Case Details

Exh.17 Spl.C.S. (coml.) nos.17/2017 & 18/2017 page 1 of 9 O R D E R (below exhibit 17) (Delivered on this the 28th day of the month of February of the year 2018). 1. As these two applications are filed by the plaintiffs to reject the counter claim filed by the defendants, the parties shall be referred to as plaintiff and defendant respectively, as referred to in the main suit, for the sake of convenience. 2. The defendant has resisted these applications claiming that the counter claim has to be decided based on the averments made in the counter claim and not upon the application and/or documents filed alongwith an application under Order 7 Rule 11 CPC and that these applications are filed only to delay the suit and the application for temporary injunction claimed against the plaintiff in the suit. 3. Ld. Adv. Shri N. Pai has taken me through the counter claim to submit that the police complaints referred to in the counter claim are still pending adjudication and therefore, it cannot be said that the present suit is vexatious or that there was malicious prosecution. 4. It is the contention of Ld. Adv. Shri N. Pai that the counter claim is devoid of material facts culminating into a cause of action and that the damages are not even computed nor are the complaints placed on record nor are material allegations made in the complaint pleaded nor is the order passed in the Writ Petition produced on record. Ld. Adv. Shri N. Pai submits that in any case, the Writ Petition has been decided in favour of the plaintiff. Ld. Adv. Shri N. Pai submits that the defendant has not pleaded any wrongful act nor the right in law in Exh.17 Spl.C.S. (coml.) nos.17/2017 & 18/2017 page 2 of 9 favour of the defendant or what was the actual wrong committed. The learned advocate submits that the counter claim is filed only to delay the suit. 5. Ld. Adv. Shri N. Pai has placed reliance on the judgment of the Hon’ble Apex Court, in the case of T. Arivandandam V/s T.V. Satyapal and another (1977) 4 SCC 467}, Kusum Ingots & Alloys Ltd. V/s Union of India and another {2004 (6) SCC 254}, in the case of Church of Christ Charitable Trust and Educational Charitable Society V/s Ponniamman Educational Trust {(2012) 8 SCC 706} and of the Hon’ble Bombay High Court, in the case of Smithkline Beecham Consumer Healthcare Gmbhy and others V/s Hindustan Lever Limited and another {2002(1) Mh.L.J. 453} in support of his arguments. 6. As against this, Ld. Adv. Shri C.A. Coutinho has submitted that the defence cannot be looked into at the time of deciding an application under Order 7 Rule 11 CPC and that the falsity of the police complaint, referred to inn the counter claim, will have to be proved in evidence. 7. Ld. Adv. Shri C.A. Coutinho has placed reliance on the Judgment of the Hon’ble High Court, in the case of Leopold Café & Stores V/s Novex Communications Pvt. Ltd. {2014(6) Bom.C.R. 394} in support of his arguments that the plaintiff has been restrained by the Hon’ble High Court from any manner carrying in the business of issuing and granting licences and collecting license fees in respect of any copyright works and as prayed for in the counter claim herein and Exh.17 Spl.C.S. (coml.) nos.17/2017 & 18/2017 page 3 of 9 as such, it cannot be said that the pleadings do not show a cause of action. 8. Ld. Adv. Shri C.A. Coutinho has taken me through Order 6 Rule 2 CPC to argue that the evidence is not required to be pleaded and that all disputes raised in the counter claim are to be decided on merits. Ld. Adv. Shri C.A. Coutinho has placed reliance on the judgment of the Hon’ble Apex Court in the case of Ponnala Lakshmaiah v/s Kommuri Pratap Reddy and others {2012(7) SCC 788} in support of his arguments that the pleadings in the counter claim disclose a cause of action. 9. Ld. Adv. Shri C.A. Coutinho submits that the context in which the observations were made by the Hon’ble Apex Court, in the case of T. Arivandandam (supra) were different from the circumstances of this suit and therefore, are not applicable to the facts of this suit. 10. Ld. Adv. Shri N. Pai, in rejoinder, has submitted that though Leopold Café & Stores (supra) was in a case filed against the plaintiff, the observations made therein will not apply to the present as, in the present case, the plaintiff is claiming as authorized agent of the copyright owners and therefore, was not required to be registered under Section 33 of the Copyright Act. 11. I have perused the record and have considered the arguments advanced. The question before me is whether the pleadings in the counter claim do not disclose a cause of action. Exh.17 Spl.C.S. (coml.) nos.17/2017 & 18/2017 page 4 of 9 12. The Hon’ble Apex Court, in the case of T. Arivandandam (supra) has observed that it must remembered that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Order VII Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled and, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. 13. The Hon’ble Apex Court, in the case of The Church of Christ Charitable Trust & Educational Charitable Society (supra) has observed that while scrutinizing the plaint averments, it is the bounden duty of the Trial Court to ascertain the materials for cause of action. It was held that the cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. It was observed that every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It was further observed that the cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. 14. In the case of Kusum Ingots & Alloys Ltd. (supra) the Apex Court observed that: “The cause of action implies a right to sue and that the material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to Exh.17 Spl.C.S. (coml.) nos.17/2017 & 18/2017 page 5 of 9 prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily.” 15. In the case of Smithkline Beecham Consumer (supra), the Hon'ble High Court referred to the definitions of the terms “cause” and “cause of action” as defined in the Black's Law Dictionary as under: "Cause" -- Each separate antecedent of an event. Something that precedes and brings about an effect or a result. A reason for an action or condition. A ground of a legal action. An agent that brings, something about. That which in some manner is accountable for condition that brings about an effect or that produces a cause for the resultant action or state; "Cause of action". -- The fact or facts which give a person a right to judicial relief. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle party to sustain action and give him right to seek a judicial remedy in his behalf. Thompson v. Zurich Ins. Co., D. C. Minn, 309 F. Supp. 1178, 1181. Fact, or a state of facts, to which law sought to be enforced against a person or thing applies. Facts which give rise to one or more relations of right-duty between two or more persons. Failure to perform legal obligation to do, or refrain from performance of some act. Matter Exh.17 Spl.C.S. (coml.) nos.17/2017 & 18/2017 page 6 of 9 for which action may be maintained. Unlawful violation or invasion of right. The right which a party has to institute a judicial proceeding. 16. The Hon’ble High Court then referred to the judgment of the Hon’ble Apex Court, in the case of A. B. C. Laminart Pvt. Ltd. V/s A. P. Agencies {AIR 1989 SC 1239} wherein it was observed that "A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right used on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff." 17. Order VI Rule 2(1) CPC lays down that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Rule 3 of Order VI then lays down that the forms in Exh.17 Spl.C.S. (coml.) nos.17/2017 & 18/2017 page 7 of 9 Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings. 18. Keeping in mind the aforesaid observations of the Hon'ble Apex Court and the Hon'ble High Court and the provisions of Order VI, I have to examine whether the pleadings in the counter claim disclose a cause of action. 19. It is pleaded in the counter claim that the defendant have a Five Star Hotel at Varca, Salcete, Goa in the name of Caravela Beach Resort Goa. It is alleged that the plaintiff claims to have an assignment agreements of the Zee Entertainment Enterprises, Eros International Media Ltd. and Shemaroo Entertainment Ltd. and had acquired rights on the ground public performance of sound recordings of the songs contained in the films of said recordings but the agreements do not permit the plaintiff to act as owners of the Copyright in respect of the said songs and that the said agreements are exfacie without any consideration. 20. It is then alleged that the plaintiff is not a registered Copyright society under Section 33 of the Copyright Act and is therefore not entitled to do business of issuing licences for exploitation of the copyright of M/s Zee, M/s Eros and Shemaroo Companies. It is specifically pleaded that the plaintiff is not entitled to carry on business and issue license after collecting amounts in respect of any copyright works of the companies and as such, the defendant is entitled for an injunction against the plaintiff form in any way carrying the business of Exh.17 Spl.C.S. (coml.) nos.17/2017 & 18/2017 page 8 of 9 issuing licences and collecting license fees in respect of any copyrighted works of Zee Entertainment Enterprises Ltd., Eros International Media Ltd. and Shemaroo Entertainment Ltd., in its own name. 21. It is also pleaded that the plaintiff and its officials have been visiting the said hotel of the defendant at Varca from time to time demanding fees for licence to be issued under the Copyright Act and were also demanding huge sums of money from the defendant under threat of prosecution under Criminal law and of civil litigation and had filed a false complaint before the PI Colva, seeking registration of FIR for infringement of Copyright. It further alleged in the counter claim that reputation of the defendant has suffered tremendously due to the action of the plaintiffs. 