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Madhusri Konar & Another v/s Central Book Agency Private Limited


Company & Directors' Information:- U T AGENCY PVT. LTD. [Active] CIN = U45203WB1991PTC052617

Company & Directors' Information:- S K H AGENCY PRIVATE LIMITED [Active] CIN = U52390TG2013PTC085384

Company & Directors' Information:- O M AGENCY PRIVATE LIMITED [Active] CIN = U52321TN1961PTC004668

Company & Directors' Information:- S M AGENCY PVT LTD [Active] CIN = U51109WB1964PTC026129

Company & Directors' Information:- G R AGENCY LTD [Strike Off] CIN = U51109WB1951PLC019409

Company & Directors' Information:- E. C. BOOK INDIA PRIVATE LIMITED [Strike Off] CIN = U74300TN2008PTC067770

Company & Directors' Information:- S N Q S AGENCY PRIVATE LIMITED [Active] CIN = U52110TZ1999PTC008761

Company & Directors' Information:- A & N AGENCY PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909TN2003PTC052088

Company & Directors' Information:- A E AGENCY PRIVATE LIMITED [Active] CIN = U65993TN2000PTC044931

Company & Directors' Information:- S R W AGENCY PRIVATE LIMITED [Active] CIN = U52190WB2011PTC160006

Company & Directors' Information:- K L AGENCY PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC050493

Company & Directors' Information:- S B T AGENCY PVT LTD [Strike Off] CIN = U51103WB1965PTC026347

Company & Directors' Information:- S B M AGENCY PRIVATE LIMITED [Active] CIN = U51504TN2004PTC052953

Company & Directors' Information:- M P S AGENCY PVT LTD [Active] CIN = U51109WB1998PTC088149

Company & Directors' Information:- A. G. AGENCY PRIVATE LIMITED [Strike Off] CIN = U51109DL2008PTC186212

Company & Directors' Information:- S N AGENCY PVT LTD [Strike Off] CIN = U66010WB1989PTC047981

Company & Directors' Information:- V AND S AGENCY PRIVATE LTD. [Strike Off] CIN = U74999DL1986PTC025148

Company & Directors' Information:- BOOK CORPN. LTD [Strike Off] CIN = U22122WB1936PLC008514

    G.A. No. 3881 of 2017 & C.S. No. 219 of 2018

    Decided On, 19 September 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE MOUSHUMI BHATTACHARYA

    For the Plaintiffs: D. Ghosh, S. Roychowdhury, S. Dasgupta, Dwip Raj Basu, Advocates. For the Defendant: Dhruba Ghosh, Sr. Advocate, Siddhartha Banerjee, Lal Ratan Mondal, Munshi Mijanur Rahaman, Advocates.



Judgment Text

1. This is an application filed by the defendants for deletion of the name of the second plaintiff Dr. Hiralal Konar, on the ground that he has been improperly added to the array of parties to the suit.

2. The instant suit is for a decree of Rs. 3,62,46,902/-for recovery of outstanding royalty and other amounts payable to the plaintiffs on account of, what the plaintiffs allege, to be wrongful acts on the part of the defendants.

