w w w . L a w y e r S e r v i c e s . i n



K.P.M.Sundhram v/s Rattan Prakashan Mandir

    Interim Application Appeal No. 2243 of 1980, Suit Appeal No. 520 of 1980.

    Decided On, 27 April 1983

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE S.S. CHADHA

    For the Appearing Parties: Anup Singh, G.R. Chopra, Advocates.



Judgment Text

S. S. CHADHA J.


(1) THE plaintiff has instituted the present suit against defendants 1 to 3 for injunction, restraining them from printing, publishing and selling the specified books, rendition of accounts for the illegal gains made by the defendants for all unauthorised publications and for damages under the provisions of Ss. 55 and 57 of the Copyright Act, 1957 (for short called the Act).


(2) THE claim of the plaintiff in the suit in the nutshell is that he is a reputed author of the works known as:


(a) Principles of Economics in English and in Hindi (jointly with Prof. M. C. Vaish). (b) Text Book of Economics Theory in English. (c) Public Economics and Public Finance in English (jointly with Prof. K. K. Andley). (d) Theory of Income. Price and Growth in English. (e) Aye Thatha Mulya Sidhant in Hindi (jointly with Prof. M. C. Vaish and Prof. Rudra Dutt). (f) Public Economics and Public Finance in Hindi (Jointly with Prof. K. K. Andley and Prof. R. C. Aggarwal).


(3) IT is pleaded that the plaintiff had merely granted a licence to defendants 1 to 3 as publishers and printers to publish, and print, the aforementioned books under the written agreement dated March 21, 1959, for the work at Sl. No. (a) and the Hindi version under the agreements dated Dec. 2, 1962 and Oct. 8, 1963 and Jan. 9, 1964 in respect of the books mentioned at Sl. Nos. (b) to (c) respectively and the other three books were being printed and published without any agreement. The aforesaid agreements had subsequently been terminated on April 17, 1973 and thus the Printers and publishers are not entitled to print or publish the books and accordingly a prayer is made in the suit for a decree for an injunction restraining the defendants from printing publishing or selling copies of the books. The plaintiff also claims a decree against defendants 1 to 3 for rendition of accounts of the illegal gains made by defendants 1 to 3 for all the unauthorised publications. The plaintiff also claims an award of damages of Rs. 10,000 for the loss of reputation suffered by the plaintiff.


(4) IT is also stated in the plaint that after the termination of the agreements on April 17, 1973, the plaintiff filed a suit, being Suit No. 172-A of 1973 in this Court praying for the filing of the arbitration agreement between the parties and for reference of the disputes to arbitration including the claim of the plaintiff for payment of the royalty in respect of the books mentioned at Sl. Nos. (a) to (c) above for the period of three years prior to the termination of the agreements. The arbitration proceedings have ended into an award which has been filed in this. court and objections for setting aside the award have been filed. They are pending in Suit No. 1211a of 1981 and O. M. P. No. 80 of 1978. The plaintiff has also filed another suit for injunction and rendition of accounts from April 17, 1973 to April 1976 for the illegal publication and sale of the books after the termination of the agreements, being Suit No. 133 of 1977. Issues have been framed in that suit but the evidence has yet to tee recorded. The plaintiff has filed yet another suit being Suit No. 67 of 1980 for injunction and rendition of accounts for the illegal publication and sale of the books by defendants 1 to 3 for the period April 1976 to April 1979.


(5) IN the present suit the plaintiff alleges that he has now noticed the gross violation of the copyright of the plaintiff by defendants 1 to 3. Allegations are made in the plaint of the suit that defendants 1 to 3 have changed the title of the original works, made a distortion and mutilation of the work of the plaintiff and co-authors prejudicial to their reputation and that the plaintiff never gave any authority to defendants 1 to 3 to print and publish the books in this manner. The details of infringement and the violation of the copyright of the plaintiff is alleged to be comprising of 15 publications by defendants 1 to 3 the details of which are divided into six categories in Para 8 of the plaint. CATEGORY NO. 1. The defendants have printed published and sold the following books with the following titles representing that the plaintiff is the author/co-author of these books:


(a) Money, Banking and International Trade (1979 Edition). (b) Labour Problems and Social Welfare (Second Edition 1978). (c) Money, Banking, Trade and Finance (1978 Edition). (d) Monetary Theory (1979 Edition).

