : 3 : all Cinema theatres (whether FAME Cinemas or any other theatres belonging to any other brand / entity) in the territory of Republic of India for a term of 5 years from the date of execution of the said agreement on terms and conditions referred to in the said agreement. By letter dated 7.8.2006, respondent No.1 informed the appeallant that "Indian National Anthem" soulfully rendered by A.R. Rehman was exclusively launched at Fame Cinemas on 24.6.2006. Respondent No.1 also informed that they have exclusive Cinema partner for this venture all over India and will be partnering with various Cinemas to play the said version. It is specifically stated in the said letter that "We would like to bring to your notice that this National Anthem cannot be edited or cut and has to be played completely". At the bottom of the said letter dated 7.8.2006, there is an endorsement that the appellant agreed to those terms and signed the said letter. It is the case of respondent No.1 that as per terms and conditions of the agreement dated 5.6.2006, the appellant is not entitled to exploit Theatrical Rights in India for a period of 5 years from the date of execution of the agreement dated 5.6.2006. Inspite of exclusive rights of the respondent No.1 to exhibit the said film, it is the case of respondent no.1 that : 4 : appellant tried to exibhit the said film in other theatres in India and, therefore, they were constrained to file the present Suit for various reliefs including injunction prohibiting the appellants from, in any manner infringing the plaintiff’s exclusive Theatrical Rights in the said work (as described at Exh.A to the plaint) and or exhibiting and causing to exhibit the said work or communicating or causing to communicate to the public the said work in the theatres and or Cinemas anywhere in India in violation of the respondent No.1’s rights therein. Thereafter, sometime on 27.7.2007, the appellant addressed a letter to respondent No.1 on e-mail mentioning that the appellant intended to launch the vocal group rendition in the other theatres for the 60th year of Independence celebrations. Accordingly, request was made to the respondent No.1 to permit the appellant to have a vocal group rendition forshow other theatres to run. It is further mentioned that other theatres will do the processing and will make prints on their own and run the film on their own. In response to this communication, respondent No.1 wrote to the appellants on 30.7.2007 that respondent no.1 were comfortable with other theatres using the vocal rendition version and observed that as has been agreed in the past to other theatres must not delete any of the : 5 : credits. Besides the respondent No.1 called upon the appellant to disclose if other theatres will be paying for the use of the said film. Considering these facts, the Single Judge granted order in terms of prayer clause (a) and (b) of notice of motion in favour of the respondent No.1. 3. It is the case of the appellant that they have no objection if the order is passed in terms of prayer clause (a) of the notice of motion. But their grievance is in respect of order passed by the Single Judge in terms of prayer clause (b) of the notice of motion. The prayer clause (b) of the notice of motion reads as under:- "(b) That pending the hearing and final disposalo, the Defendants be ordered and directed to deliver up all the infringing copies of the said work (as described in Exhibit A hereto) which may be in, or may come into, their possession;" 4. It is the case of the appellant that as per agreement dated 5.6.2006, respondent No.1 have theatrical rights mean the right to exploit the said work / communicate the said work to the public, only by means of exhibition of the said work through Cinema theatres. The learned Counsel appearing for appellant : 6 : took us through some of the relevant provisions of agreement dated 5.6.2006. He pointed out the meaning of theatrical rights as per agreement. It is the case of the appellant that respondent No.1 is not entitled to order in terms of prayer clause (b) i.e. compelling appellant to deliver up all the infringing copies of the said work which may be in, or may come into, their possession. It is the case of the appellant that they have right to keep all these copies in their possession. It is the case of the appellant that in case they exhibit the said film in other theatre in India, the respondent no.1 can take appropriate action as per law for breach of the order dated 27.9.2007 passed by the Single Judge in the notice of motion. The learned advocate also pointed out the definition of infringing copy under Section 2(m)(ii) of the Copyright Act, 1957. 5. It is contended by learned counsel for the appellant that the exclusive license granted to respondent No.1 was limited only to communication to the public of the film by means of exhibition in cinema theatres and the exclusive right to make copies of the film continued to vest in the appellant and, hence, copies made of the said film by the appellant or under license from the appellant are not infringing copies. : 7 : It is contended that, therefore, learned Single Judge has erred in directing the defendant to deliver up all the copies of the said work described in Exh.A which may be in or may come into their possession. Assuming that the appellant is right, one fails to understand why the appellants are not objecting to interim relief in terms of prayer clause (a) which prevents the appellants from infringing respondent No.1’s exclusive theatrical rights by exhibiting the said film to the public in theatres, the appellant wants to keep copies of the said film with him. Unless the appellant wants to use them, he would not want them. In our opinion, in order to make prayer granted in terms of prayer clause (a) effective, prayer clause (b) must be granted because it is difficult for respondent No.1 to wait till the misuse and take action thereafter. Whole purpose of granting prayer clause (a) would be frustrated. 6. Considering the submission made by the appellant and respondent No.1 and after hearing them at length, we feel that there is no substance in the present appeal in as much as the appellant already made a statement that they are not opposing the order passed by the learned Single Judge in terms of prayer clause (a) of the notice of motion. It is crystal clear that the appellant : 8 : executed the agreement dated 5.6.2006 in favour of respondent No.1 in respect of theatrical rights for a period of 5 years. It is specifically provided in the said agreement that respondent No.1 had exclusive right to exhibit the said film for 5 years from the date of execution of the said agreement. If the respondent No.1 have right to exhibit the said film for 5 years, as per agreement dated 5.6.2006, it is of no use to allow the appellant to keep infringing copies of the said work which may be in, or may come into their possession during the period of 5 years. 7. Consequently, we find that the respondent No.1 (original plaintiff) made out a prima facie case for the grant of pendente lite injunction sought by them. It is also clearly made out that respondent No.1 will suffer irreparable injury if the injunction sought by them is not granted and the balance of convenience also lay in their favour. As such, the learned Single Judge is perfectly justified in allowing the notice of motion in terms of prayer clauses (a) and (b) and there is no substance in the appeal. The appeal is dismissed with no order as to costs. : 9 : JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE