Madras High CourtA/2867/2017allowed

M/S.Balaji Real Media P Ltd v. M/S.M.K.Enterprise

2017-06-08Honourable Dr Justice Anita Sumanth8 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) THURSDAY, THE 08TH DAY OF JUNE 2017 THE HON'BLE DR.JUSTICE ANITA SUMANTH A.No. 2867 OF 2017 IN O.A.No.510 of 2017 in C.S.No.372 of 2017 M/s.M.K.Enterprise, Rep.by A.Kumar, Partner, No.7, 1st Floor, 7th Street, Shenoy Nagar, Chennai- 600 030.

..Applicant/Plaintiff (O.A.No.510 of 2017 in C.S.No.372 of 2017) -Versus1.Balaji Real Media Pvt.Ltd.

Rep.by its Director, Thandra Ramesh, No.41, Manaswi Apartments, Marudham Street, Fathima Nagar, Valasaravakkam, Chennai- 600 087 2.Balaji Colour Laboratories, Film Nagar, Road No.2, Jublee Hills, Hyderabad, Telangana - 500 096. ..Respondents/Defendants (O.A.No.510 of 2017 in C.S.No.372 of 2017) A.No. 2867 of 2017 1.Balaji Real Media Pvt.Ltd.

M/s.M.K.Enterprise, Rep.by A.Kumar, Partner, No.7, 1st Floor, 7th Street, Shenoy Nagar, Chennai- 600 030. ..Respondent/Applicant/Plaintiff Application praying that this Hon'ble Court be pleased to pass an order to vacate the order of interim injunction dated 05.05.2017 made in O.A.No.510 of 2017 in the above suit C.S.No.372 of 2017 as against the applicants herein in respect of the world satellite rights (including India) of the Tamil and Telugu version of the picture titled "Production No.5"(Telugu - colour) now titled as "Aaradugla Bullet".

This Application coming on this day before this court for hearing the court made the following order The Plaintiff seeks a declaration that it is the sole and exclusive owner of the limited copyright in respect of the World Satellite Rights (WSR) of the Tamil and Telegu version of 'Production No.5' now entitled 'Aaradugula Bullet' for a perpetual period of 99 years and for permanent injunction restraining the defendants or their men from infringing its copyright in this regard.

2. Interalia, the plaintiff has filed an application seeking an interim injunction restraining the defendants from in any manner infringing the limited copyright. The matter was heard by a Vacation Bench of this Court on 05.05.2017 and an injunction granted till 07.06.2017. The defendants have now come up with this petition to vacate the interim injunction obtained.

3.Heard Sri.K.C.Krishnamoorthy, learned counsel appearing for the applicants/defendants and Sri.K.Muthukumarasamy, learned senior counsel appearing for Sri.A.Chidambaram, learned counsel appearing for the respondent/plaintiff.

4.Various contentions were raised by both the parties in relation to the rights canvassed by them relating to 'Production No.5' now titled as 'Aaradugula Bullet'. The applicant/plaintiff would contend that in terms of the agreement entered into between itself and the defendents, there was an embargo on the defendents to part with the WSR of the Tamil and Telegu version of 'Production No.5' now entitled 'Aaradugula Bullet'. He would rely on clause 9 of the agreement reading as follows:

'9) The Assignors hereby agree and undertake that they shall not exploit or cause or allow the assigned copyrights to be exploited in the territories mentioned herein by any other party or persons other the Assignee'

5. He would further state that a sum of Rs.75 lakhs had been remitted by the plaintiff to the defendents for this purpose. In these circumstances, he would submit that a prima facie exists for the grant of interim orders as prayed for.

6. The main submission of the respondent/defendants in the application to vacate stay is that the suit is in itself misconceived insofar as the Agreement for Satellite Rights dated 20.04.2014, one of the planks of the applicant/plaintiffs' case, relied on by it to substantiate the assignment of right in the film to itself by the defendents, relates to a film, different and distinct from the film referred to in the plaint. Reference was made to Schedule 'A' of the Agreement for Satellite Rights dated 20.04.2012, wherein the details of the film are stated to be as follows:- SCHEDULE 'A'

CINEMATOGRAPH FILM : PRODUCTION NO.5 LANGUAGE : TELUGU PRODUCER : MESSRS.BALAJI REAL MEDIA (PRIVATE) LTD.