3. There are two plaintiffs in the suit. The case made out in the plaint is this; the plaintiff no. 1 is the daughter of Dr. Durlav Chandra Dutta, since deceased; the plaintiff no. 2 is the son-in-law of Dr. Durlav Chandra Dutta and is married to the plaintiff no. 1. The cause of action pleaded by the plaintiff against the defendant centres around textbooks written by Dr. Durlav Chandra Dutta who was a professor and the Head of Department of Obstetrics and Gynaecology, Nil Ratan Sarkar Medical College and Hospital, Kolkata. During his lifetime Dr. Dutta wrote several textbooks including a Textbook on Obstetrics and a Textbook on Gynaecology. The said textbooks were original literary works within the meaning of the Copyright Act, 1957 and the late Dr. Durlav Chandra Dutta was the first owner of copyright therein. By an agreement dated 7th November 1981, Dr. Dutta permitted one Jogendra Nath Sen, since deceased and the father of the defendant no. 2, to publish the textbooks written by Dr. Dutta under the caption "Textbook of Obstetrics" and "Textbook of Gynaecology" in English on the terms and conditions contained in the said agreement. The agreement stipulated that the copyright in the textbooks would remain solely with Dr. Dutta. A later textbook published on Obstetrics in 1983 and a new textbook on Gynecology written in 1989 were also given to Jogendra Nath Sen to print and publish on the same terms and conditions as stated in agreement aforesaid. Royalty payable in relation to the said textbooks was paid to Dr. Dutta during his lifetime and after his death on 29th December 1995 to his widow and his daughter (the first plaintiff) as the surviving legal heirs. Upon the death of the wife of Dr. Dutta on 7th April 2008, the plaintiff no. 1 became the sole owner of the copyright in the textbooks and entitled to obtain royalties for the said textbooks. The defendant no. 2 continued the business of his parents under the name of New Central Book Agency. Subsequently, the business of the said firm was taken over by the defendant no. 1 and the defendant no. 1 continued as the publisher of the said textbooks. After the death of Dr. Dutta and his widow, the payment of royalty to the plaintiff no. 1 was delayed and the defendants failed to provide full and proper accounts of sale of the said textbooks. The defendants finally made over statements of royalty to the plaintiff no. 1 accrued over different periods of time from which it would appear that the outstanding amount for the period 2010- 2011 as well as for subsequent years amounting to Rs. 1,00,01,828/- (Rupees one crore one thousand eight hundred and twenty eight only) had not been paid by the defendants to the plaintiff no. 1. By way of a letter dated 6th November 2013, the defendants assured the plaintiffs that they would pay Rs. 1 crore by August, 2013 and the balance amount by March, 2014. The defendants, however, failed to honour such commitment and instead made payments amounting to Rs. 84,93,563/- till September 2013. After giving credit for the payments received from the defendants, the plaintiff claims a sum of Rs. 3,62,46,902/-(being the decretal amount) on account of outstanding royalty and Rs. 1,22,42,332/- on account of interest thereon at 18 % per annum as well as compensation of 2 crores from the defendants. The plaintiffs rely on a letter dated 6th November 2013 from the defendants admitting sale of the textbooks in countries outside India and that 2 crores remain due and owing to the plaintiff on account of royalty for the periods 2010-11 and 2011-12. The plaint also mentions a title suit instituted by the defendants for declaration and injunction challenging the termination of an agreement entered into between the plaintiff and one Jaypee Brothers Medical Publishers. The application for interim relief filed by the defendants in the said title suit was dismissed by an order dated 11th March 2014 and an appeal filed therefrom was also dismissed on 5th November 2014, A Special Leave Petition filed against the order dated 5th November 2014 was disposed of without interfering with the said order. The defendants' license to print and publish the textbooks of Dr. Dutta has been terminated and the defendants have no right to print and publish the same any more.

4. Mr. Dhruba Ghosh, Senior Counsel appearing for the defendants/applicants submits that the agreement dated 7th November 1981 was with Dr. Durlav Chandra Dutta who had the sole copyright in the books in question and after the death of Dr. Dutta and his widow, the plaintiff no. 1, as the only surviving heir, became the sole owner of the copyright. He urges that the plaint admits the plaintiff no. 1 to be the sole owner of copyright in the said books. He submits that the statements made in the plaint that the plaintiff no, 2 edited the textbooks and made valuable contributions to several editions of the textbooks since 1985 is misconceived since the very same paragraph (paragraph 5 of the plaint) reiterates that the copyright in the textbooks continued to remain with the Dr. Dutta. He further submits that the judgment and decree dated 27th February 2017 passed in the title suit instituted by the defendants is only relevant to show that Dr. Hira lal Konar (plaintiff no. 2 here and defendant no. 2 in the title suit in the City Civil Court), was a signatory to the termination letter, which was adjudicated to be a genuine document. The judgment in the Title Suit did not decide whether the plaintiff no. 2 was the owner of copyright in the textbooks edited by him.