The plaintiff pleads that it is a case of misuse of the name of the plaintiff or a distortion and mutilation of the other works of the plaintiff and is prejudicial to his reputation. CATEGORY NO. 2. Defendants 1 to 3 have printed, published and sold the following five books and have represented that Shri K. P. M. Sundhram. the plaintiff and Shri M. C. Vaish, defendant No. 4. are the joint authors of these books. They are:(i) Co-operation (ii) Transport (iii) Public Finance (iv) Fiscal Economics (v) Public Economics and Public Finance. CATEGORY NO. 3.

Defendants l to 3 have printed, published and are selling the following three books entitled:(a) Advanced Micro Economics by Prof. K. P. M. Sundhram and Dr. M. C. Vaish (1st Edition 1979). (b) Advanced Economics Theory by Prof. K. P. M. Sundhram and Dr. M. C. Vaish (1st Edition). (c) Economic Analysis by Prof. K. P. M. Sundhram and Dr. M. C. Vaish (1st Edition).

It is averred that defendants 1 to 3 with a view to cheat the plaintiff and defendant No. 4 have changed the title of the book "principles of Economics" and has brought out substantially the same books under changed titles. The stand is that it is a gross distortion and mutilation of the original works. CATEGORY NO. 4. Defendants 1 to 3 have printed, published and sold a book entitled 'micro Economics' 1978 Edition by Prof. K. P. M. Sundhram as also a revised edition. The plaintiff claims to be an author of this manuscript and has engaged the services of M/s. Sultan Chand and Sons for the printing and publishing of this title. Defendants 1 to 3 have taken the subject-matter from the book "text Book of Economics Theory" and have cheated the plaintiff. CATEGORY NO. 5. Defendants 1 to 3 have brought out a book entitled "public Finance" by Prof. K. K. Andley and Prof. K. P. M. Sundhram. This is alleged to be a distorted title of the book entitled "public Economics and Public Finances". CATEGORY NO. 6. Defendants 1 to 3 have threatened to publish, print and sell the following six books:(1) Fiscal Economics (2) Indian Public Finance and Financial Admn. (3) Public Economics and Public Finance (Refresher Series). (4) Public Finance (Refresher Series). (5) Fiscal Economies (Refresher Series). (6) Indian Public Finance and Financial Administration (Refresher Series).


(6) THE defence of defendants 1 to 3 in the written statement is that the plaintiff is the authors of the books mentioned at Sl. No. (a) to (f) as stated either solely or with various co-authors and had entered into various copyright agreements with defts. 1 to 3. The copyright agreements in respect of various works still subsist in favour of defts. 1 to 3 and the books published by defendants Nos. 1 to 3 are in exercise of the rights conferred under the copyright agreements. Defendants 1 to 3 claim the printing, publishing and selling of the books without modifications or with modifications in accordance with the various agreements entered into between the plaintiff and defts. 1 to 3. The right of the plaintiff to terminate the agreements unilaterally in respect of the various works whereby the copyrights had been validly assigned in favour of the defendants 1 to 3 is questioned in the written statement on the ground that the assignment of the copyright was during the legal term of the copyright as envisaged in Section 22 of the Act. Defendants 1 to 3 claim to be within their right to print, publish and sell the books as the copyright in respect of the books vests solely with defendants 1 to 3. It is denied that there is any distortion or mutilation of the works of the plaintiff. The averment is that as the Plaintiff refused to edit and revise the books, it was got edited from another author for printing, publishing and selling the same within the rights conferred on defendants 1 to 3 under the agreements as well as under the law. It is pleaded that books at Sl. Nos. (a), (c) and (d) in category No. 1 is made but of the work called Financial Organisation Solved Papers purchased outright by defendants 1 to 3 vide receipt dated August 16, 1954. Book at Sl. No. (b) is only a rearrangement of the work purchased by defendants 1 to 8 on October 17, 1954. It is alleged that books in category No. 2 have only been advertised but no printing and publishing has been done. The books mentioned in Category No. 3 are alleged to have been made out of the work Principles of Economics assigned to defendants 1 to 3 under agreement dated March 21, 1959. The book mentioned in Category No. 4 is pleaded to be made out of the text 'book of Economics Theory transferred to defendants 1 to 3 under the agreement dated October 8. 1963. The books mentioned in Category No. 5 are stated to be out of the work transferred to defendants 1 to 3 under agreement dated January 9, 1964. In respect, of the books in Category No. 6 the plaint merely alleges a threat and there has been no publication.


(7) IT is pleaded that the plaintiff and his co-authors have infringed the copyright, assigned to defendants 1 and 3. under the agreement dated March 21, 1959 in respect of the work "principles of Economics" by publishing the same works through other publisher, namely, M/s. Vikash Publishing House (P.) Limited and M/s. UBS Publishers and Distributors (P.) Limited. In a suit filed by defendants 1 to 3 in the courts at Agra, the plaintiff herein and those publishers were restrained from printing, publishing and selling the various books by the District Judge. Agra. The plaintiff and other defendants there filed an appeal against, the said order in the High Court of Judicature at Allahabad. The High Court of Allahabad after taking into consideration the welfare and the benefit of the students allowed the plaintiff and other publishers to publish further editions of the books on the condition that within two months of that order a complete account of the number of books printed, published and sold and those remaining in stock would be furnished and that the plaintiff would either deposit, in court within two months 20% of the sale price of the books sold or would furnish bank guarantee to the satisfaction of the court in respect of the said 20%. It was further ordered that in respect of the sales which would take place after submission of the accounts, the plaintiff would deposit, or furnish bank guarantee within three months of the said order.


(8) ALONG with this suit the plaintiff moved the present I. A. 2243/80. Notice was issued to the defendants and in the meanwhile defendants 1 to 3 were restrained from selling or publishing the books mentioned in categories 1 to 5 above. This application is for disposal after notice to the parties.


(9) THE argument of Shri G. R. Chopra, the learned counsel for the plaintiff, is that all that was granted under any of the terms of the admitted agreements dated March 21, 1959. December 2. 1962 for the work of Principles of Economics in English and Hindi respectively, or agreement dated October 8- 1963 for the Text Book of Economic Theory or agreement dated January 9, 1964 for Public Economic and Public Finance was a bare licence to print and publish and that though it was a sole and exclusive Permission, it was nevertheless a bare licence. It could not by any stretch of imagination or by enlarging the scope of the terms amount to the grant of any right, whole or partial, or any interest in the copyright. There was no ambiguity in the language employed in the agreements and there has been no assignment of any part of the copyright. The subsequent two agreements between the parties make it abundantly clear and specific "that the copyright for the works shall belong to the author during the legal terms of copyright. " On the other hand. the contention of Shri Anoop Singh, the learned counsel for defendants 1 to 3 is that under all the agreements the plaintiff had admittedly agreed that the publishing and selling rights of the work shall be vested in and remain with the publishers during the legal terms of the copyright. It is urged that it can only indicate the assignment or transfer of the interest in the copyright as under S. 18 of the Act partial assignment is permissible in law. Based on. para 8 of the agreement dated March 21, 1959 the submission is that it leaves no doubt that the plaintiff and his co-authors had transferred the copyright in the book to defendants 1 to 3. Copyright includes the right to reproduce the work in any material from or to publish the work or reproduce any translation of the work. Reliance is placed on Halsbury's Laws of England. Vol. IX Paras 866, 867 and 878 as to what is partial assignment and licence. Reliance is also placed on Chaplin v. Leslie Frewin (Publishers), 1965 (3) All ER 764 on the question of construction of the document and the case in which it was held that copyright had been assigned. Another submission is that the plaintiff had no right to unilaterally terminate the agreements as the rights had been transferred during the legal terms of the copyright.


(10) I cannot help but go into the construction of the agreements. I must make it clear first that whatever I may observe as regards the construction of these agreements is not. intended to be a decision as to the proper construction of the agreements. It is merely in order to consider the prima facie case and the balance of convenience between the parties at the interim stage of the suit for the purpose of granting relief till the disposal of the suit.


(11) THE agreement of March 21, 1959 for the book "principles of Economics" reads as follows:


"an agreement made this twenty first day of March 1950 between Ratan Prakashan Mandir (hereinafter called the Publishers), which terms shall include their heirs, executors, administrators or assigns, of the first part and Prof. M. C. Vaish, M. A. , LL. B. of Baralseni College, Aligarh and Prof. K. P. M. Sundhram of Sri Ram College of Commerce. Delhi and his/theirs heirs, executors, administrators or assigns (hereinafter called the Author/authors of the second part. Whereas the (have agreed to prepare) work on Principles of Economics. And whereas the parties wish to enter into a formal agreement, it is hereby mutually agreed as follows: 1. The authors undertake to deliver the manuscript of the work together with the actual material for illustrations. maps, or diagrams, free of charge or copyright free. ready for the printer and blockmaker not later than 31st July 1959. 2 (a). That the publishers undertake to bring out at their own cost the work mentioned above. (b) That the publishers undertake to pay to the authors or to their heirs, representatives, assigns or nominees, as the case may be a Royalty of 7?% to each author on the face value of the said work on all copies sold by the end of each Calendar year and the publishers shall pay in advance Rs. 500 to each of the two authors by the final delivery of the MSS to the publishers. 3. Should the authors neglect to deliver the work as provided in Cl. 1 by the date mentioned therein, the publishers may, if they think fit, decline to publish the work. in which case this agreement will be annulled, but the authors shall not be at liberty to publish the work elsewhere without first offering it to the publishers on the terms of this agreement. 4. That the Royalty account shall be submitted to the authors for verification by the middle of January and will be paid off by the end of March every year. 5. The authors, jointly and severally shall from time to time, revise the work and keep it up-to-date: and when the first edition is about to run out they shall, if he considers it necessary, deliver a revised edition to the publishers for print and publication and all subsequent editions shall be compiled and printed in the same manner. 6. The authors also hereby further agree that the publishing and selling rights of the work shall be vested in and remain with the publishers during the legal terms of copyright. 7. The authors guarantee to the publishers that the said work is in no way whatever a violation of any existing copyright, and that it contains nothing of a libellous or scandalous character. and they will indemnify the publishers from all suits, claims, proceedings, damages and costs which may be made, taken or incurred by or against them On the ground that the work is an infringement of copyright or contains anything libellous or scandalous. 8. The copyright for the work shall 'belong to the publishers during the legal term of copyright and the authors also agree that they will not compile, edit Or revise any similar work intended as a text book for college classes for any Other publisher nor will they give their help and advice nor become party in any way to any similar publication, during the existing term of copyright, and so long as the publishing and selling rights of the work are vested in and remain with the publishers: and will not publish or permit to be published any abridgement of the said work. Similar work or similar publication in this paragraph means a work of publication in the same subject and intended as a text book for college classes for the same classes and for the same Provinces of India as the work or publication under this agreement. 9. The authors undertake to edit and revise all subsequent editions of the work that may be called for, and should they refuse, neglect or be unable to do so for any reason or by reason of death. the expenses of revising and preparing each such further edition for press shall be paid by the publishers but be borne by the authors. 10. In the event of any difference arising between authors and publishers, touching the matter of this agreement or the rights or liabilities of the parties thereunder, the same shall be referred to arbitration of two persons, (one to be named by each party) or their umpire, in accordance with the provisions of the Arbitration Act. 11. If the Publishers shall, at the end of 5 years from date of issue of the work or at any time thereafter, notify to the Authors that the demand for the work has ceased, then this agreement shall be considered as terminated and the right to Print and publish the work shall revert to the authors and the publishers shall make over to the authors all blocks, electrotype, or stereo-plates at half the cost of production. In witness whereof we, the publishers abovementioned and the authors above-mentioned have affixed our signatures herein below, this twentyfirst day of March 1959. "


(12) THE agreement made on Dec. 2, 1962 for "principles of Economics" Hindi edition is in identical terms except that Cl. 8 has been omitted inasmuch as there is no clause "that the copyright for the work shall belong to the publishers. "