STARRING : GOPICHAND, NAYANTHARA AND ASHUTHOSH RANA AND OTHERS MUSIC : TAMAN DIRECTOR : BOOPATHI PANDIAN PERIOD OF RIGHTS :PERPETUAL (99 YEARS)

7. Learned senior counsel would point out that 'Production No.5' starring Gopichand, Nayanthara and Ashuthosh Rana among others was to be directed by Boopathi Pandian and the music was to be scored by Taman. He would state that this was, in fact, 'Production No.4' that was commenced but shelved after a few futile attempts at production. He would, in addition, refer to document dated

11.08.2011, which is a lab confirmation executed interse the two respondents/defendants, which refers to Telugu feature film 'Production No.4', starring Gopichand, Nayanthara and others directed by Boopathi Pandian and with music director Taman. Separately, lab confirmation letter dated 21.01.2013 between the two respondents/defendants related to Telugu feature film 'Production No.5' in Telugu, starring Gopichand, Nayanthara and others directed by B.Gopal. He would also refer to two communications, one issued by the second respondent/defendant to one M/s.PVP Capital Limited, making reference to, and creating a lien over the world wide rights of an untitled Telugu feature film starring Gopichand and Nayanthara to be directed by B.Gopal. Another letter dated 29.10.2014 is issued to one Mr.

Ashwani Kumar Sehdev, a financier based in Sharjah, UAE, reffering to, and creating a second charge over the rights of the untitled film starring Gopichand and Nayanthara directed by B.Gopal. Thus, 'Production No.5' related to a Telugu film starring Gopichand, Nayanthara and others directed by B.Gopal and featuring music scored by Mani Sharma whereas the film sought to be addressed by the suit was to be directed by Boopathi Pandian, music scored by Taman. In fact, the publicity material filed along with the plaint also reveals that the Director of the film in issue is B.Gopal and not Bhoopathi Pandian as stated in Agreement dated 20.04.2012.

8.Though averments in the vacate stay petition are also to the effect that blank stamp papers and letterheads given to the plaintiff at earlier points in time were misused by the applicant/plaintiff compromising the very genuineness of the agreement dated 20.04.2012, learned senior counsel would not pursue this line of argument at this juncture obviously for the reason that the allegation has to be tested in trial.

9. In response, learned counsel for the applicant/plaintiff would answer the point that the two films, i.e. the film referred to in the agreement dated 20.4.2012 and 'Production No.5' were different, stating that the Director originally appointed, Bhoopathi Pandian, and the music director, Taman, had been replaced by B.Gopal and Mani Sharma respectively, at a later date. He would further state that the documents relied on by the respondents/defendants were self-serving, and unreliable. He would point out that one of the parties in the lab confirmations was Jaya Balaji Real Media Pvt. Ltd., and not Balaji Real Media Pvt. Ltd, a different entity altogether. In all, he would urge the Court to dismiss the vacate stay petition and instead make the interim orders absolute.

10.Having considered the submissions advanced and perused the documents filed, the following facts emerge:

Firstly, the film referred to in agreement dated 20.04.2012 between the parties is an untitled production starring Gopichand, Nayanthara and others to be directed by Boopathi Pandian with music to be scored by Taman. Even according to the publicity material produced by the applicant/plaintiff in the typed set, the Director of the film in question is not Boopathi Pandian but B.Gopal and the music is scored not by Taman, but Mani Sharma. While it is certainly possible that the crew producing the film could have changed in the course of production, this aspect throws a shadow of doubt on the version of facts as stated by the applicant that can be resolved only in trial. Secondly, the documents produced by the defendants/respondents are five in number.

While two are executed interse the respondents/defendants, two have been issued to third parties unconnected with the suit. There is, thus, no substance in the contention that all the documents produced are self-serving and liable to be ignored. Thirdly, the objection that Jaya Balaji Real Media Pvt. Ltd., is an entity different and distinguishable from the first defendant /respondent is also liable to be rejected for the reason that communication dated 29.10.2014 addressed to Mr.Ashwani Kumar Sachdeva, a third party, refers to Jaya Balaji Real Media Pvt. Ltd., formerly known as Balaji Real Media Pvt. Ltd. It thus appears that there has been a change of name of the first respondent/defendant and both names refer to one and the same entity.

conclusions drawn, I am of the considered view that no prima facie case exists for the grant/continuance of the interim orders as prayed for.

11. In view of the above discussion, this application is allowed and the injunction granted on 5.5.2017 vacated. C.S.372 of 2017 is referred to the Learned Master for trial. Since the issue involved is a short one, it will be appreciated, if the trial could be concluded within six months from the date of receipt of this order.

12. I hasten to add that all averments made by the parties in the course of arguments today have been appreciated by me solely from the angle of determining if there is a prima facie case for the continuance of the interim orders granted. The conclusions drawn, to the effect that there is no prima facie case established by the applicant, but rather, hotly contested and contentious positions that do not warrant or justify the grant of interim orders, are also to be seen in the same light. The Master is thus directed not to take into account or be influenced by any of the observations made hereinabove and proceed with the trial with a clean slate.

13. Ordered accordingly.

sd/.A.S.M.J 08.06.2017 //Certified to be a true copy// Dated this the day of 2017 jj 20.06.2017 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.