5. Counsel relies on the cover of a textbook (shown to the court) and to the first few pages edited by the plaintiff no. 2 which clearly mentions that the copyright lies with Dr. Durlav Chandra Dutta. It is submitted that since copyright has not devolved on the plaintiff no. 2, he is neither a necessary nor a proper party to the suit. Accordingly, the plaintiff no. 2 has no cause of action or right against the defendants nor has any right been disclosed in the plaint. It is submitted that the presence of the plaintiff no. 2 is not necessary for the adjudication of the right of the parties under the agreement and the plaintiff no. 2 can be struck of under Order 1, Rule 10 (2) of the Code of Civil Procedure 1908.

6. Counsel relies on Panne Khushali and another vs. Jeewanlal Mathoo Khatik reported in AIR 1976 MP 148 and Kasturi vs. Iyyamperumal and others reported in (2005) 6 SCC 733 where the Hon'ble Supreme Court relied on an English case and held that persons who are strangers to a contract and not entitled to the rights or liabilities arising out of it, are as much strangers to proceedings to enforce the execution of it as they are to a proceeding to recover damages for the breach of it. Relying on the aforesaid case, it is submitted that if the plaintiff no. 2 had not been impleaded as a party in the instant suit, he would not have had the right to intervene for being added as a party since he is neither a necessary nor a proper party to the cause pleaded by action of the plaintiff no. 1.

7. Mr. Debnath Ghosh and Mr. Soumya Ray Chowdhury, counsel appearing for the plaintiffs submit that the plaint specifically accredits the plaintiff no. 2 as the editor of the two books on Obstetrics and Gynaecology and that the plaintiff no. 2 has made valuable contributions to both the textbooks. The plaintiff no. 2, together with the first plaintiff, issued the letter of termination on the defendants on 9th October 2013 and that the instant suit has been filed for recovery of the outstanding royalties and other amounts payable to both the plaintiffs. Counsel relies on the case made in the written statements where it has been stated that the plaintiff no. 2 demanded money from the defendants and that the defendants tried to accommodate the wishes of the plaintiff. It is contended that defendants have admitted in the written statement that royalties have been paid to and accounts thereof furnished to both the plaintiffs. Paragraphs 7 and 15 of the written statement have been shown in this connection. Several facts have also been placed, which according to the plaintiff, have been deliberately suppressed by the defendants. These are:

i) That the plaintiff no. 2 was arrayed as a party (defendant no. 2) in the title suit which the defendants filed in the City Civil Court challenging the termination dated 9th October 2013.

ii) That the title suit filed by the defendants was dismissed on contest and all issues were decided against the defendants.

iii) That in an application filed by the defendants, the specific case of the defendants was that "Plaintiffs had ample scope to file a counter claim ......." It had also been stated in the application that the subject matter of the title suit and instant suit are the same. The application was dismissed by an order dated 7th February 2017 passed by this court.

8. Counsel contends that the instant application for deleting the name of the second plaintiff has been taken out by the defendants after filing of the written statement only to delay the trial. According to counsel, reliefs in the suit have been claimed on behalf of both the plaintiffs. Further, that copyright is a bundle of rights and an editor of a book has a separate copyright in the book. Counsel relies on Eastern India Motion Pictures and others vs. Performing Right Society Ltd. reported in AIR 1978 CAL 477 and Eastern Book Company and others vs. D.B. Modak and another reported in 2008 (1) SCC 1 for the aforesaid proposition. It is submitted that the decisions relied on by Mr. Dhruba Ghosh do not apply to the instant case as the said decisions are to do with The Specific Relief Act, 1963. According to counsel, the position is different under the Copyright Act, 1957 where an editor of a book has a separate copyright in the concerned book. It is submitted that the instant application should be dismissed and the suit should proceed for trial.

