: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3101 OF 2009 IN SUIT NO. 2199 OF 2009 Kishore Mohanlal Dingra .. Plaintiff V/s. M/s. S.K. Films Enterprises & Ors. .. Defendants ..... Mr. Ashok M. Saraogi for the plaintiff Mr. Virag Tulzapurkar, Sr. Counsel a/w. V.R. Dhond, Ameet Naik and Madhu Gadodia i/by Naik, Naik & Co. for defendant Nos.1 and 2. Dr. Birendra Saraf i/by Consulta Legal for defendant No.3 Mr. S.S. Joshi, AGP for defendant No.4. ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 10th SEPTEMBER, 2009. P.C. : 1. This matter was argued yesterday and placed for orders today. The request of the plaintiff is to pass urgent ad- interim order so as to restrain release of a film titled "Wanted" with a song which is subject matter of the instant suit. The prayer is that the injunction sought is only against utilization of the song, circulating the CDs, DVDs or in any other format the song and the plaintiff does not desire to obstruct the release of the film. : 2 : 2. Mr. Saraogi appearing on behalf of the plaintiff contended that this is a case where the Defendant No.3 was engaged by the plaintiff for recording of a song for his Music Album. These services were rendered by defendant No. 3 for consideration more particularly mentioned in the plaint. Admittedly, the song has lyrics of one Mr. Sameer and it was recorded as is evident by the annexures to the plaint. The 3rd defendant had entered into an Agreement and accepted the terms and conditions of the Agreement. In such circumstances, the plaintiff has a subsisting copy right in the work and, therefore, act of the defendant No. 3 transferring rights in favour of defendant Nos.1 and 2 in respect of the song, same lyric and with the same music composer for the purpose of the film of defendant Nos.1 and 2, infringes the Copyright of the plaintiff and, therefore, this is a fit case where the interim injunction as prayed be granted. The plaintiff has no objection to the release of the film but without the subject song. While, it is true that there was correspondence between plaintiff and defendant Nos.1 and 2, yet, the cause of action arose only when the defendant noticed that a CD of the film of the song together with the other songs of the said film was released and distributed. Therefore, there is no delay and considering the admitted facts, the interim relief should be granted. : 3 : 3. On the other hand, Mr. Tulzapurkar, learned Senior Counsel appearing for the defendant Nos.1 and 2 contended that this Court must not proceed to accept the plaintiff's version as there is a serious doubt with regard to the same. Inviting my attention to the plaint, Mr. Tulzapurkar submits that the plaintiff does not indicate as to how he has acquired the rights in respect of the subject song. On the own showing of the plaintiff in para 1 of the plaint, it is stated that the song was recorded for a music album. That music album was being made by Mega Sound Entertainments. The Mega Sound Entertainments purportedly paid the charges as is evident by the invoice and took delivery of the materials. The plaintiff claims to be a partner of M/s Mega Sound Entertainments. However, he states that the suit is filed by Megha Sound Entertainments, which is claimed to be a sole proprietary concern of the plaintiff. However, nothing has been brought on record to show that the plaintiff was a partner in Mega Sound Entertainments or that the business of Mega Sound Entertainments including the rights in the music album are taken over by the plaintiff. In the absence of any document and more particularly in the light of the averments in para 1 of the plaint, it cannot be assumed that the plaintiff has any subsisting rights or has acquired the rights in the Song. On the own showing of the plaintiff, no such document is annexed to the plaint and : 4 : the plaint averments are that the plaintiff craves leave to refer to and rely upon copy of the relevant documents as and when produced. 4. Mr. Tulzapurkar's next contention is that assuming without admitting that there is any right in the music album, that right is in respect of Sound recording of the song. The Sound recording is a distinct work and considering the relevant statutory provisions, this right could not be extended to either the Lyrics or the composition of the music or engagement of the services as alleged. If at all, the services were rendered by defendant No.3, what the plaintiff has done is recording the song and has paid the charges for the same. Thus, as a sound recordist, at the most, the right could be claimed and nothing further. In the absence of any further right being conferred and prima-facie proved, this Court should not proceed on the basis that the plaintiff had any privity with defendant Nos.1 and 2 or that defendant No.3's services were availed off by the plaintiff for anything except recording of the song. Defendant No.3 transferring the rights in favour of defendant Nos.1 and 2 would not make these defendants liable for the suit claim. 5. The last contention of Mr. Tulzapurkar is assuming without admitting that there is any right, yet, on the own showing of the plaintiff the agreement between the : 5 : plaintiff and defendant No.3 is of 5th January, 2004. The recording has been done on 19th August, 2006, the material delivered on the said date, the plaintiff became aware of the intent of the defendant Nos.1 and 2 in using the said song for their film on 4th June, 2008 when the notice of his advocate was dispatched. The plaintiff himself has averred in para 15 of the plaint these facts and in para 21, he has stated that the music has been already launched on 9th August, 2009. In such circumstances, when the song is already utilized and the music album launched, the CDs released, then, there is no question of granting any interim injunction so also the grant would be vitiated by unexplained and enormous delay. For all these reasons, the equitable and discretionary relief should be refused. 6. Mr. Saraf appearing for the 3rd defendant while adopting the contention Mr. Tulzapurkar has urged that the defendant No.3 has with the consent of the song writer / lyric writer, Mr. Sameer transferred the rights in the said work in favour of defendant Nos.1 and 2. He has received valid consideration and there is an agreement in that behalf. There are no subsisting rights of the 3rd defendant. It was not disputed and it cannot be disputed that the song writer, Mr. Sameer has authorized defendant No.3 to deal with the rights in respect of this song / work. The writer of the song has no grievance as regards the dealings between defendant Nos.1 and 2 and defendant : 6 : No.3, equally, the music composer. In such circumstances, at this belated stage, no interim injunction can be granted and in any event needs to be granted against defendant No. 3. 