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



Super Cassettes Industries Pvt. Ltd v/s Prime Cable Network & Another


Company & Directors' Information:- CABLE CORPORATION OF INDIA LIMITED [Active] CIN = U31300MH1957PLC010964

Company & Directors' Information:- NETWORK LIMITED [Active] CIN = L32209DL1989PLC034797

Company & Directors' Information:- A L M INDUSTRIES LIMITED [Active] CIN = U19111DL1996PLC129067

Company & Directors' Information:- A L M INDUSTRIES LIMITED [Active] CIN = U74110DL1996PLC129067

Company & Directors' Information:- S R K INDUSTRIES LIMITED [Active] CIN = L17121MH1991PLC257750

Company & Directors' Information:- N K INDUSTRIES LIMITED [Active] CIN = L91110GJ1987PLC009905

Company & Directors' Information:- NETWORK INDUSTRIES LIMITED [Active] CIN = U17111WB1989PLC046577

Company & Directors' Information:- SUPER CASSETTES INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1983PTC016114

Company & Directors' Information:- R P INDUSTRIES PRIVATE LIMITED [Active] CIN = U27100GJ2011PTC075812

Company & Directors' Information:- PRIME INDUSTRIES LIMITED [Active] CIN = L15490PB1992PLC012662

Company & Directors' Information:- A G INDUSTRIES PVT LTD [Active] CIN = U27300HR1991PTC031378

Company & Directors' Information:- S K INDUSTRIES PVT LTD [Active] CIN = U74899DL1991PTC045572

Company & Directors' Information:- C N C NETWORK PRIVATE LIMITED [Active] CIN = U92113DL1998PTC094378

Company & Directors' Information:- Z H INDUSTRIES PRIVATE LIMITED [Active] CIN = U45200DL2014PTC265453

Company & Directors' Information:- S A NETWORK PRIVATE LIMITED [Active] CIN = U51420MH2001PTC133207

Company & Directors' Information:- V V NETWORK PRIVATE LIMITED [Under Process of Striking Off] CIN = U64200TN2011PTC082529

Company & Directors' Information:- S L INDUSTRIES P. LTD. [Active] CIN = U15331WB1989PTC047543

Company & Directors' Information:- AMP INDUSTRIES LIMITED [Active] CIN = L51909AS1985PLC002332

Company & Directors' Information:- N R C INDUSTRIES LIMITED [Active] CIN = U51909PB1985PLC006558

Company & Directors' Information:- A R INDUSTRIES PVT LTD [Active] CIN = U27101HR1995PTC032569

Company & Directors' Information:- P K INDUSTRIES PRIVATE LIMITED [Active] CIN = U51900DL2012PTC241654

Company & Directors' Information:- M D INDUSTRIES PRIVATE LIMITED [Active] CIN = U91110GJ1994PTC022025

Company & Directors' Information:- G. A. INDUSTRIES PRIVATE LIMITED [Active] CIN = U15435MH2005PTC151817

Company & Directors' Information:- S S F INDUSTRIES LIMITED [Active] CIN = U25190BR1988PLC003160

Company & Directors' Information:- N C CABLE INDUSTRIES PRIVATE LIMITED [Amalgamated] CIN = U74899DL1988PTC032520

Company & Directors' Information:- R & M INDUSTRIES PRIVATE LIMITED [Active] CIN = U24297TN1972PTC006185

Company & Directors' Information:- V J INDUSTRIES PRIVATE LIMITED [Active] CIN = U29253KA2009PTC050226

Company & Directors' Information:- R I L INDUSTRIES PRIVATE LIMITED [Active] CIN = U70101DL1993PTC052678

Company & Directors' Information:- H M B INDUSTRIES PVT LTD [Active] CIN = U24297GJ1996PTC070418

Company & Directors' Information:- K B R INDUSTRIES PRIVATE LIMITED [Active] CIN = U27107DL1996PTC079915

Company & Directors' Information:- K K S K INDUSTRIES PRIVATE LIMITED [Active] CIN = U19201TZ1997PTC007687

Company & Directors' Information:- INDIA CASSETTES PVT LTD [Under Liquidation] CIN = U32303KL1992PTC006845

Company & Directors' Information:- PRIME CABLE INDUSTRIES PRIVATE LIMITED [Active] CIN = U31905DL2008PTC177989