22. The defendant has prayed (a) that the plaintiff, their agents, servants, representatives or anybody acting on their behalf be restrained from in any manner carrying in the business of issuing and granting licenses and collecting license fees in respect of any copyrighted works of Zee Entertainment Enterprises Ltd. Eros International Media Ltd. and Shemaroo Entertainment Ltd. and Yash Raj Films Pvt. Ltd.; (b) the plaintiff be ordered to pay a compensation of `1,00,00,000/-; (c) the plaintiff be restrained from making any demand on the defendant (plaintiff to the counter claim) and to obtain a licence from and pay any licence fee to the plaintiff (defendant to the counter claim) in its own name in respect of any copyrighted works including that of Yash Raj Films, Shemaroo Entertainment Pvt. Ltd., Eros International Media Ltd. and Zee Entertainment Enterprises; (d) Exh.17 Spl.C.S. (coml.) nos.17/2017 & 18/2017 page 9 of 9 the defendant to the counter claim i.e. the plaintiff be directed to pay damages of `1,00,00,000/- to the plaintiff to the counter claim i.e. the defendant as damages both punitive and exemplary due to the reputation of the plaintiff to the counter claim being brought down. 23. In the case of Leopold Café & Stores (supra), the Hon’ble Bombay High Court has restrained the defendant from in any manner carrying on the business of issuing and granting licenses and collecting license fees in respect of any copyrighted works of Yash Raj Films Pvt. Ltd., UTV Software Communications Ltd., and Shemaroo Entertainment Pvt. Ltd. under the Copyright Act, 1957, in its own name and from making any demands on the Plaintiffs to obtain a license from and pay any license fee to the Defendant in its own name in respect of any copyrighted works. 24. I am therefore of the considered view that the pleadings in the counter claim disclose a cause of action against the plaintiff. As such, the counter claim cannot be rejected by taking recourse to O.VII, R. 11 CPC. 25. Hence, the applications are hereby dismissed. Margao Dated:28.02.2018. ( Edgar P. Fernandes ) District Judge-1 South Goa, Margao. Cg/-

CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 1 of 12 C O M M O N O R D E R (below Exhs.4 and 14) (Delivered on this the 12th day of the month of December of the year 2018). 1. As these two applications are filed by the plaintiff and the defendant respectively seeking an order of temporary injunction against each other, they are heard together. 2. Ld. Adv. Shri N.Pai has submitted that the case of the plaintiff that it has been assigned the copyrights by M/s Zee Entertainment Enterprises Ltd. (ZEE), M/s Eros International Media Ltd. (EROS) and M/s Shemaroo Entertainment Ltd. (SHEMAROO) and were the authorised agents of M/s Yash Raj Films Pvt. Ltd. (YRF) is supported by the agreements with the said companies and therefore, the plaintiff had a locus of filing this suit. 3. Taking me through the affidavit filed by Dhananjay Dadhich, Ld. Adv. Shri N.Pai submits that it proves the cause of action. Ld. Adv. Shri N.Pai submits that it is not the case of the plaintiff that they have a licence to play the music for which the said companies have a copyright but it is the case of the defendants that the plaintiff is not entitled to issue a licence, in terms of Section 33. 4. Taking me through Sections 30, 54 and 55 of the Copyright Act and the judgments of the Hon'ble Apex Court, in Midas Hygiene Industries (P) Ltd. v/s Sudhir Bhatia and others CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 2 of 12 {(2004) 3 SCC 90} and M/s Leopold Café & Stores & Anr. V/s Novex Communications Pvt. Ltd. {AIR 2014 SCC Online Bom 1342}, of the Lahore High Court in the case of Kartar Singh Gayani and others V/s Ladha Singh {AIR 1931 Lah. 624}, of the Hon'ble Delhi High Court, in the case of M/s Event and Entertainment Management Association v/s Union of India & Ors. {2016 SCC on line Delhi 6567} and of the Hon'ble Bombay High Court, in the case of Asian Paints (i) Ltd., V/s M/s Jaikishan Paints & Allied Products {2002(4) M.L.J. 536}, Ld. Adv. Shri N.Pai submits that the application be granted. 5. As against this, Ld. Adv. Shri C. A. Coutinho has submitted that the defendants had very clearly pleaded that they do not use the Sound Recordings for which the plaintiff is claiming a copyright and, taking me through Section 14(a)(iii) of the Act, Ld. Adv. Shri C. A. Coutinho submits that the performance of the work has to be in public. The learned advocate has submitted that though the plaintiff has produced a CD of the recording, allegedly made by Dhananjay Dadhich, it does not show that it was a public performance and therefore, there is no question of granting an injunction. 