(13) THE agreement dated Oct. 8, 1963 for the text book of Economic Theory and the agreement, dated Jan. 9, 1964 for 'public Economics' and Public Finance is in identical words. The agreement, of Oct. 8, 1963 reads as follows:


"an agreement made this 8th day of October. 1963 between Ratan Prakashan Mandir thereinafter called the Publishers), which term shall include their heirs. executors, administrators or assignees of the first part and Prof. K. P. M. Sundhram, Department of Economics. Shri Ram College of Commerce, Delhi and his heirs, executors, administrators, or assignees thereinafter called the Author of the second part). Whereas the author has prepared (has agreed to prepare) the work A Text Book of Economic Theory in English and Hindi for Graduate Classes. And whereas the parties wish to enter into a formal agreement, it is hereby mutually agreed as follows: 1. The author undertakes to deliver the manuscript of the work together with the actual material for illustrations. maps, or diagrams, free of charge or copyright free, ready for the printer and blockmaker not later than Dec. 1963. 2. (a) That the publishers undertakes to bring out at their own cost the work mentioned above, (b) That the publishers undertakes to pay to the author or to his heirs, representatives, assignees or nominees, as the case may be, a Royalty of twenty per cent (20%). on the price mentioned on the said work on all copies sold by the end of each Calendar year. 3. Should the author neglect to deliver the work as provided in Cl. 1 by the date mentioned therein, the publishers may. if they think fit, decline to publish the work in which case this agreement will be annulled, but the author shall not be at liberty to publish the work elsewhere without first offering it to the publishers on the terms of this agreement. 4. That the Royalty account shall be submitted to the author for verification by the middle of April and will be paid off by the end of August every year. 5. The author shall, from time to time. revise the work and keep it up-to-date, and when the first edition is about to run out he shall, if he considers it necessary, deliver a revised edition to the publishers for print and publish and all subsequent editions shall be compiled and printed in the same manner. 6. The author also hereby further agrees that the publishing and selling rights of the work shall be vested in and remain with the publishers during the legal term of copyright. 7. The author guarantees to the publishers that the said work is in no way violation of any existing copyright, and that contains nothing of a libellous or scandalous character, and that he will indemnify the publishers from all suits, claims, proceedings, damages, and costs which may be made. taken or incurred. by or against them on the ground that the work is an infringement of copyright or contains anything libellous or scandalous. 8. The copyright for the work shall belong to the author during the legal term of copyright and the author also agrees that he will not compile, edit or revise any similar work for any other publisher nor will he give his help and advice nor become party in any way to any similar publication, during the existing term of copyright, and so long as the publishing and selling rights of the work are vested in and remains with the publishers and will not publish or permit to be published any abridgement of the said work. 'similar work' or 'similar Publication' in this paragraph means a work or publication on the same subject for the same classes and for the same provinces of India as the work or publication under this agreement. 9. The author undertakes to edit and revise all subsequent editions of the work that may be called for and should he refuse, neglect or be unable to do so for any reason or by reason of death. the expenses of revising and preparing each such further edition for press shall be paid by the publishers but be borne by the author. 10. In the event of any difference arising between author and publishers. touching the matter of this agreemen for the rights of or liabilities of the parties thereunder, the same shall be referred to arbitration of two persons (one to be named by each party) or their umpire, in accordance with the provisions of the Arbitration Act. 11. If the publisher shall at the end of 5 years from date of issue of the work or at any time thereafter, notify to the author that the demand for the work has ceased, then this agreement shall be considered as terminated and the right to print and publish the work shall revert to the author and the publishers shall make over to the author all blocks, electrotype, or stereo-plates at half the cost of production. In witness whereof we. the publishers abovementioned, and the author abovementioned have affixed our signatures herein below this the 3th October. 1963. "


(14) IT is extremely difficult sometimes to distinguish in cases of agreements between authors and publishers and sellers. whether it is an exclusive licence or partial assignment of the copyright to publish and sell. If the agreement contains express words or terms as to copyright then inference can be drawn. Where the agreement contains no such terms, but the consideration is the payment of royalties or a share of profits instead of down right payment, then the copyright is not assigned. It would be a case of the conferment of an exclusive licence to publish and sell,


