$",,26

*IN THE HIGH COURT OF DELHI AT NEW DELHI +
CS (OS) 1325/2012 SHEMAROO ENTERTAINMENT LTD ..... Plaintiff Through :Mr. Rajiv Nayar, Sr. Advocate with Mr. Rishi Agrawala, Ms. Megha Mehta Agrawal and Mr. Akshay Ringe, Adv. versus AMIT SHARMA & ORS Through: ..... Defendants Mr. Sudhir Chandra, Sr. Advocate with Mr. Kunal Tandon and Mr. Jaspreet . Singh Kapur, Advs. for defendant nos. 1 and 2 Mr. Neeraj K. Kaul, Sr. Advocate with Mr. Tarun Gulati, Mr. Neil Hildreth and Mr. Abeer Kumar, Adv. for defendant no. 3 Mr. Sandeep· Sethi, Sr. Advocate with Mr. Ajay Bhargava, Mr. Gaurav Bahl, Ms. Soumili Das and Mr. Ankur Sangal, Advs. for defendant no. 6

CORAM: HON'BLE MR. JUSTICE A.K. PATHAK ORDER 16.05.2012

%

I.A. No. 8837/2012 (u/O 39 R 1 & 2 r/w Sec. 151 CPC)
1. By this application plaintiff has prayed that the defendant

nos. 1 to 4 and 7 be restrained from using the catch words of the

CS (OS) 1325/2012

Page 1 of 18

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song "Thodi Si 10 Pee Li Hai" from the film "Namak Halal" in their film "Department"; film "Department" from releasing or distributing the upcoming without deleting the portion of the song "Thodi

Si 10 Pee Li Hai" and also from exploiting the audio rights of the film "Department" MP3, CDs etc. 2. Case of the plaintiff is that the film "Namak Halal" was containing the above portion, by way of DVDs,

produced and released by the defendant no. 5 in the month of April, 1982. Defendant no. 5 was the absolute owner of negatives and holder of the feature film "Namak Halal". Vide

copyright

Agreement dated 23rd November, 2000, defendant no. 5 assigned all such rights including broadcasting rights, video rights, performance rights, internet rights etc. in the feature film "N amak Halal" to one

Mis

Dimple

Video

Distributors.

Subsequently,

by

another

Agreement dated 21 st August, 2007 defendant no. 5 assigned all the right in the negatives as also copyright in the film "Namak Halal" and four other films to Mis Dimple Video Distributors, for a period of 99 years. Mr. Satyandra Pal, Proprietor of Mis Chaudhary

Enterprises (defendant no. 5) also executed a Declaration dated 29th September, Distributors (negatives
\

2007 thereby

confirming

that Mis

Dimple

Video

was the sole and absolute

owner of the pictures

and sound) as mentioned therein including the film
Page 2 of 18

CS (OS) 1325/2012

"Namak

Halal".

Mis Dimple Video Distributors

executed

an

Agreement dated 1ih September, 2007 in favour of the plaintiff in respect of all the five films including "Namak Halal" and pursuant thereto all the intellectual property rights including copyright in the film "Namak Halal", stood transferred to plaintiff. Thus, plaintiff

was copyright holder in respect of negatives and sound recordings of the film "Namak Halal". 3. On or about 20th April, 2012 plaintiff came to know that

defendant nos. 1 to 4 and 7 have adopted some portion of the song "Thodi Si Jo Pee Li Hai" in a song in their film "Department".
~.)

On letter

coming to know this fact plaintiff, through its advocates' dated 24th April, 2012, brought to the notice

of concerned

defendants

that the plaintiff was having copyright and negative

rights in the film "Namak Halal" and the same cannot be used by them in any manner whatsoever. Vide reply dated 4th May, 2012 defendant no. 3 stated that the defendant no. 2 had entered into a "Work License Agreement" dated 13th April, 2012 with defendant no. 6 whereby defendant no. 2 was permitted to synchronize 2

minutes and 30 seconds of the sound recording of the original song with the visuals of the said film in their upcoming film

"Department" . 4. It is the case of the plaintiff that defendant no. 6 had no right
Page 3 of 18