6. Taking me through Sections 33, 44 and 48 of the Act, Ld. Adv. Shri C. A. Coutinho has submitted that the plaintiff cannot do business in copyright unless it is a registered society. Ld. Adv. Shri C.A.Coutinho has placed reliance on the judgment of the Delhi High Court, in the case of M/s Event and Entertainment Management Association V/s Union of India & Ors. Writ Petition CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 3 of 12 no.12076/2016, passed on 12.10.2017, in support of his arguments. Ld. Adv. Shri C. A. Coutinho submits that the application for injunction filed by the plaintiff is liable to be dismissed while the one filed by the defendant has to be granted. 7. Ld. Adv. Shri N.Pai, in rejoinder, has submitted that in the judgment of the Delhi High Court M/s Event and Entertainment Management Association dated 12.10.2017 (supra), no relief was granted and, taking me through the provisions of Section 60, Ld. Adv. Shri N.Pai submits that the counter claim and the application for temporary injunction filed by the defendants does not lie. 8. I have perused the two applications, the replies thereto, the pleadings of the parties, the records and considered the arguments advanced by Ld. Adv. Shri N. Pai on behalf of the plaintiffs and Ld. Adv. Shri C. A. Coutinho on behalf of the defendants. 9. It is the case of the plaintiff that it was assigned the On Ground Performance Rights in the Sound Recording of the Songs contained in the Films which are part of the repertoire of ZEE, the repertoire of Audio Songs/ Sound Recordings EROS and SHEMAROO and was appointed authorised agent by YRF. 10. Alleging that the defendant, without obtaining the requisite license from the plaintiff, was committing infringement of its copyrights, the plaintiff has filed the suit and this application seeking to restrain the defendant from publicly performing or in any manner communicating the sound recording works which are assigned and CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 4 of 12 authorised to the plaintiffs or to allow its premises or any premises under its control to be used for the said purposes, without licence from the plaintiff or from otherwise infringing the copyright in the work owned and protected by the plaintiff. 11. As against this, it is the case of the defendant that it does not use the sound recordings of the songs of which the plaintiff claims a copyright. Claiming that the plaintiff is not entitled to carry on the business and issue license after collecting amounts in respect of any copyrighted works of the said companies, the defendant has filed a counterclaim and the application at Exh.14 praying that the plaintiff be restrained from (i) in any manner carrying the business of issuing and granting licences and collecting licence fees in respect of any copyrighted works, in their own name; and (ii) from making any demands on the defendants to obtain a license from and pay any licence fee to the plaintiff in its own name in respect of any copyrighted works. 12. Section 55 (1) lays down that where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. 13. Section 18(1) of the Act lays down that the owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 5 of 12 limitations and either for the whole of the copyright or any part thereof. Sub section (2) then lays down that where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly. 14. The plaintiff that has produced on record, the copies of the agreements entered with the ZEE, EROS and SHEMAROO, which prima facie proves that the said companies had assigned their copyrights to the plaintiff. It therefore requires to be concluded that the plaintiffs is required to be treated, for the purposes of the Act, as the owner of copyright. 15. Section 30 of the Act lays down that the owner of the copyright in any existing work of the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing by him or by his duly authorised agent. The plaintiff has also produced the Agency Agreement dated 27.04.2016 executed between it and YRF. 16. The plaintiff has placed on record the affidavit of Dhananjay Dadhich, who has stated on oath that he is the Senior Sales Executive of the plaintiff and that on 20.03.2017, had visited “Caravela Beach Resort Goa” situated at Varca, Goa while there was a Bollywood Night organized in Saturday Disco, which is situated within the premises of the said Resort and that he found and heard CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 6 of 12 Bollywood songs wherein the plaintiff has On Ground Public Performance Rights of Sound Recordings, which were played for commercial exploitation without the express or implied consent of the copyright owners. He has further stated on oath that in order to substantiate his findings, he recorded the songs “Ude Dil Befikree” from the film “Befikree”, which is the copyright of YRF, on his mobile handset while it was played at the Saturday Disco, which he later saved on his laptop and converted the same into a VCD/DVD. 17. The defendant has denied that Dhannajay Dadhich visited their property or that Bollywood songs referred to by the plaintiff were communicated/sung to the public and that Dhannajay Dadhich had filed a false affidavit. The defendant has pleaded that the CD/ DVD was not recorded in the premises of the defendant and even otherwise, it does not show presence of any public. 