(15) READING the various clauses of the agreements, and there is no doubt in respect of the later three agreements. that the sole and exclusive licence to print and publish the works is only granted to the publishers, defendants 1 to 3. The two agreements contain a term which is of vital importance that the copyright for the work shall belong to the author. The third agreement is silent as to in whom the copyright shall remain vested. Here the authors have agreed to grant to the publishers the sole and exclusive licence to print, publish and sell the works, but the plaintiff has reserved to himself the copyright of such work. This reservation in the agreement amounts to only a publishing agreement and not an assignment, partial or whole or of any interest in the copyright. In other words the publishing and selling rights of the works are only vested in the publishers and not any interest in the copyright which is specifically spoken in the three agreements as belonging to the authors. The rights of the parties are completely circumscribed by the terms of the agreements. The liability of the authors to revise the work and keep it up-to-date weighs heavily against the assignment of the copyright. The agreement of the authors not to compile, edit or revise any similar work for any other publishers nor becoming party in any way to any similar publication so long as the publishing and selling rights of the work are vested in and remain with the publisher is another circumstance against partial assignment of the copyright. The effect of the assignment is given in Section 18 of the Act. The assignee as respects the rights so assigned is treated for the purposes of the Act as the owner of the copyright and can prevent the infringements without any specific clause in the agreement. The last clause in all the agreements is significant. After 5 years if the demand for the work has ceased then the agreement was considered as terminated and the right to Print and publish the work was to revert to the authors. This clause when construed with the totality of the language used in the agreements before me. as a whole suggests that what was granted was an exclusive licence for a period of 5 years initially. It is not possible. prima facie. to infer that what was granted was

Please Login To View The Full Judgment!

a partial assignment of the copyright to the defendants. (16) THE agreement dated March 21, 1959 in respect of the work "principles of Economics" does contain a clause that the copyright for the work shall belong to the publishers. This loses significance when read with the other clauses. The work was not in existence on the date of the agreement and the work had to be delivered by 31st July. 1959. The agreement may be in relation to a future copyright, but it is a circumstance to be considered. There was no necessity of expressing in Cl. 6 that the publishing and selling rights of the work shall be vested in and remain with the publishers during the legal term. as the copyright is alleged to have been assigned to , the publishers. The other clauses relating to the consideration of the agreement by payment of the royalties of 7?% to each author rather than a sum of money paid down weigh, heavily against partial assignment. It rather appears that a sole and exclusive licence is conferred upon defendants 1 to 3. (17) I wish to say no more. The plaintiff has a strong prima facie case with a probability of success. The balance of convenience is also in favour of the plaintiff. I have expressed that the agreements. prima facie, did not assign the copyright but created a revocable licence in favour of defendants 1 to 3 to publish and sell the works and the agreements have been revoked by the plaintiff. With the termination of the agreements no right is left with defendants 1 to 3 to continue to publish and sell the works. I have also considered the alternative of imposing suitable conditions on defendants 1 to 3 for safeguarding the rights of the plaintiff till the disposal of the suit in case the injunction is not granted but on the facts of this case I have not found it either feasible or equitable to the plaintiff. The plaintiff claims that defendants 1 to 3 have mutilated and distorted the original works of the plaintiff by publishing various books in modified form as admitted by defendants 1 to 3. It is not possible at this stage to go into these questions and to judge whether those books are prejudicial to the reputation of the plaintiff. The Court's interference is, however, called for to protect the plaintiff from serious injury. The copyright, prima facie, vests in the plaintiff and allowing defendants 1 to 3 to continue to publish and sell would be an infringement of that right of the plaintiff. The mischief likely to issue from withholding of the injunction would be greater than that likely to arise from granting it. (18) I, therefore, allow the application and extend the ex parte iniunction granted on July 19, 1980 and extended by court's order dated April 30, 1981 till the disposal of the suit. In other words, defendants 1 to 3 are restrained from printing, publishing and selling the books mentioned in Categories 1 and 3 to 5 above till the disposal of the suit. The costs in the proceedings will be costs in the suit.
O R