CS (OS) 1325/2012

to permit the defendant no. 2 to use the portion of the song "Thodi Si 10 Pee Li Hai". Agreement dated 29th September, 1983 executed between defendant no. 5 and defendant no. 6 pursuant, whereof defendant no. 6 had been claiming copyright over the original song "Thodi Si 10 Pee Li Hai", was only for a period of three years with effect from the 1ih November, 1981. On expiry of this period

defendant no. 6 was divested of any rights in the said song. In nutshell, it is contended that use of clipping of the aforesaid song by the defendant nos. 1 to 4 and 7 in their forthcoming film

"Department" tantamounts to infringement of copyright of plaintiff. 5.
i

Defendants

have opposed this application

without

filing

reply(s) and have placed reliance on the documents, which have been filed by the plaintiff as well as defendant no. 6. 6. From the documents placed on record it appears that the film

"Namak Halal" was produced by defendant no. 5 in the year 1982. Vide agreement dated 23rd November, 2000, defendant no. 5

assigned all the rights, which he was having in the film, in favour of

Mis Dimple Video Distributors. Vide Agreement dated 21 st August,
2007 defendant no. 1 assigned all the remaining rights in the film in favour of Mis Dimple Video Distributors. Vide letter dated 22nd August, 2007 defendant no. 5 informed the defendant no. 6 that he had sold all the negatives and copyrights in the film "Namak Halal"
CS (OS) 1325/2012
Page 4 of 18

and "Imandaar"

to Mis Dimple Video Distributors

and further

requested the defendant no. 5 to pay all the past and future royalty to Mis Dimple Video Distributors Agreement Distributors "Namak dated 1ih September, directly. 2007 Subsequently, vide Video

Mis

Dimple

sold all the intellectual property rights in the films Halal" , "Hera Pheri" , "Zulmi" , "Imandaar" and

"Lakshman Rekha" to the plaintiff. dated
4th

Thereafter, plaintiff vide letter·

March, 2009 informed the defendant no. 5 that it was

holding copyrights in the negatives (sound and picture) of 178 films and was entitled to recover royalty as predecessor-in-interest of the

said films had assigned all their rights in favour of the plaintiff. Film "Namak Halal" was one of such films. 7. Agreement dated 29th September, 1983 executed by the

defendant no. 5 in favour of defendant no. 6 has already been placed on record not only by the plaintiff but also by defendant no. 6. Thus, it is not in dispute that defendant no. 5 had indeed executed an agreement in favour of the defendant no. 6 on 29th September, 1983. The relevant clauses of this agreement read as under:"1. This Agreement shall be for an initial period of one year (s) commencing on the 1ih day of November, 1981 and shall continue for two successive periods of one year each on the same terms and conditions as are herein laid down unless the Company terminates the Agreement by giving notice
CS (OS) 1325/2012
Page 5 of 18

in writing to the Producer 60 days before the expiration of the initial or extended period. 2.. For the purposes of this Agreement the following words shall have the meanings set forth against them:
"WORK"

Shall mean anyone or more of a literary dramatic musical or artistic work as defined in the Copyright Act, 1957. Shall include a gramophone disc record magnetic tape record (whether reel, endless loop, in cassette or cartridge form or otherwise howsoever) or any other contrivance or appliance whatever bearing or used for emitting sounds whether or not the same also bears or can bear visual images or is or can be joined to be used in conjunction with or part of a contrivance or appliance bearing or used for giving visual images but shall exclude a cinematograph film as immediately hereafter defined. include soundtrack and any recording however made of a sequence of visual images which is capable of being used as a means of showing that sequence as a moving picture (whether or not joined to or part of a record as defined herein) provided that it shall only include such recordings as aforesaid as are used for presentation through cmema theatrical or television transmission or diffusion media or
Page 6 of 18

"RECORD"

"CINEMA TOGRAPH FILM" shall

,(5(05) 1325/2012

by any gauge of film derived from such recordings so presented and shall not include any such recordings as are used for presentation in any other manner whatsoever.
"PERFORMANCE"

shall include speech dialogue monologue recitation acting singing playing an instrument or instruments conducting or directing either alone or with another or others or any other sound and visual effects of any kind.

