Indian Heritage Society Case

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Page 1 Thursday, June 15, 2023

Printed For: 2150112 DEON DYLAN FERNANDES, School of Law Christ University
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
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2013 SCC OnLine Del 3650 : (2013) 203 DLT 596 : (2014) 57 PTC
438
In the High Court of Delhi

(BEFORE JAYANT NATH, J.)
Indian Heritage Society & Anr. .…. Plaintiffs

Mr. Pravin Anand and Ms. Tanvi Misra, Advocate
Versus
Meher Malhotra & Anr. .…. Defendants
Mr. Vikram Dogra, Mr. Samrat Nigam and Ms. Ankita Mahajan,
Advocate for D-1.
CS(OS) 2717/2011 and IA Nos. 17445/2011, 17787/2011 &
15091/2012
Decided on September 13, 2013
The Judgment of the Court was delivered by
JAYANT NATH, J. (Oral)
1. Learned counsel for the plaintiffs and defendant No. 1 submit that
the parties, namely, plaintiffs and defendant No. 1 have settled the
matter. It is agreed that the injunction granted by this Court on
04.11.2011 will continue against defendant No. 1. Accordingly,
defendant No. 1 shall abide by the said direction. Suit qua defendant
No. 1 is disposed of in these terms. The plaintiff does not press any
other relief against defendant No. 1.
2. Regarding defendant No. 2, the plaintiffs have filed an affidavit of
service stating that she has been served by e-mail. In any case, in view
of the correspondence between the Embassy of Ecuador and Ministry of
External Affairs, it is obvious that defendant No. 2 has been served. As
none is present on behalf of defendant No. 2, she is proceeded ex
parte.
3. At this stage, I may mention about a communication which is
placed on record which is received from the Ministry of External Affairs
dated 09.01.2012 pertaining to the present suit. It is stated that the
Ambassador of Ecuador in India had approached the Ministry stating
that defendant No. 2 is seeking diplomatic immunity regarding this
case. The Ministry of External Affairs has stated in the said letter dated
9.1.2012 that (i) diplomats and their family members enjoy immunity
from the jurisdiction of the local courts in the host country, as a general
rule, (ii) however, as the present case relates to a professional activity,
immunity cannot be claimed in view of the exception mentioned in
Article 31.1.c of the Vienna Convention on Diplomatic Relations, 1961
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and (ii) that before filing the suit, it is a mandatory requirement of

Section 86 of the Civil Procedure Code that consent of Ministry of
External Affairs be taken.
4. In view of the above communication, it is clear that defendant No.
2 has no diplomatic immunity.
5. Regarding objections of the Ministry of External Affairs relating to
Section 86 of the CPC, reference may be had to Section 86 CPC,
relevant portion of which reads as follows : -
“86. Suits against foreign Rulers, Ambassadors and Envoys. (1) No.
foreign State may be sued in any Court otherwise competent to try the
suit except with the consent of the Central Government certified in
writing by a Secretary to that Government:
…..
(4) The proceeding provisions of this section shall apply in relation to
-
[(a) any Ruler of a foreign State;]
[(aa)] any ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country; and
(c) any such member of the staff [of the foreign State or the staff or
retinue of the Ambassador] or Envoy of a foreign State or of the High
Commissioner of a Commonwealth country as the Central Government
may, by general or special order, specify in this behalf.”
6. Accordingly, it is only the members of the staff or staff or retinue
of the Ambassador to whom this Section applies. Learned counsel for
the plaintiffs submits that the daughter of the Ambassador would not
fall in any of the categories mentioned in Section 86 of the CPC.
7. In my opinion, there is merit in the submission of the learned
counsel for the plaintiffs. The person who is covered under Section 86
are the members of the staff of the foreign state or the staff or retinue
of the Ambassador. The Oxford English Dictionary explains ‘retinue’ as
follows : -
“Retinue-a group of advisers or assistants accompanying an
important person.
Hence, Section 86 of CPC will not apply to this case.
8. In this case, no written statement has been filed by defendant No.
2. In view of the judgments of this Court in The Indian Performing
Right Society Ltd. v. Gauhati Town Club 2013 III AD(Delhi) 333 and in
CS(OS) 1544/2012 titled as United Coffee House v. Raghav Kalra the
plaintiff need not file evidence by way of affidavit keeping in mind that
the averments made in the Plaint have been supported by Affidavit. The
Suit can hence be disposed off.
9. The issue here pertains to an Annual Day Event organised by the
plaintiffs on 18.02.2011. It is stated that defendant No. 2 was assisting
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plaintiff No. 2 towards publication of the book comprising of the subject

matter of the present suit. The book was to consist of photographs
depicting different Asanas of Iyenger Yoga and their improvisations
with the use of props etc. meant to tackle different health issues.
Defendant No. 2 is stated to have learnt about the photo shoots of the
Annual Day Event and she profusely recommended her friend,
defendant No. 1 herein. Defendant No. 1, thereafter, took photographs
during practice session leading up to the Annual Day as well as the
actual performance on the Annual Day under the complete guidance,
supervision and instructions of plaintiff No. 2. It is stated that as per
the terms of the engagement of defendant No. 1, it was clearly agreed
that she will not deliver any of the said photographs taken at the
instance of plaintiff No. 2 to anyone else. Plaintiff No. 2 came to know
around April/March 2011 that defendant No. 2 has received
photographs from defendant No. 1. This act of defendant No. 2 is stated
to be in complete disregard and in breach of the agreement of
defendant No. 2's engagement terms. It is stated that it is
apprehended that defendant No. 2 would misuse the photographs.
Defendant No. 2, it is stated, has failed and neglected to handover the
necessary photographs to plaintiff No. 2 and has wrongly been and
illegally demanding that in view of handing over of these compilations,
she be allowed to join the teacher's training program and stay at the
Yoga Centre with a remuneration of atleast Rs. 1,00,000/- for her to
obtain a work permit.
9. Learned counsel for the plaintiffs relies on the provisions of
Section 17(b) of the Copy Right Act which reads as follows : -
“17. ….. Subject to the provisions of this Act, the author of a work
shall be the first owner of the copyright therein:
…..
(b) subject to the provisions of clause (a), in the case of a
photograph taken, or a painting or portrait drawn, or an engraving or a
cinematograph film made, for valuable consideration at the instance of
any person, such person shall, in the absence of any agreement to the
contrary, be the first owner of the copyright therein;”
10. Hence, it is stated that copyrights of the plaintiffs are being
threatened to be violated by defendant No. 2. The averments in the
plaint are supported by an affidavit of Ms. Nivedita Joshi, constituted
attorney of the plaintiffs. Learned counsel for the plaintiffs submits that
he does not press for any other relief other than that the injunction
order dated 04.11.2011 be made absolute.
11. A clear case of threat to the rights of the plaintiff under the Copy
Right Act are made out.
12. Hence, a decree of permanent injunction is passed in favour of
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the plaintiffs and against defendant No. 2 making the injunction order
dated 04.11.2011 absolute. No orders as to costs.
13. All pending applications also stand disposed of.
———
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Thursday, June 15, 2023

In the High Court of Delhi

Indian Heritage Society & Anr. .…. Plaintiffs

and (ii) that before filing the suit, it is a mandatory requirement of

plaintiff No. 2 towards publication of the book comprising of the subject

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