7. Having perused all the necessary materials including the annexures to the plaint and affidavits, I am of the opinion that no prima-facie case is made out by the plaintiff. There is substance in the contention of Mr. Tulzapurkar that the plaint averments are vague, in so far as the right of the plaintiff. On the own showing of the plaintiff in para 1, he does not dispute that one  Mega Sound Entertainments was a partnership firm. The plaintiff claims to be a sole proprietor of  Megha Sound Entertainments . The relationship between the partnership firm and the plaintiff has not been established by producing any document. The Court cannot on the basis of vague averments in para 1 of the plaint assume that the plaint had dealt with the defendant No.3 or that it was the plaintiff who paid the necessary and relevant charges. In such circumstances, the claim of the plaintiff raises a serious doubt. 8. Further, assuming that the plaintiff could have maintained his suit, yet, the plaint is silent with regard to the Copyright of the plaintiff. Mr. Tulzapurkar is, therefore, justified in placing reliance upon the : 7 : provisions of the Copy Right Act. He submits that meaning of Copy Right is set out in Section 14. It means the exclusive right subject to the provisions of the Act, to do or authorize the doing of any of the acts in respect of a work or any substantial part thereof. Mr. Tulzapurkar has relied upon Section 14(i)(a)(iv). Thus, the work may be making of any Cinematograph film or Sound Recording in respect of the work. The plaintiff does not say that music album was a Cinematograph film. Mr. Saraogi argued that music album could be considered as a Cinematograph film and everything that is associated with making of the film, song, lyrics and composition can, therefore, be included in this work. Prima-facie this argument is not accurate. There is a distinction made by the Act itself with regard to Sound Recording in such a work and in so far as the Sound Recording is concerned to make any other sound recording embodying, selling or hiring or offering for sale or hire, any copy of the sound recording, regardless or whether such copy has been sold or given on hire on earlier occasions, to communicate the sound recording to the public would constitute the copy right which is exclusive. The plaint does not set out any such aspects of the work or the rights claimed by the plaintiff. During the course of arguments, reliance was placed on Section 17(C) of the Act by Mr. Saraogi. The plaintiff is stated to be the employer and, therefore, when an Author is employee under a contract of service or Apprenticeship, employer shall in the : 8 : absence of any agreement to the contrary, he the first owner of the Copyright therein. According to Mr. Saraogi this sufficiently indicates that there is a right of the plaintiff in the said music album and particularly the song in question. He submits that there is no agreement to the contrary and instead, Annexure "A" to the plaint would demonstrate that there is exclusive right which is conferred upon the plaintiff by defendant No.3. 9. It is difficult to agree with this submission in as much as perusal of Annexure "A" would not be enough to prima facie conclude as to whether the plaintiff has any Copyright in the sound recording or the composition as a whole. Further plaintiff is stated to be making his music album containing 8 songs. As the agreement itself states that the songs will be recorded and whether the same are included in the Album or not, the 3rd defendant will not sing the songs for other persons. That the 3rd defendant had entered into such an agreement in the year 2006 but thereafter, it is not stated as to whether the music album was made or not. In such circumstances, when the defendant Nos.1 and 2 are relying upon an agreement dated 20th September, 2007 made between the 3rd defendant and themselves and the principal understanding is that 3rd defendant has assigned all rights including intellectual property right in the lyrics of the song in favour of defendant No.2, then, the said agreement cannot be brushed : 9 : aside. More so, when despite such agreement is brought on record, the plaintiff did not take any steps to challenge the same. The agreement between defendant Nos.1 and 2 and defendant No.3 is not impugned in the present suit although it was brought to the notice of the plaintiff. 10. In my view, there is a serious doubt with regard to the rights of the plaintiff in respect of subject work. Once, the case is not free from doubt and requires further elaboration and substantiation by plaintiff himself, then, this is not a fit case for grant of any interim injunction much less in the form prayed. Thus, there is no alternative but to conclude that the plaintiff has failed to make out prima-facie case. Further, it being well settled that the injunction is a discretionary and equitable relief, one must set out complete facts when such a right is asserted even at this stage. The plaintiff is also required to approach the Court expeditiously. In the instant case, para 15 and 21 would reveal that the plaintiff was aware that the defendant Nos.1 and 2 were utilizing the song in question for their feature film. He does not take any steps despite knowing this fact and their being an agreement between him and defendant Nos.3. He allows the Music Album / CD of the film of defendant Nos.1 and 2 containing the song in question to be released. In such circumstances, even on this ground there cannot be any interim order in favour of the plaintiff. Thus, when : 10 : balance of convenience is not in favour of the plaintiff and the film being stated for release, it would not be appropriate to grant any interim injunction much less in the form prayed namely that the film be permitted to be released without the subject song. In the result, the notice of motion fails and it is accordingly dismissed. However, there will be no order as to costs. (S.C. DHARMADHIKARI, J.)