18. In my considered view, the positive facts asserted by Dhannajay Dadhich, on oath, in his affidavit will have to be prima facie accepted. As submitted by Ld. Adv. N. Pai, it is not the case of the defendant that they have the licence to play the said songs. I am therefore of the view that the plaintiffs have prima facie proved the infringement of its copyright. 19. The Hon'ble Apex Court, in the case of Midas Hygiene Industries (P) Ltd. (supra), has observed that the law on the subject is well settled that in cases of infringement either of trade mark or of copyright, normally an injunction must follow and the grant of injunction also becomes necessary if it prima facie appears CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 7 of 12 that the adoption of the mark was itself dishonest. 20. In the case of Kartar Singh Gayani (supra), the Hon'ble Court observed that it will be obvious that the plaintiff cannot protect himself from the consequence of such an injury except by an injunction which is one of the remedies open to him under the Copyright Act. 21. Section 33(1) of the Act lays down that no person or association of persons shall, after coming into force of the Copyright (Amendment) Act. 1994 commence or, carry on me business of issuing or granting licences in respect of any work in which copyright subsists or in respect of any other rights conferred by this Act except under or in accordance with the registration granted under sub-section (3). The first proviso lays down that provided that an owner of copyright shall, in his individual capacity, continue to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society. The second proviso further provides that the business of issuing or granting license in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act. The third proviso then provides that a performing rights society functioning in accordance with the provisions of section 33 on the date immediately before the coming into force of the Copyright (Amendment) Act, 1994 shall be deemed to be a copyright society for the purposes of this Chapter and every such society shall get itself registered within a period of one year from CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 8 of 12 the date of commencement of the Copyright (Amendment) Act, 1994. 22. In the case of M/s Event and Entertainment management (supra) the Hon'ble High Court of Delhi observed that since PPL, IPRS and Novex were not registered as copyright societies, they are by virtue of Section 33(1) of the Act proscribed from carrying on the business of issuing or granting licences. It was also observed that there is no obligation on any entity to register itself as a copyright society; however, if they fail to do so, it cannot carry on the basis as indicated in Section 33(1) of the Act without being so registered. 23. However, in the case of Asian Paints (supra), the Hon'ble Bombay High Court observed that registration under the Copyright Act merely raises a prima facie presumption in respect of the particulars entered in the Register of the Copyright and even if the plaintiff's work was not registered, the plaintiff having established that it had created the same prior to the defendant mere registration by the defendant of its work cannot defeat the plaintiff's claim. 24. Further, the Hon’ble Bombay High Court, in the case of Leopold Cafe & Stores (supra) observed: “It is not, I believe, the mere "carrying on of business" that is interdicted by Section 33. It is the carrying on of the business of issuing or granting licenses in its own name, but in which others hold copyright. Every agent also CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 9 of 12 "carries on business", but that is the business of agency, with the agent functioning as such, i.e., clearly indicating that it is acting on behalf of another, one who holds the copyright. This is the only manner in which both Section 33 and Section 30 can be harmonized. An absolute bar even on an agency, invoking Section 33, would undoubtedly run afoul of the plain language of Section 30 and render the words "or by his duly authorised agent" entirely otiose. I very much doubt it could have been the legislative intent of Section 33 to compel every copyright owner to set up a separate division to monitor the use of its works. Entities like YRF and Shemaroo typically hold copyright in a very large number of works. It is perhaps more efficient for them to appoint an agency to ensure that those who use their works have valid licenses and have paid the license fees. These licenses are, however, to be issued in the name of the copyright owner and license fees to be collected for and on behalf of the copyright owner. A society like PPL, on the other hand, can issue license fees in its own name. It need not disclose the names of the original holders of the copyright. The distinction Mr. Bhatt draws is, I think, material; one without which Sections 33 and 30 cannot both co-exist. 