Company & Directors' Information:- W W I INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U29300MH1997PTC112589

Company & Directors' Information:- SUPER INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74999MH1959PTC011462

Company & Directors' Information:- S R P INDUSTRIES LIMITED [Amalgamated] CIN = U00061BR1984PLC002023

Company & Directors' Information:- C P INDUSTRIES PVT LTD [Strike Off] CIN = U29303MP1949PTC000846

Company & Directors' Information:- U. P. CABLE COMPANY PRIVATE LIMITED [Strike Off] CIN = U31300DL1974PTC007318

Company & Directors' Information:- G S C INDUSTRIES PRIVATE LTD [Active] CIN = U92114DL1956PTC002616

Company & Directors' Information:- G G INDUSTRIES PRIVATE LIMITED [Active] CIN = U27320UP1969PTC003282

Company & Directors' Information:- A. M. CABLE PRIVATE LIMITED [Active] CIN = U31908DL2010PTC201788

Company & Directors' Information:- M S V INDUSTRIES PRIVATE LIMITED [Active] CIN = U29309TN2020PTC138957

Company & Directors' Information:- M C NETWORK PRIVATE LIMITED [Strike Off] CIN = U74900DL1998PTC094287

Company & Directors' Information:- G K S INDUSTRIES PVT LTD [Strike Off] CIN = U24119OR1982PTC001128

Company & Directors' Information:- SUPER CORPORATION LIMITED [Active] CIN = U19112UP2013PLC061542

Company & Directors' Information:- S. S. V. CABLE PRIVATE LIMITED [Active] CIN = U64204MH1999PTC119288

Company & Directors' Information:- S V G NETWORK PRIVATE LIMITED [Active] CIN = U32203DL1998PTC093917

Company & Directors' Information:- PRIME CABLE NETWORK PRIVATE LIMITED [Strike Off] CIN = U92132DL1992PTC048659

Company & Directors' Information:- S B T (INDIA) NETWORK PRIVATE LIMITED [Strike Off] CIN = U72200TG2000PTC034445

Company & Directors' Information:- T C G INDUSTRIES PRIVATE LIMITED [Converted to LLP] CIN = U13200MH1958PTC011079

Company & Directors' Information:- N R NETWORK (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74999DL2001PTC112418

Company & Directors' Information:- S K INDUSTRIES LIMITED [Under Process of Striking Off] CIN = U29248PN1948PLC001948

Company & Directors' Information:- PRIME (INDIA) PVT LTD [Strike Off] CIN = U28112OR1984PTC001383

Company & Directors' Information:- A K INDUSTRIES PVT LTD [Active] CIN = U51109WB1944PTC011764

Company & Directors' Information:- S S NETWORK PRIVATE LIMITED [Strike Off] CIN = U72200DL1999PTC102107

Company & Directors' Information:- S M B NETWORK PRIVATE LIMITED [Strike Off] CIN = U72200TZ2011PTC017481

Company & Directors' Information:- G G S CABLE NETWORK PRIVATE LIMITED [Strike Off] CIN = U92100PB2011PTC035388

Company & Directors' Information:- V J NETWORK PRIVATE LIMITED [Active] CIN = U52392TN2008PTC066742

Company & Directors' Information:- R. A. M INDUSTRIES PRIVATE LIMITED [Active] CIN = U17120MH2014PTC254820

Company & Directors' Information:- M. H. CABLE NETWORK PRIVATE LIMITED [Strike Off] CIN = U74999MH2016PTC288041

Company & Directors' Information:- C H K NETWORK PRIVATE LIMITED [Strike Off] CIN = U74120UR2011PTC033438

Company & Directors' Information:- R A R INDUSTRIES PRIVATE LIMITED [Active] CIN = U74900TG2016PTC103684

Company & Directors' Information:- C K CABLE NETWORK PRIVATE LIMITED [Active] CIN = U64203TG2013PTC087887

Company & Directors' Information:- R S G M NETWORK PRIVATE LIMITED [Strike Off] CIN = U74900WB2013PTC198901

Company & Directors' Information:- A T NETWORK PRIVATE LIMITED [Strike Off] CIN = U51909CH2001PTC024541

Company & Directors' Information:- R D M INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U31100DL2013PTC252294