"PRODUCER'S FILMS"

shall mean all cinematograph films commenced and/or under production during the period of this Agreement and the extension(s) (if any) thereof, whether or not the production thereof may have been completed after the expiry of this Agreement, which contain performances of any work(s) in respect of which the Producer directly or indirectly: (i) is or shall be the producer or owner or (ii) otherwise owns or controls or shall own or control the right to make available license and assign the rights granted to the Company under this Agreement.

shall mean recordings of performances comprising the Producer's Films whether or not they are

"CONTRACT RECORDINGS"

CS (OS) 1325/2012

Page 7 of 18

incorporated in final Producer's Films.
"CONTRACT WORKS"

versions

of the

shall mean all works of a literary dramatic or musical nature performed in contract recordings. 3(A) The Producer hereby assigns and transfers and agrees to assign and transfer to the Company absolutely and beneficially for the world: (i) the copyright for making records of all contract works which are made available to the Company under the terms of this Agreement and the 'copyright, performing right and all other rights title and interest in and to the literary dramatic and musical works embodied in the Producer's Films including all rights of publication, sound and television broadcasting, public performance and mechanical reproduction of the said works. (ii) The sole and exclusive right to make or authorize the making of any record embodying the contract recordings, either alone or together with any other recordings. The Producer undertakes to execute or obtain the execution of such further assignments or assurances as may be required to safeguard the parties' rights. (B) It is herby declared that the rights assigned and transferred or agreed assigned and transferred in pursuance Agreement include but are not limited hereby to be of this to:

(i) the sole right of production reproduction sale (under such trademarks as the Company may select) use and public performance (including sound and television broadcasting) throughout the world by any

CS (OS) 1325/2012

Page 8 of 18

and every means whatsoever of records made in pursuance of this Agreement. (ii) the sole right to decide based on market demand whether and/or when to discontinue or recommence the said production and sale of records and to fix and alter the prices of such records and the irrevocable right and licence at all times to use and publish the names and photographs of artistes, musicians, lyric writers, music directors and other persons associated with and/or engaged in the Producer's Films in any manner whatsoever and the Producer's trademarks and logos for labeling cataloguing promoting and marketing the said records. (iii) the right to grant licences for publication, sound and television broadcasting public performance and mechanical reproduction of the contract works or any of them. (iv) the right to use and public performance (including sound and television broadcasting) throughout the world. by any and every means whatsoever of the contract works or any of them. And the Company shall have the irrevocable right to authorize any other person, firm or corporation to do any and all such acts and things. 9. The Producer:

(a) shall not directly or indirectly supply or make available to any individual firm company corporation or other person for the purposes of manufacturing and selling records the whole or any part of the soundtrack or recorded tape thereof or any
CS (OS) 1325/2012 I
Page 9 of 18

other materials made or to be made available to the Company under this Agreement. (b) shall not directly or indirectly provide the services of any of the said artistes and/or musicians to perform any of the works performances of which have been made available to the Company for the purpose of manufacturing and selling records hereunder on their own account or for any individual firm company corporation or other person other than the Company whereby such soundtrack( s) and performances are or are intended to be recorded in any form from which a record may be offered to the public provided that such soundtrack( s) and performances by the said artistes and musicians can be made available for sound or television broadcasting or cinematograph films in cases in which records thereof are not intended to be offered to the public except by or with prior written consent of the Company. (c) shall not do any act which derogates from the grants to the Company in this Agreement or exercise any rights granted to the Company in this Agreement. 11. The Producer agrees that all the rights and obligations under this Agreement shall construed to apply to works included or to be included in Producer's Films commenced and/or under production during the period of this Agreement." 8. Clause 12 of the aforesaid agreement relates to payment of '

royalty. 9. Learned senior counsel for the plaintiff has vehemently

contended that Clause 1 of the aforesaid agreement makes it clear

CS (OS) 1325/2012

Page 10 of 18

that the agreement was valid only for a period of three years with effect from 1ih November, 1981 and came to an end on or before 16th November, November, 1984. It is, thus, contended that after 18th

1984 defendant no. 6 has been divested of all such in the agreement in respect of the films

rights as mentioned

including "Namak Halal", produced by the defendant no. 5. Film . "Namak Halal" was produced in the year 1982 and defendant no. 6 was having rights to only make "records" that too till November, 1984 and not thereafter.
f