14. There is also the seemingly nice distinction between "issuing" and "granting" a license. Both words must be read together with their conjunctive. "Issuing" speaks possibly to the physical act of generating a license. CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 10 of 12 "Granting" is the legal effect of that issuance. What Section 33 forbids is an engagement in the "business of issuing and granting" licenses in works in which copyright subsists. This cannot mean that a copyright owner cannot appoint an agent to grant any interest on behalf of the copyright owner. That is something that Section 30 in terms permits. The express permission in Section 30 cannot be occluded by an extension of the express prohibition in Section 33. All that the two sections, read together, require is that the factum of agency must be disclosed so that the licensee knows that it has a valid license from the copyright owner; i.e., that it is made known by the agent that it is acting on behalf of the holder of copyright in the works in question, even though the licensee may throughout deal only with the agent and never directly with its principal. The minute the principal is undisclosed and the license is issued and granted in the agent's own name, the prohibition in Section 33 comes into play.” 25. In the cast at hand, the plaintiff is not issuing the licences in its own name but as the assignee and the authorised agent respectively of the said companies. I am therefore unable to uphold the contention of Ld. Adv. C. A. Coutinho that the plaintiff cannot do business in copyright unless it had registered itself as a registered society. 26. It is required to be noted that the plaintiff has also produced CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 11 of 12 the General Power of Attorney dated 12.05.2017 issued by M/s Yash Raj Films Pvt. Ltd. authorizing the plaintiff to commence and conduct any suit before any judicial authority against unauthorized public performance of the Sound Recordings from the company’s repertoire by various Hotels at Goa listed in “Annexure A”. the defendant is found listed in the said list. 27. Section 60 of the Act lays down that where any person claiming to be the owner of copyright in any work, by circulars, advertisements or otherwise, threatens any other person with any legal proceedings or liability in respect of an alleged infringement of the copyright, any person aggrieved thereby may, notwithstanding anything contained in section 34 of the Specific Relief Act, 1963, institute a declaratory suit that the alleged infringement to which the threats related was not in fact an infringement of any legal rights of the person making such threats and may in any such suit— (a) obtain an injunction against the continuance of such threats; and (b) recover such damages, if any, as he has sustained by reason of such threats. 28. However, the proviso to this section lays down that this section does not apply if the person making such threats, with due diligence, commences and prosecutes an action for infringement of the copyright claimed by him. 29. In the case at hand, as the plaintiff, as assignee of ZEE, EROS and SHEMAROO and as authorised agent of YRF, had filed the suit against the defendant for infringement of the copyright claimed by it CNR NO: GASG01-000992-2017 Exhs.4 & 14 Spl. Civil Suit (Coml.)no.17/2017 Page 12 of 12 prior to the defendant filing its counterclaim and the application at Exh.14, I am in agreement with Ld. Adv. N. Pai that the application for injunction filed by the defendant cannot be granted. 30. Hence, the application at Exh. 4 is hereby granted and the application, at Exh. 14, is hereby dismissed. Pending the hearing and final disposal of the suit, the defendant is hereby restrained from publicly performing or in any manner communicating the Sound Recording Works of ZEE, EROS, SHEMAROO and YRF, which are assigned and authorised to the plaintiffs and/or to allow its premises or any premises under its control to be used for the said purposes, without licence from the plaintiff or from otherwise infringing the copyright in the work owned and protected by the plaintiff. Margao Dated:12.12.2018 ( Edgar P. Fernandes ) District Judge-1 South Goa, Margao. Cg/-