9. I have considered the submissions made by counsel appearing for the parties. This is an unusual case where the defendants seek deletion of a plaintiff from the array of parties to the suit. Without taking into account any of the factual or legal contentions put forth by counsel for the applicants/defendants, one wonders why the defendants would take pains to persuade the Court that the second plaintiff is a superfluous addition to the plaint instead of expediting the trial for establishing that the plaintiffs indeed have no cause of action against the defendants for the reliefs have been claimed. The obvious question which would follow is what prejudice can the defendants suffer if the second plaintiff, however irrelevant to the cause (allegedly), were to remain as a party to the suit? Second, whether the perceived prejudice would involve a liability on the defendants to make good any loss (allegedly caused to the plaintiffs) twice over? The last question was put to rest at the outset when it was clarified that the plaintiffs are together for the purposes of putting the defendants to task and that there is no scope for multiplication of the spoils, in the event the plaintiffs were to succeed in the suit.

10. Fortunately, in an application of the present nature, the plaint is the best and the only document which can convince a Court to decide whether a party is necessary or proper and whether that party is in dispensable for deciding the issues raised in the suit. Before testing the application in the backdrop of Order 1, Rule 10(2) of The Code of Civil Procedure, 1908, (CPC), the relevant provision is set out:-

10 (2) ........ "Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added".

11. There are several references to the plaintiff no. 2 in the plaint. Of these, only the relevant statements should be pointed out by relevant, one would look at instances where the presence of the second plaintiff would assist the Court in finding effective answers to the questions which the plaintiffs seek to raise in the suit. Paragraph 5 of the plaint is most specific:

"Paragraph 5- The plaintiff No. 2 is also a well-known Doctor and a professor with the Department of Obstetrics and Gynaecology, Calcutta National Medical College and Hospital, Calcutta. He was also the Chairman of Indian College of Obstetricians and Gynaecologists. At the request of Dr. Durlav Chandra Dutta, since deceased, the plaintiff No. 2 edited both the said Textbooks and made valuable contributions to several editions of the said Textbooks since the year 1985 and the year 1992. However, the copyright in the said Textbooks continued to remain with the Late Dr. Durlav Chandra Dutta."

Besides the above paragraph, the other references in the plaint are to "plaintiffs" in a collective, plural sense, but crucial for establishing the plaintiffs' right to relief against the defendants for their alleged wrongful acts as pleaded, These are;

Paragraph 12 - .... " The defendants assured the plaintiffs that they would ensure payment of Rs. 1 Crore by August, 2013 and the balance amount by March, 2014. The same would appear from and/or evidenced in writing and is inter alia recorded in the defendant No. 1 letter dated 06th November, 2013".

Paragraph 15 - "Having no alternative and in view of the serious loss and damage caused to the plaintiffs and the reputation of the said textbooks on account of wrongful acts of the defendants ..... the plaintiffs were ultimately compelled to terminate the non-exclusive license in relation to the said textbooks by a letter dated 9th October, 2013".

Paragraph 16 - " The plaintiffs thereby also demanded return of the Manuscript of a revised reprint of 'Textbook of Gynaecology'. By the said letter the defendants were permitted to exhaust pending stocks within one month's time and to make immediate payment of the pending royalties".

Paragraph 18 - "The plaintiffs had in the meantime entered into an agreement with one Jaypee Brothers Medical Publishers for publishing the aforesaid textbooks pursuant to which it has been published by the same".

Paragraph 19 - "In suppression of the aforesaid, the defendants purported to institute Title Suit No. 1615 of 2013 (New Central Book Agency Pvt. Ltd. & Anr. vs. Mt. Madhushree Konar & Ors.) for declaration and injunction challenging the termination of the said agreement and to prevent publication and distribution of the same through Jaypee Brothers medical Publishers (P) Limited who had already put the said textbooks in the market".