He has further contended

that the

defendant no. 6 was given rights only to make records and to market the same during the continuance of agreement, that is, till November, images. "Namak 1984. Defendant no. 6 has no right over the visual

He has further contended that the copyright over the film Halal" which included. "sound and picture negatives"

remained the property of defendant no. 5. All such rights flow in favour of the plaintiff hereinabove in view of the agreements referred to
III

and it has become the owner of the film. Thus,

nutshell, contention of learned senior counsel for the plaintiff is that it is the plaintiff alone who has a right to accord permission to anyone including the defendant nos. 1 to 4 and 7, to use any

portion of the song "Thodi Si Jo Pee Li Hai" and no one else. Defendant no. 6 having been divested of all such rights on expiry of
CS (OS) 1325/2012 Page 11 of 18

the agreement

III

the year 1984, was not competent

to grant

permission to defendant no. 2, thus, the use of portion of the song
-,

"Thodi Si Jo Pee Li Hai" in the forthcoming film "Department" by the defendant nos. 1 to 4 and 7 amounts to infringement
I

of the

copyright of the plaintiff.

He has further contended that defendant

no. 6 has even not paid any royalty to the plaintiff which shows that
i

the defendant no. 5 was conscious of the fact that the agreement stood expired. Plaintiff has also placed reliance on Dharam Dutt , :6hawan versus Ram Lal Suri & Sons 1953 (Volume) LV Punjab
!

Law Reporter 363, order dated 18th April, 2012 passed by High
I

Court at Calcutta in T N 0.6/2012 titled Saregama India Ltd. versus
,

Balaji Telefilms Ltd. & Ors. and order dated 25th March, 2011 passed by the United States Courts of Appeals in Saregama India
I

Ltd. versus Timothy Mosley. Even otherwise, payment of any such royalty would not amount to assignment of copyright in the film, as the assignment of a copyright in any work shall be valid only if it is
i

in writing and signed by the assigner. Reliance has been placed on Section 19 of the Indian Copyright Act, 1957 (hereinafter referred
I

to as "the Act").
I

Reliance has also been placed on Maharshi

Dayanand Univeristy versus Surjeet Kaur (2010) 11 SCC 159 to
i

'contend that there can no estoppel against the statutory provisions.
'

110.

As against this, learned senior counsels for.the defendant nos.
Page 12 of 18

:CS(OS) 1325/2012

1 to 3 and defendant no. 6 have vehemently contended that an agreement has to be read as a whole to infer its true and correct import. One clause of the agreement cannot be read to the exclusion of other clauses. All the clauses have to be harmoniously construed irt order to understand the true and correct scope of an agreement. If all the clauses of the agreement between the defendant no. 5 and defendant no. 6 are read in harmony with each other only

conclusion which can be inferred is that the defendant no. 6 was vested with all the rights to make, distribute and sell the records of all the films made during the period of three years for all times to come. Defendant no. 6 was also given performing rights including the publication and television broadcasting as well as reproduction of the said works. Only this interpretation of the agreement is

possible for the furtherance of the said agreement and the clause 1 cannot be read in derogation to the whole agreement. Any other
f..'

construction redundant.

of Clause

1 will make Clauses

3-A and 11 as

In nutshell, it is contended that the rights, as vest in

defendant no. 6 pursuant to Clauses 3-A and 11 cannot be restricted only for a period of three years as has been projected by. the plaintiff. It is further contended that in terms of Clause 9, defendant no. 5 was precluded from assigning the copyright in the films

produced during the said period of three years in favour of any third
CS (OS) 1325/2012
Page 13 of 18

party,

without

pnor

written

consent

of the defendant

no. 5.