CNR NO.GASG01-000992-2017 Exh. 48 Spl. Civil Suit (coml.)no.17/2017 Page 1 of 2 O R D E R(below Exh.48) (Delivered on this the 22nd day of the month of April of the year 2019). 1. It is a matter of record that the case management hearing was conducted on 04.02.2019 and the parties were directed to file their list of witnesses, alongwith the affidavits on 13.02.2019 and the matter was posted for recording the evidence on 06.03.2019, 13.03.2019 and 15.03.2019 and for affidavit of defendant on 16.03.2019 and cross examination on 20.03.2019 and for final arguments on 27.03.2019. 2. However on 13.02.2019, the plaintiff filed an application that the witnesses listed are residents of Mumbai and undertook to serve an advance the copy of the affidavit in evidence to the defendant two weeks prior to the dates fixed for their cross examination and as the defendant did not object, the application came to be granted. No submissions were made in the said application that any documents were not in possession of the plaintiff or that they were produced in evidence before any Court. 3. However on 06.03.2019, an application for extension of time was made contending that most of the documents required to be produced have been deposited in the Court of the IInd Additional Chief Civil Judge, Hyderabad, as is stated in this application and, again, as the defendant did not object, time was granted. Though today also this CNR NO.GASG01-000992-2017 Exh. 48 Spl. Civil Suit (coml.)no.17/2017 Page 2 of 2 application is filed, there is absolutely nothing produced by the plaintiff to even indicate that the plaintiff had asked for the return of the original documents. 4. This being a commercial suit is required to be decided as per the timelines and the plaintiff is required to keep the dates fixed by the Court in the case management hearing. 5. As discussed earlier, the plaintiff at no point of time intimated to this Court about the deposit of the original documents or inability to proceed with the evidence. However, in the interest of justice one last and final opportunity is granted to the plaintiff subject to a condition precedent that the plaintiff shall place on record documents to show that they had applied for the documents from the other court at any time after the filing of the suit. Margao Dated:22.04.2019. ( Edgar P. Fernandes ) District Judge-1 South Goa, Margao. Cg/-

1 S.C.S. 17/2017 GASG010009922017 Exh. 50 GASG010009922017 ORDER BELOW EXHIBIT 50 (Delivered on this the 21st day of the month of August of the year 2019) 1. The defendants have objected to this application on the ground that there is no acceptable reason or justifiable cause shown why the documents sought to be produced were not submitted at the earlier stage when the said documents were within the domain and control of the plaintiff and that the plaintiff has failed to establish the due diligence. The defendants have further submitted that the documents cannot be produced after a delay of 19 months and 8 months respectively, in the commercial suit where stringent time lines are set out. 2. Ld. Adv. Shri Pai has submitted that the plaintiffs have relied upon an Agreement dated 27.04.2016, copy of which was annexed to the plaint as 'Annexure 6' and as the said Agreement has expired during the pendency of this suit, the the renewals of the said agreement are sought to be produced by this application. 2 S.C.S. 17/2017 GASG010009922017 Exh. 50 3. Ld. Adv. Shri Pai has submitted that the production of the documents would not change the nature of the suit or the reliefs prayed for. It is the contention of the learned advocate that the delay for producing the documents from the date of their execution was because the plaintiffs are prosecuting several suits in various Courts for violation of the rights of the plaintiffs similar to the violations by the defendants in this case. 4. Ld. Adv. Shri Pai has further submitted that as the trial has not yet started, no prejudice will be caused to the defendants because they will get opportunity to cross examine the plaintiffs on the documents sought to be produced whereas great prejudice will be caused to the plaintiffs if the documents are not allowed to be produced. 5. As against this, Ld. Adv. Ms. S. Pereira has submitted that the documents sought to be produced were executed on 17.01.2018 and 08.01.2019 respectively and that there is no justification given by the plaintiffs for the delay. It is the contention of Ld. Adv. Ms. S. Pereira that the plaintiffs had filed a statement of truth on 14.08.2018, i.e after the execution of the document dated 17.01.2018, stating that all the documents in possession, power or custody of the plaintiffs have been disclosed and as such, it is clear that the plaintiffs had suppressed the document dated 17.01.2018 in the statement of truth till filing of this application. 