Company & Directors' Information:- D P R NETWORK PRIVATE LIMITED [Strike Off] CIN = U72900DL2004PTC126258

Company & Directors' Information:- M B CASSETTES PRIVATE LIMITED [Strike Off] CIN = U32303DL2010PTC210031

Company & Directors' Information:- S AND V NETWORK PRIVATE LIMITED [Strike Off] CIN = U32201MP2007PTC019567

Company & Directors' Information:- V. A. R. INDUSTRIES PRIVATE LIMITED [Active] CIN = U18209DL2020PTC369202

Company & Directors' Information:- N G P NETWORK PRIVATE LIMITED [Active] CIN = U74999MH2020PTC346257

Company & Directors' Information:- I N C INDUSTRIES PRIVATE LIMITED [Active] CIN = U74999MH2020PTC350470

Company & Directors' Information:- H R NETWORK PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909DL2002PTC114862

Company & Directors' Information:- H V K NETWORK PRIVATE LIMITED [Strike Off] CIN = U74140DL1996PTC079365

Company & Directors' Information:- B P K INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U99999MH1960PTC011841

Company & Directors' Information:- INDUSTRIES INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U60200BR1946PTC000035

Company & Directors' Information:- B M K INDUSTRIES PVT LTD [Active] CIN = U99999MH1948PTC006393

    CS(COMM). No. 594 of 2016

    Decided On, 28 February 2020

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE PRATEEK JALAN

    For the Plaintiff: K.K. Khetan, Advocate. For the Defendants: None.



Judgment Text


(Oral)

1. The plaintiff herein, Super Cassettes Industries Private Limited, is inter alia in the business of production and marketing of music cassettes, compact discs ["CD"], etc., as also film production and distribution. It claims to be the owner of a large number of copyrights in music and literary works, films and sound recordings, including approximately 20,000 Hindi film songs and non-film songs, and around 50,000 songs in regional languages.

2. The business of the plaintiff is carried on inter alia through licenses to various organizations such as FM Radio Stations, Television Broadcasters, Multi-System Operators ["MSO"] and/or Cable Television Operators etc., for the use of its copyrighted works.

3. In this suit, the plaintiff alleges infringement of its copyright by the defendants, Prime Cable Network ["PCN"]. One Ajay Malik was originally named as the proprietor of PCN and arrayed as defendant no. 2. By an order dated 17.05.2016 passed by the Joint Registrar, Ajay Malik was deleted from the array of parties and one Sanjay Agarwal was subsequently impleaded as defendant no. 2.

4. The case made out in the plaint is that PCN carries on business as an MSO under the logo "Prime Time" and "Prime Digital". It is stated to be a large provider of ground cable network services in the State of Uttarakhand. The plaintiff's case is that PCN broadcasts and/or communicates the plaintiff's copyrighted sound recordings, the underlying lyrics, musical composition and the audio - visual works, to the public through its cable network. The plaintiff has specifically averred that PCN has not taken a license from it for this purpose, despite the plaintiff having alerted PCN to its licensing scheme. The plaintiff claims to have addressed a legal notice dated 21.07.2014, requesting PCN to obtain a license from the plaintiff, but to no avail.

5. An affidavit of an investigator, Mr.Arun Kumar was included with the plaint which, according to the plaintiff, shows significant use of the plaintiff's copyrighted material by PCN. The plaintiff has also placed on record a CD of PCN's broadcast, which confirms this position.

6. In these circumstances, the plaintiff claims infringement of its exclusive rights under various provisions of the Copyright Act, 1957 [hereinafter, "the Act"], and seeks an injunction as well as damages against the defendants. According to the plaintiff, the plaintiff has suffered losses of not just the amount of license fee, but also an erosion in the value and ability to exploit its investments. The plaint does not reveal the exact number of subscribers of PCN, but does state that it has "thousands of connections".

