(Prayer: O.A.No.849 of 2017 has been filed under Order XIV Rule 8 of O.S. Rules read with Order XXXIX Rule (1) and (2) of CPC to grant ad interim injunction restraining the 2nd respondent, their men and agents from exploiting the exclusive world satellite television broadcasting rights of the Tamil film 'BOGAN' starring Jayam Ravi, Arwindswamy, Hansika Motwani and others dubbed in Telugu, Malayalam and Kannada languages either on 05.09.2017 or any other date within one year from the date of first telecast of the said film in Tamil by the plaintiff in their channel as per clause 6 of the Assignment Agreement dated 29.7.2016.
O.A.No.139 of 2018 has been filed seeking to vacate the ad interim injunction granted on 04.09.2017 and extended from time to time till it was extended until further orders on 03.01.2018 in favour of 1st respondent / plaintiff.)
1. This common order will dispose of both these applications, i.e., O.A.Nos.849 of 2017 and 139 of 2018.
2. To be noted, O.A.No.849 of 2017 has been taken out by the plaintiff seeking an ad interim injunction pending disposal of the main suit and an ex parte interim order was granted (at the time of inception of the suit) on 04.09.2017. O.A.No.139 of 2018 has been taken out by the second defendant in the main suit with a prayer to vacate the aforesaid ex parte ad interim order of injunction dated 04.09.2017.
3. Further to be noted, the sole plaintiff in the main suit is the lone applicant in O.A.No.849 of 2017. Defendants 1 and 2 in the main suit are respondents 1 and 2 respectively in O.A.No.849 of 2017. O.A.No.139 of 2018 has been taken out by second defendant in the main suit arraying plaintiff in the main suit and first defendant in the main suit as respondent Nos.1 and 2 respectively. The parties in these two applications are referred to by their respective ranks in the main suit for the sake of convenience and clarity.
4. The nucleus of the suit and obviously these two applications is a Tamil feature film titled 'Bogan', starring Jayam Ravi, Arwindswamy, Hansika Motwani and others, which is hereinafter referred to as 'suit film' for the sake of brevity, convenience and clarity. There is no dispute between parties at lis that defendant No.1, i.e., Prabhudeva Studios Private Limited is the producer of the suit film.
5. Before proceeding further, it is deemed relevant to record the obtaining position that defendant No.1 has been duly served, but has not chosen to enter appearance and contest the suit or these applications. Ms.M.Sneha, learned counsel on record for plaintiff and Mr.T.Mohan, learned counsel appearing on behalf of Mr.M.Murali, counsel on record for the second defendant were before this Commercial Division and I have heard both learned counsel.
6. The case of the plaintiff is that they have got an assignment of exclusive satellite television broadcast rights from the first defendant (producer of the suit film) vide an assignment agreement dated 29.07.2016 for a valuable consideration. To be noted, the plaintiff, according to plaint averments, is a television network and runs several television channels. In other words, as is evident from the submissions made before me, plaintiff is a broadcaster. As already set out supra, the first defendant is the producer of the suit film. To be noted, the second defendant is also a broadcaster and it runs a Malayalam channel in the name and style 'Kairali TV'. The TV channels of the plaintiff, that are of relevance in the instant suit are Tamil TV Channel 'Sun TV' and Malayalam TV channel 'Surya TV'.
7. It is the case of the plaintiff that they having acquired the suit film for valuable consideration, had telecast the same on 15.08.2017 which is a national holiday on account of independence day with the intention of deriving maximum income from advertisements. To be noted, such telecast made by the plaintiff was in it's Tamil television channel, Sun TV. It is the case of the plaintiff that after such telecast, while they were in the process of telecasting promos for telecasting the suit film in their Malayalam channel (Surya TV) on 02.09.2017 in view of Onam festival, the second defendant telecast the Malayalam dubbed version of the suit film on 01.09.2017 in its Malayalam channel 'Kairali TV'.
8. Plaintiff filed the instant suit on 04.09.2017 complaining that they are aggrieved by such telecast of Malayalam dubbed version of the suit film by second defendant in their Malayalam channel 'Kairali TV' on 01.09.2017. The suit is predicated on the ground that the second defendant has made the aforesaid alleged offending telecast on 01.09.2017 without any rights whatsoever, violating plaintiff's copyright in the suit film. It is further averred by plaintiff that this has caused revenue loss to the plaintiff. In this suit, permanent injunction restraining the second defendant from exploiting television broadcasting rights in the suit film and damages for a sum of Rs.30,00,000/- have been claimed. To be noted, this is besides the prayer for costs of suit and a usual residuary prayer. In other words, it is of importance to note that there is no prayer against first defendant. Prayers for injunction and damages are only against second defendant. Further, to be noted, the suit has been laid on the premise that second defendant had no right whatsoever qua suit film.