Paragraph 22 - "The plaintiffs are entitled to and claim the outstanding royalty aggregating to Rs. 90, 01,828/-".

Paragraph 23 - "The plaintiffs are also entitled to and claim a decree for the royalty payable for the subsequent period upon the royalty statement being furnished by the defendants".

Paragraph 24 - "The plaintiffs bona fide believe that the defendants have sold over 38,789 and 99,741 copies of the 'Textbooks of Gynaecology and textbooks of Obstetrics respectively during the period 1st April, 2012 to 9th October, 2013. The plaintiff's bona fide believe that the defendants are surreptitiously seeking to sell further copies of the aforesaid textbooks without authority".

Paragraph 28 - " The plaintiffs bona fide estimate that the defendants have wrongfully sold over 5,000 copies of the said textbooks outside India at an average price of Rs. 1,080/-. The defendants have thereby made wrongful profits. Such sales were not disclosed by the defendants to the plaintiffs and the defendants have failed to account therefor and the plaintiffs have thereby suffered loss and damage and are entitled to be compensated therefor".

12. It has been argued that none of the above statements made in the plaint can make the plaintiff no. 2 either a necessary or a proper party for effective answers to the questions raised and further that there are several admissions in the plaint in relation to the first plaintiff having the sole entitlement to proceeds from the textbooks after the death of her father. This argument has to be tested against the relief claimed in the suit which is essentially for recovery of the royalties pertaining to the textbooks authored by Dr. Dutta in relation to which the plaintiffs claim recovery. The plaintiffs have also claimed compensation on account of the books sold by the defendants outside India and for which agreed amounts have not been paid to the plaintiffs. The fact that the second plaintiff would be interested in the outcome of the proceedings and is crucially linked to the cause of action made out in the plaint would be evident from the consistent use of "plaintiffs". The extent would be the prejudice suffered by the alleged withholding of the royalty amounts or a right to recover those amounts. Although the plaint categorically states that the plaintiff no. 1 became the sole owner of the copyright in the concerned textbooks, there is no bifurcation of interest of the plaintiffs thereafter in that the copyright belonged only to the first plaintiff and that the second plaintiff was merely a hanger-on/sharer of the proceeds.

13. In fact, the plaintiff no. 2 as the editor of the textbooks since 1985 is a kind of bolster to the first plaintiff. The documents which have been used as stepping stones for creating the cause of action and culminating in the claim (against the defendants) have all either been written by both the plaintiffs or addressed to them. These include the letter of termination of the non-exclusive licence agreement entered into between Dr. Durlav Chandra Dutta and Jogendra Nath Sen on 7th November 1981 which admittedly compelled the defendants to filing the suit in the City Civil Court. The second plaintiff is a signatory to this letter. The reply to the termination sent by the defendants on 6th November 2013 has been addressed to both the plaintiffs. Third, paragraph 18 of the plaint states that both the plaintiffs entered into an agreement with one Jaypee Brothers Medical Publishers for publishing the textbooks. Evidently this was the second trigger which caused the defendants to file the title suit where the second plaintiff was made the second defendant. This shows that the defendants thought it necessary to implead the second plaintiff in the title suit not only for challenging the letter of termination but also to prevent publication and distribution of the textbooks through Jaypee Brothers. The second part of the relief claimed in the title suit indicates that the defendant's case is not only cantered on the copyright allegedly remaining with the plaintiff no. 1 but all ancillary rights emanating from the textbooks, including the right to enjoy the proceeds from the sale and distribution thereof.