7. The plaintiff has instituted the present suit for the following reliefs:-

"37. The Plaintiff prays that this Hon'ble Court may be pleased to grant the following reliefs:

(i) An order of permanent injunction restraining the Defendants, their officers, servants, agents and representatives and all others acting for and on their behalf from either engaging in themselves or from authorizing, the recording, distributing, broadcasting, public performance / communication to the public or in any other way exploiting the cinematograph films, sound recordings and /or literary works (lyrics) and Musical works (musical composition) or other work or part thereof, that is owned by the Plaintiff including all works whereon the Plaintiff has shown its copyright under section 52A of the Copyright Act or doing any other act that would lead to infringement of the Plaintiffs copyright;

(ii) An order for rendition of accounts of profits directly or indirectly earned by the Defendants from their infringing activities and unlawful conduct, and a decree for the amount so found due to be passed in favour of the Plaintiff;

(iii) An order of delivery up to the Plaintiff or its authorized representative by the Defendants of all infringing tapes, copies and negatives, etc bearing the copyrighted materials of the Plaintiff;

(iv) An order requiring the Defendants to pay to the Plaintiff damages to the tune of Rs. 25,00,000/- towards past damages and further grant future damages along with pendente lite and future interest at the rate of 18% p.a. till the time the decretal amount is paid;

(v) An order awarding the costs of the present suit to the Plaintiff;

And

Any further orders as this Hon'ble Court deems fit and proper in the facts and circumstances of this case."

8. The suit was first listed on 13.10.2014, when summons were issued and an ex parte ad interim order was granted in favour of the plaintiff in the following terms:-

"11. Accordingly, the defendants, its officers, servants, agents and representatives are restrained from communicating the recordings to the public, distributing, broadcasting, public performance/communication to the public or in any other way exploiting the cinematograph films, sound recordings and/or literary works (lyrics) and musical works (musical composition) or other works or parts thereof that are owned by the plaintiff including all works whereon the plaintiff has shown its copyright under Section 52A of the Copyright Act or from doing any other act that would lead to infringement of the plaintiffs copyright, through its Ground Cable Network."

The ex parte ad interim order granted in favour of the plaintiff on 13.10.2014, was made absolute on 18.12.2019.

9. The orders of the Joint Registrar dated 21.01.2015 and 06.03.2017 record service of summons on PCN. Service on defendant no. 2 [impleaded by order dated 09.09.2016], by way of publication, was permitted by the Joint Registrar on 04.09.2017. However, despite service, the defendants did not enter appearance and the right to file a written statement on behalf of PCN and on behalf of defendant no. 2 was closed [vide orders of the Joint Registrar dated 22.08.2017 and 28.11.2017 respectively]. No appearance on behalf of the defendants having been entered, the plaintiff was directed to lead its evidence by order dated 12.03.2018.

10. The plaintiff led the evidence of two witnesses, Mr. S.K. Dutta [PW-1] and Mr. Sunil Puri [PW-2]. They filed affidavits of evidence dated 18.04.2018 [Ex. PW1/A] and 01.08.2018 [PW2/X], respectively. The witnesses were produced for recording of their evidence on 25.04.2019 and 06.12.2019, respectively. The documents mentioned in their affidavits of evidence were tendered as Ex. PW 1/1 to PW 1/11 and PW 2/1 to PW 2/2.

11. As far as the jurisdiction of this Court is concerned, the plaintiff has invoked the provisions of Section 62(2) of the Act. As required by the judgments of the Supreme Court in Indian Performing Rights Society Ltd. v. Sanjay Dalia & Anr. (2015) 10 SCC 161 and of this Court in Ultra Homes Construction Pvt. Ltd. v. Purrushottam Kumar Chaubey & Ors. 2016 SCC OnLine Del 376 [FAO(OS) 494/2015, decided on 20.01.2016], Mr. K. K. Khetan, learned counsel for the plaintiff, confirms that the plaintiff does not have an office within the jurisdiction where PCN is located, or within the jurisdiction where it serves its customers. I am therefore satisfied that this Court has jurisdiction to entertain this suit.

12. Mr. K.K. Khetan, learned counsel for the plaintiff, submits that the evidence placed on record has established the case made out in the plaint. However, he limits the quantum of damages sought by the plaintiff to Rs. 8.1 lakhs, on the basis of paragraph 47 of the affidavit of evidence on behalf of PW-1. Mr. Khetan draws my attention to several orders and judgments passed by this Court, whereby the plaintiff has been granted injunctive relief as well as damages, in similar facts and circumstances. These include the judgment dated 07.02.2018 in CS (Comm) 273/2018 [Super Cassettes Industries Pvt. Ltd. v. Home Cable Network Pvt. Ltd.], judgment dated 02.04.2018 in CS (Comm) 1161/2016 [Super Cassettes Industries Pvt. Ltd. v. Good Media News Pvt. Ltd.] and judgment dated 06.08.2018 in CS (Comm) 14/2015 [Super Cassettes Industries Pvt. Ltd. v. Sky Vision Digital Cable Network].