3 S.C.S. 17/2017 GASG010009922017 Exh. 50 6. Ld. Adv. Ms. Pereira further submitted that though the plaintiffs sought for the certified copies of certain documents from the other Courts, they did not seek for the certified copies of the documents sought to be produced by this application. 7. Ld. Adv. Ms. Pereira has then taken me through the order XI Rule 5 CPC, as amended by the Commercial Courts Act, and the judgment of the Hon’ble High Court of Delhi in the case of Nitin Gupta vs. Texmaco Infrastructure and Holding ltd. {MANU/DE/1554/2019}, and has submitted that the plaintiffs cannot be allowed to produce the documents at this stage of the proceedings. 8. I have perused the materials on record and have considered the arguments advanced. The question before me is whether the plaintiffs can be allowed to produce the documents? 9. Order XI Rule 1(1) CPC, as amended by the Commercial Courts Act, lays down that the plaintiff shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, alongwith the plaint including …. 10. Order XI Rule 1(5) then lays down that the plaintiff shall not be allowed to rely on documents, which were in the plaintiff’s power, possession, control or custody and not disclosed alongwith plaint or within the extended period set out above, save and except by leave of 4 S.C.S. 17/2017 GASG010009922017 Exh. 50 Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non disclosure alongwith the plaint. 11. The Hon’ble Delhi High Court, referring to the Order XI Rule 1(5) CPC, observed that unless the Commercial Divisions, while dealing with the commercial suits, start enforcing rules legislated for commercial suits, and refuse to entertain applications for late filing of documents, especially with respect to documents of suspicious character and continue to show leniency in the name of 'interest of justice' and 'a litigant ought not to suffer for default of advocate', the commercial suits will start suffering from the same malady with which the ordinary suits have come to suffer and owing whereto the need for the Commercial Courts Act, 2015 was felt and that the Commercial Division is thus not required to entertain or allow applications for late filing of documents, without any good cause being established for non disclosure hereof alongwith the pleadings. It can clearly be seen that the observations of the Hon’ble High Court of Delhi are in respect of documents that were existing but were not filed alongwith the suit. 12. In the case at hand, the plaintiffs have averred in the plaint that they are the appointed agents of M/s. Yashraj Films Pvt. Ltd. and have relied upon and produced the copy of the Agency Agreement dated 27.04.2012 alongwith the plaint. The documents sought to be produced are dated 17.01.2018 and 08.01.2019 and it is the case of the plaintiffs that they are the renewals of the Agreement dated 27.04.2012. Therefore, it is absolutely clear that the said documents were not in existence as on the date of filing of the suit but have come 5 S.C.S. 17/2017 GASG010009922017 Exh. 50 into existence after filing of this suit. As such,the documents sought to be produced do not come within the purview of the observations of the Hon’ble Delhi High Court. 13. The fact that the documents were not in existence as on the date of filing of the suit is a reasonable cause for non disclosure of the said documents alongwith the plaint and complies with the requirements of Order XI Rule 1(5) CPC. 14. The Statement of Truth is filed in terms of Order VI Rule 15A CPC, for the purpose of verification of the pleadings and as such, cannot have any reference of documents which are neither pleaded in the plaint nor relied upon by the plaintiff at the time of filing the suit and therefore, I am unable to uphold the contention of Ld. Adv. Ms. S. Pereira that as the plaintiffs had not referred to the documents sought to be produced in their Statement of Truth, they cannot be allowed to produce the documents at this stage. 15. As it is the case of the plaintiffs that the documents sought to be produced are in respect of the renewal of the Agency Agreement relied upon by the plaintiffs, not allowing this application would cause grave prejudice to the case of the plaintiffs. 16. The suit is presently at the stage of recording plaintiffs’ evidence and the first witness is yet to step in the witness box. Therefore, no prejudice of whatsoever nature will be caused to the defendants if the 6 S.C.S. 17/2017 GASG010009922017 Exh. 50 documents are allowed to be produced as the defendants will get an opportunity to cross examine on the documents produced. 17. Hence, the application is hereby granted. Margao; Dated: 21.08.2019 (Edgar Fernandes ) District Judge-1 South Goa, Margao. ip*