9. On such pleadings of the plaintiff, an ex parte ad interim injunction restraining second defendant from exploiting satellite television broadcasting rights of the suit film was granted by the regular Original Side of this court on 04.09.2017. Thereafter, this suit was transferred to this Commercial Division, post notification in this regard. To be noted, the ex parte ad interim injunction was granted prima facie on the basis of the aforesaid assignment agreement dated 29.7.2016, whereby the first defendant had assigned satellite broadcasting rights of suit film to the plaintiff and on the basis of the covenant therein that the first defendant shall exploit the world satellite television broadcasting rights of suit film in Telugu, Malayalam and Kannada only after one year from the date of the first telecast of the suit film by plaintiff and that the first telecast of the suit film by plaintiff in its Tamil television channel was on 15.8.2017.
10. Thereafter, the second defendant entered appearance and filed the aforesaid vacate injunction application, i.e., O.A.No.139 of 2018. In the vacate injunction application, it is the specific case of the second defendant that they have acquired exclusive rights in the Malayalam dubbed version of the suit film from one Century International Films for valuable consideration. Century International Films has in turn got assignment of the aforesaid rights in the Malayalam dubbed version of suit film from a proprietary concern in the name and style 'Frames Inevitable' which in turn has obtained the entire exclusive rights to dub the suit film into Malayalam and all rights pertaining to Malayalam dubbed version of the suit film from the first defendant on 18.5.2016. In other words, it is the case of the second defendant that their rights qua Malayalam dubbed version of the suit film also flows from the first defendant (who is undisputedly the producer of the suit film) via the aforesaid Frames Inevitable and Century International Films. Most important aspect of the matter that is being contended by second defendant is that their title / rights in the Malayalam dubbed version of the suit film flows from the assignment deed dated 18.05.2016, which is prior to the plaintiff's aforesaid assignment deed dated 29.7.2016.
11. Predicating the vacate injunction application on the aforesaid basis, it was the sheet anchor submission of learned counsel for second defendant that the first defendant having assigned the entire exclusive rights to dub the suit film into Malayalam language and to telecast the Malayalam dubbed version through television satellite broadcasting in Malayalam channels throughout the world albeit after 150 days from the date of release of Tamil movie, i.e., suit film in theatres vide assignment deed dated 18.05.2016 to the predecessor in title of the second defendant could not have assigned any right whatsoever pertaining to rights to dub suit film into Malayalam or exploitation of world satellite television broadcasting rights of Malayalam dubbed version of the suit film to plaintiff on 29.7.2016. In this regard, it is to be noted that there is no dispute or disagreement between both learned counsel before me that the suit film in Tamil was released in theatres, i.e., theatrical release in industry parlance was on 02.02.2017. 150 days therefrom, which even if construed as 5 months expired on 02.07.2017.
12. It is the specific case of the second defendant that the aforesaid assignee of the first defendant who got assignment under assignment deed dated 18.5.2016 was at liberty to do all that it wanted with regard to dubbing of the suit film in Malayalam and exploitation of Malayalam dubbed version of the suit film post 02.07.2017.
13. In the interregnum, the first assignee, i.e., Frames Inevitable made further assignment to Century International Films which as mentioned supra made assignment to second defendant on 23.3.2017. Under such circumstances, broadcasting of Malayalam dubbed version of suit film on 01.09.2017 by second defendant in its Malayalam channel 'Kairali TV' is perfectly valid / legal as it is well and truly after 02.07.2017. In this regard, it needs to be emphasised that there is no disagreement between parties at lis that the suit film was released in theatres (in Tamil) on 02.02.2017 and therefore, there is no conflict or disagreement between parties at lis with regard to the cut off date of 02.07.2017.
14. What emerges very clearly from the aforesaid narrative is that plaintiff originally filed the suit on 04.09.2017 under an assumption that second defendant had no rights whatsoever. However, after second defendant entered appearance and filed written statement in the main suit as well as the instant vacate injunction application, it came to light that the first defendant has made an assignment on 18.5.2016 with regard to dubbing in Malayalam and exploitation of Malayalam dubbed version of the suit film, which is much prior to first defendant's assignment to plaintiff on 29.7.2016. In this regard, it is also to be noted that there is no dispute or disagreement whatsoever between parties at lis before me that the first defendant (as alluded to supra) is the producer of the suit film. However, even after coming to know from the written statement and from vacate injunction application that first defendant had made assignment vide assignment deed dated 18.5.2016 (from which title of the second defendant flows) much prior to the assignment in favour of the plaintiff on 29.7.2016, admittedly, no steps, have been taken until today by plaintiff to amend the suit prayer. To be noted, it has already been alluded to supra that the suit prayer both in respect of injunction and damages is against the second defendant only and it has also been alluded to supra that there is no prayer in the suit against the first defendant.