13. In view of the unrebutted evidence led by the plaintiff, I am of the view that the plaintiff is entitled to the relief sought.

14. In the course of evidence, PW-1 proved the copyright certificates in favour of the plaintiff for the songs "Munni Badnam Hui" and "Mit Jaye Gham"[Ex. PW 1/8 and Ex. PW 1/9, respectively] and the assignment deed of the film "Dabangg" [Ex. PW 1/10]. The legal notice dated date 21.07.2014 was also proved as PW 1/11. With regard to the quantification of damages, the affidavit of evidence of PW-1 states as follows:-

"44. I am advised to say that the Plaintiff is entitled to the following:

(a) Compensatory Damages;

(b) Exemplary damages;

(c) Conversion damages;

(d) Costs of the Proceedings.

45. I am further advised to say that as regard the grant of compensatory damages to the Plaintiff, the following variables are necessary, namely:-

(a) The period over which the infringing activity was being performed by the Defendant;

(b) The rate of the Plaintiff for cable operator license on monthly basis per connection;

(c) The number of connections that the Defendant has;

(d)The notion that for every subscriber that the Defendant has, the Plaintiff has lost the account and hence suffered a damage.

46. I say that, it is know that the Defendant in the present suit has 15,000 subscriptions as on date as per the information and knowledge collected by the investigator after surveying the area.

47. I say that the subscription rate of the Plaintiff per account is charged at INR 18 per month. Therefore, I further state that the losses for the approximate period of Three (03) months. In order to avoid any controversy the plaintiff is taking the number of connections for the purposes of damages as 15,000 subscriptions:

15,000 (Subscriptions) x 18 (Per month license fee) x 03 (No of months) = INR 8,10,000/- (Eight Lakhs Ten Thousand Only).

48. I am advised to say that section 58 of the Copyright Act, 1957, entitles the Plaintiff to conversion damages which would be the entire cost of the subscription. Therefore, 1 say that typically, the cost of a subscription channel would roughly be several hundred rupees, for example INR 700 per month for Tata Sky, INR 400 per month for Hathway Connections etc. Thus, 1 am advised to say that, if the conversion charges are to be granted by this Hon'ble Court, then the aforesaid figure would approximately rise to 500 x 15,000 = INR 75,00,000/- (Rupees Seventy Five Lakhs Only)."

15. PW-2 was the co-investigator who had accompanied Mr.Arun Kumar, the main investigator who made recordings of the infringing material. He gave evidence as to the CD/DVD recordings and details of the films/music broadcast by the defendants in violation of the plaintiff's copyright. The evidence in this regard was exhibited as Ex. PW 1/4 to Ex. PW 1/7, through the evidence of PW-1, which was reiterated by PW-2.

16. The

Please Login To View The Full Judgment!

exhibited documents include the CD/DVD recordings and the cue sheet thereof, as well as the screen-shots of the defendant's broadcast [Ex. PW 1/4 to Ex. 1/7]. The documents clearly establish the plaintiff's case of infringement by the defendants. The plaintiff's statement that the defendants have not obtained any license from the plaintiff is also unchallenged. It is therefore held that the defendants have infringed the plaintiff's rights under Sections 14(a)(iii), 14(a)(iv), 14(d)(iii) and 14(e)(iii) read with Section 51 of the Act. The plaintiff's evidence regarding quantification of damages to the extent of loss of license fee of Rs. 8.1 lakhs is also unrebutted. 17. A decree of permanent injunction is granted against the defendant and in favour of the plaintiff in terms of paragraph 37(i) of the plaint. The suit is also decreed in the sum of Rs. 8.1 lakhs in favour of the plaintiff and against the defendants. 18. The plaintiff is also entitled to actual costs in the suit including court fees and counsel fees. The plaintiff will file an affidavit in this regard within one week. 19. The decree sheet be prepared accordingly. 20. The suit and pending application(s) stand disposed of in these terms.
O R