14. The question whether the plaintiff no. 2 is a stakeholder in the publishing and printing rights to the said books, must be seen against the twin conditions envisaged under Order 1, Rule 10(2) where the necessity of a party to a proceeding is assessed on whether the Court can effectively adjudicate upon all the questions involved in the suit. If a party cannot rise up to these requirements, his name may be struck out on an application or such terms as the Court may find appropriate. The argument of counsel appearing for the plaintiffs that the plaintiff no. 2 has a separate copyright in the textbooks by virtue of being the editor may not be the only factor in deciding whether the plaintiff no. 2 is indispensable for the suit. The decision cited in support of the proposition; Eastern Book Company was a case where the Supreme Court considered whether literary works produced form pre-existing material in the public domain could qualify for copyright protection. The Supreme Court found that the publisher and editor "Supreme Court Cases" (SCC) had employed careful consideration in structuring the judgments involving a certain amount of creativity which entitled Eastern Book Company to restrain others from using specific portions of their reports. This decision does not assist the plaintiffs since a presumption would arise in the facts of this case that the plaintiff no. 2 employed a comparable degree of creativity in editing the textbooks of Dr. Dur lav Chandra Dutta or at least an enquiry into the degree of skill resulting in a separate copyright in favour of the second plaintiff in relation to the textbooks. A more illuminating passage reflecting the tests for determination is to be found in "Corpus Juris Secundum" Vol-XXX quoted in one of the decisions cited.

"Necessary or indispensable parties are those without whom the Court will not proceed to any decree, even as to the parties before it. This class includes all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Accordingly, persons whose interests will necessarily be affected by any decree that can be rendered are necessary and indispensable parties, and the Court will not proceed to a decree without them, while parties whose interests will not be affected by the decree sought, although they may have an interest in the subject matter, are not ordinarily necessary parties".

15. From the above dictum, it is clear that the plaintiff no. 2 (as the editor of the concerned textbooks) cannot fall in the second category of persons who may have an interest in the subject matter but whose interest will not be affected by the decree. It cannot be said that the plaintiff no. 2 is a party in whose absence the Court can proceed to a decree, or that the plaintiff no. 2 would be untouched by the grant or refusal of the reliefs claimed in the suit. The plaintiff no. 2 has acted in unison with the first plaintiff from th

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e inception of the dispute as stated in the plaint and more significantly, the defendants themselves have treated the plaintiff to be a single unit for the purpose of contesting the agreement which the plaintiffs executed with the other publisher. 16. Apart from other matters, the sixth edition of Dr. Dur lav Chandra Dutta's Textbook on Gynaecology (handed over in the course of submissions) features the name of the second plaintiff prominently on the cover and also proclaims that the book has been edited by the second plaintiff. 17. Although several arguments have been made in relation to the alleged admissions made by the defendants in the written statement, those need not be looked at except that the defendants continued to treat the second plaintiff as an interested party in terms of furnishing of accounts, payment of royalties and gave sufficient importance to the plaintiff no. 2 (even if an irritant). The argument that the plaintiff no. 2 has nothing to do with the agreement dated 7th November 1981 for publishing the textbooks does not keep the defendants since the plaintiff no. 1 is also not a signatory to the said agreement. The decisions cited by Mr. Dhruba Ghosh are in relation to specific performance of a contract or a right to a suit property where non-parties to the contract in question were held to be strangers to the proceedings to enforce the execution of the contract. The consideration in such cases would necessarily arise under section 19 of the Specific Relief Act, 1963 which is concerned with parties who may be sued for specific performance of a contract and is not the case here. 18. By reason of the above, there cannot be any doubt that the presence of the plaintiff no. 2 is required for a complete decision on the issues raised by the parties. The second plaintiff is not only vitally interested in the proceedings but would also be irrevocably affected by its outcome. This Court does not find any compelling factual or legal basis for striking out the plaintiff no. 2 at this stage at the instance of the defendants, without giving the second plaintiff an opportunity to justify his presence at the time of trial. 19. The application fails and is dismissed. There shall be no order as to costs. Since the defendants have already filed their written statement, the suit will be expedited and heard within four weeks from date. 20. Urgent Photostat certified copy of this Judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.
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