Accordingly,

the rights which stood vested in defendant no. 5,

pursuant to the aforesaid agreement could not have been assigned in favour of plaintiff by the defendant no. 5~ 11. I have considered the rival contentions of the parties in the

context of the documents placed on record and I am not able to persuade myself to accept the contention of the plaintiff that the agreement expired in the year 1984 with regard to all the rights which defendant no. 6 has in the film "Namak Halal" (negatives and sound) in terms of the agreement. In my view, agreement has

to be read as a whole and not in piece meal. All the clauses of the agreement have to be harmoniously construed so as to deduce its true and correct import as also the intentions of the parties to the agreement. No particular film has been named in the agreement nor the schedule of films has been annexed therewith. Agreement has

been executed on 29th September, 1983 but from a retrospective date, that is, 1ih November, 1981. In terms of Clause 3A defendant no. 6 has been given copyrights for making records of all "contract works" which are made available to the c0l1_lpany,that is, defendant no. 6 as also the performing rights, including rights of publication, sound and television broadcasting, public performance and

mechanical reproduction in respect of "producer's films". Work has
CS (OS) 1325/2012 Page 14 of 18

been defined in Clause 2 of the agreement as literary, dramatic, musical or artistic work as defined in the Act. Producers' films

have also been defined in Clause 2, which provides producers' films shall mean all cinematograph

that the

films commenced

and/or under production during the period of the agreement but may have been completed after expiry of the agreement. Clause 11

further indicates that the defendant no. 5 had agreed that the agreement shall even govern the films which were under

production; meaning thereby that the copyright in respect of the films which had commenced even in the month of October, 1984 but not completed, defendant no. 6 was given full right to exploit such films in the manner as detailed in the agreement. The Clauses

of the agreement appears to be ambiguous and, thus, it is all the more necessary to give a harmonious construction thereof. 12. Conduct of the plaintiff and its predecessors-in-interest also

reflects that they had understood the import of the agreement in the like manner. Had the agreement lost its validity on or after 16th November, 1988 neither the plaintiff nor its predecessors-in-interest would have asked the defendant no. 6 to pay royalty in terms of the agreement.
It is a different matter that no such 'royalty'

has been

paid to the plaintiff or that it has been belatedly paid to defendant no. 5 that too without disclosing the details, is not relevant for the
CS (OS) 1325/2012 Page 15 of 18

f

'

• purpose bf disposal of present application, more so when recovery of royalty from the defendant no. 6 has not been claimed in this suit.

It may further be noted here that on earlier occasions also defendant
no. 6 had permitted the usage of songs of the movie "N amak Halal" to Nadiawala Grandson Ltd. on 3rd June, 2009 in the film

"Khambhakt Ishq" and to defendant no. 3 on i6th June, 2011 for the film "Budha Hoga Tera Baap", without any protest from the

plaintiff or its predecessors-in-interest. 13. Judgments relied upon by the plaintiff are in the context of

different facts and are of no help. In Timothy Mosley (supra), agreement has not been quoted. Further, it appears that there was a specific clause restricting the rights in favour of defendant no. 6 for a period of two years only.' In Saregama India (supra), plaintiff had objected to the song "oohh la la ohh laalaa" being similar to that of lyrics "ui amma ui amma" of the film "mawali". In Dharam Dutt's case (supra), question involved was the interpretation assignment' of the copyright. In Maharshi of 'partial (supra),

Dayanand

respondent though was not entitled to pursue BEd correspondence course under the rules somehow got herself registered for the course but when such discrepancy came to light she was declined .degree. In this context it was held that respondent cannot plead estoppel

CS (OS) 1325/2012

Page 16 of 18

..

either by conduct or against a statute so as to gain advantage of the fact that she was allowed to appear in the examination. Facts of this

case are different as the question of period of validity of the agreement is involved. 14. For the foregoing discussions, I am of the VIew that the

plaintiff has failed to make out a, prima facie, case in its favour. In my view, plaintiff shall not suffer irreparable loss and injury in the peculiar circumstances of this case. Balance of , convenience is also not in favour of the plaintiff as defendant no. 2 has copied the portion of the song with the permission of defendant no. 6, in whose favour defendant no. 5 had assigned the copyright vide the agreement in question and has invested huge amount of money in the forthcoming film. 15. Accordingly, application is dismissed. facts and

CS (OS) No. 1325/2012 Written statement be filed within four weeks with advance . copy to the plaintiff who may file. replication within four weeks thereafter. List before admission/denial
CS (OS) 1325/2012

Joint Registrar

on

s"

November,

2012 for

of the documents.
Page 17 of 18

o

Copy of the order be given to the counsel for the parties under the signatures of Court Master.

MAY 16,2012
g~
!

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A.K. PATHAK, J.

·cs (OS) 1325/2012
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Page 18 of 18

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