15. One more aspect in this regard with regard to which there is no dispute or disagreement between parties at lis before me is that there is no whisper about 18.5.2016 assignment agreement by first defendant in the assignment agreement dated 29.7.2016. In other words, it emerges clearly that the first defendant has suppressed the prior assignment agreement and entered into an assignment agreement with the plaintiff on 29.7.2016.
16. In this regard, referring to 18.5.2016 assignment agreement executed by the first defendant, learned counsel for plaintiff pointed out that the first defendant had assigned the liberty to telecast Malayalam dubbed version of suit film only after 150 days from the date of Tamil movie release in theatres. This has already been dealt with supra as there is no disagreement between parties at lis that the theatrical release of the suit film (Tamil) was on 02.02.2017 and therefore, cut off date is 02.07.2017 even if 150 days is construed as 5 months. To be noted, telecast by second defendant was only on 01.09.2017. Further, learned counsel for second defendant pointed out that vide this assignment agreement, first defendant has clearly assigned their entire rights to dub the suit film in Malayalam, as also the entire rights pertaining to distribution, exhibition and exploitation in respect of Malayalam dubbed version of the suit film. This is articulated in the covenant in the assignment agreement dated 18.5.2016, which reads as follows :
'WHEREAS after mutual consultations between the ASSIGNOR AND ASSIGNEE, the ASSIGNOR hereby agree to grant and assign ENTIRE RIGHTS to dub the said Tamil picture into Malayalam language only and the entire rights to distribution, exhibition and exploitation as recognised by the film trade association in respect of the exhibition and exploitation of the MALAYALAM Picture.'
17. Thereafter, the aforesaid assignee under 18.5.2016 agreement, i.e., Frames Inevitable, a proprietary concern in Cochin, further assigned their rights in favour of Century International Films, another proprietary concern in Chennai, vide assignment agreement dated 31.1.2017. Referring to this 31.1.2017 assignment agreement, learned counsel for plaintiff pointed out that there is a covenant therein, whereby Frames Inevitable has covenanted that it has to obtain no objection certificate from Sun TV to telecast the dubbed version of the movie after 150 days. Therefore, Frames Inevitable was aware of the assignment in favour of plaintiff. Obviously, Frames Inevitable was aware of the assignment in favour of Sun TV, but it is very clear that Frames Inevitable was also under the impression that Malayalam dubbing rights or exploitation of Malayalam dubbed version of the suit film was not assigned by first defendant to plaintiff, as otherwise the entire assignment agreement dated 31.1.2017 would not have been executed.
18. The reason is not far to seek. As of 31.1.2017, the suit film had not been released in theatres, i.e., in Tamil. Therefore, the covenant pertains to no objection certificate from Sun TV post 150 days. Obviously, it cannot be with regard to dubbing rights in Malayalam as the entire Malayalam dubbing rights and exploitation rights of Malayalam dubbed version have been assigned to it by first defendant on 18.5.2016 itself much prior to assignment in favour of Sun TV on 29.7.2016. As there is a reference to Kannada and Telugu dubbed version also in 29.7.2016 assignment agreement, the no objection certificate was obviously for complete consensus with another assignee about the date of release of the suit film in theatres in Tamil, so that there is no discrepancy with regard to 150 days after which Frames Inevitable will get right qua dubbing rights in Malayalam.
19. It was also pointed out by learned counsel for plaintiff that even the commercials in terms of finance transactions had not been completed only because of necessity to get no objection certificate from Sun TV but that is of no consequence, as there is assignment made by Frames Inevitable in favour of Century International Films. On the date of assignment, i.e., 31.1.2017, Frames Inevitable had got assignment of Malayalam dubbed / exploitation rights subject only to the aforesaid 150 days time frame. On 31.1.2017, as admitted by parties at lis before me, the 150 days had not started ticking. To be noted, admittedly, it started ticking only on 2.2.2017. Thereafter, after 150 days had started ticking on 2.2.2017, Century International Films on 23.3.2017 has assigned Malayalam dubbed / exploitation rights to second defendant. It was pointed out by learned counsel for plaintiff that clause 5.9 of this 23.3.2017 agreement says that second defendant shall have the right of telecast from the date of the agreement, but it is without contradicting any right that may have been assigned to any other person / entity with regard to suit film.
20. Learned counsel for second defendant submits that this does not present any difficulty or impediment for second defendant as obviously there are other rights other than Malayalam dubbing and exploiting rights that have been assigned by first defendant to plaintiff and therefore, this clause,. I find no difficulty in accepting this submission of learned counsel for second defendant.
21. Therefore, what follows very clearly from the narrative supra is that rights with regard to dubbing in Malayalam and exploitation of Malayalam dubbed version of suit film as well as other rights other than Malayalam version have both flown from first defendant who is undisputedly producer of suit film. While Malayalam version rights have flown from first defendant via two proprietary concerns, the first assignment being on 18.5.2016, the other rights have flown from first defendant to plaintiff in and by assignment agreement dated 29.7.2016.
22. Notwithstanding the aforesaid position, reference to Malayalam dubbing rights and exploitation rights in Malayalam version by first defendant in the 29.7.2016 agreement without disclosing or making a whisper about earlier 18.5.2016 agreement, under which Malayalam rights in its entirety have already been assigned is something for which the first defendant may have to take responsibility. However, the first defendant has not chosen to appear before this Court. Mere mentioning of Malayalam dubbing rights also (along with several other rights) by first defendant in its 29.7.2016 assignment in favour of plaintiff, cannot be a ground to deprive the second defendant of its rights qua Malayalam version of suit film as assignment of Malayalam dubbing and exploitation rights by first defendant was prior in point of time, i.e., 18.5.2016 (prior to 29.7.2016).
23. To be noticed, the entire prayer in the injunction application is restricted to exploitation of dubbed version of the suit film as per clause 6 of assignment agreement dated 29.7.2016. Under clause 6, the first defendant will be free to deal with all dubbing rights and other dubbed versions after one year from the date of first telecast of the suit film by plaintiff. As aforesaid, the first telecast of suit film by plaintiff was on 15.8.2017. Therefore, this injunction application is to the limited extent of restraining second defendant from telecasting the suit film upto 15.8.2018, i.e., for a period of about six months from today. In this regard, I put it to learned counsel for second defendant as to how many telecasts second defendant intends to make between now and 15.8.2018. It was fairly submitted by learned counsel for second defendant that it is likely to be 5 to 6 telecasts. Learned counsel also undertook to fie accounts giving all relevant particulars, particularly particulars of revenue generated through advertisements for each telecast of the Malayalam version of the suit film between today and 15.8.2018 within one week from the date of each telecast. It is submitted by learned counsel that such accounts will be filed in this court within one week from the date of each telecast with advance copy to plaintiff. This is recorded.
24. Equally, it is open to plaintiff to amend the plaint to seek remedy and reliefs against first defendant also.
25. In this regard, it is made clear that 5 to 6 telecasts by the second defendant between today and 15.8.2018 is only indicative and it is not a cap or restriction
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, but what is imperative is second defendant should file accounts as aforesaid giving all details of revenue generated through advertisements with regard to each telecast within one week from the date of telecast in this Court with advance copy to plaintiff. 26. As mentioned supra, I have left it open to the plaintiff to seek amendment of the prayer to seek remedies qua first defendant. Learned counsel for second defendant submits that if suitable amendment in prayer is sought, there cannot be serious objection subject to the contents of the affidavit and as long as the prayers are to seek relief against first defendant. 27. It is also open to the plaintiff to take out applications for impleading any other individual or entity who has become proper or necessary party in the aforesaid chain of assignment. 28 It is not in dispute before me that second defendant is an established broadcaster. Therefore, in my opinion, filing of accounts will suffice, as quantified damages can always be recovered by plaintiff if the plaintiff ultimately succeeds in the suit. Plaintiff is also at liberty to seek case management hearing under Order XV-A of Code of Civil Procedure, 1908 ('CPC' for brevity) as amended by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Act 4 of 2016) for expediting and accelerating disposal of the suit in which pleadings have been completed by second defendant, besides completion of admission and denial of documents also. 29. Though obvious, it is made clear that all the views expressed in this order are for the limited purpose of disposal of these two interlocutory applications and the main suit will be tried and decided uninfluenced by anything that may have been said in this order. 30. Owing to all that have been set out supra, the vacate injunction application i.e., O.A.No.139 of 2018 is allowed, interim injunction granted by this court on 04.09.2017 is vacated and interlocutory injunction application i.e., O.A.No.849 of 2017 is dismissed. In the light of the fact that the main suit is pending, there will be no order as to costs in these applications.