REOTI SARAN SHARMA Vs. NUMERO UNO INTERNATION

JUDGEMENT

(1.) The plaintiff seeks relief of ad interim injunction pending hearing and disposal of the suit under Order 39 Rule 1 & 2 Civil Procedure Code on the averments in the plaint that the plaintiff has been writing plays, dialogues, story lines and is a member of National Juries for Film & Radio Awards; that defendant No.1 is a sole proprietory concern of defendant No.2 who is a well known film actor, producor and director in the film industry; that defendant No.2 earlier produced and directed T.V. Serial "THE SWORD OF TIPU SULTAN". Thereafter, defendant No.2 embarked upon the idea of producing another TV serial with the banner "THE GREAT MARATHA"; that on this occasion, defendant No.2 invited the plaintiff to his office at Bombay for discussion; that the plaintiff entered into an agreement with defendants 1 & 2 on 1.10.1993, which is reproduced in the plaint; that according to the contract, the plaintiff started rendering his services of writing dialogues on the basis of the story and the script provided by the defendants. Upto July, 1994, the plaintiff wrote the dialogues/script upto episode No.38. Thereafter, as desired by defendant No.2, the plaintiff started providing story line scripts on the basis of his research and dramatic sequences. The story lines provided by the plaintiff were used by the defendants upto the episode No.43 approximately; that the dialogues and the words spoken by the characters in the serial were written by the plaintiff. It is upon the literary excellence of the dialogue writer that the characters become alive; that defendants failed to keep their obligation by making the payment for the works done by the plaintiff, even after the episodes were telecast. That defendants, in all, made total payments of Rs.2,30,000.00 to the plaintiff which is equivalent to the fee for 11 and half episodes. The plaintiff accordingly wrote the dialogues upto the `Victory of Mathura by the great Maratha Mahadji Scindia and the story line script upto the Shaha Alam's return to Delhi'; that the defendants fully exploited the plaintiff by giving promises to pay the plaintiff his dues by August, 1994; that copy right, however, continued to remain with the plaintiff since there was no assignment due to the lack of consideration. That the plaintiff was shocked to receive a letter dated 5.9.1994 whereby the services of the plaintiff, in relation to tele serial "THE GREAT MARATHA" were terminated with immediate effect. Defendants 1 & 2 made baseless and unfounded allegations against the plaintiff of desertion of serial and unprofessional and unethical behaviour. That defendants, by the said letter, did not mean to honour their commitments under the contract dated 1.10.1993. That defendants have given credit to the plaintiff as being the dialogue writer in each of the episodes upto the telecast of 27 episodes. The dialogues, script written by the plaintiff, were illegally used episode after episode and the defendants continued to acknowledge the same by giving credit to the plaintiff in the title as the dialogue writer upto the episode telecast till 17.11.1994 being episode No.38 though, by inserting the name of Mohafiz Haider as co-dialogue writer, which was a serious infringement and dilution of his copy right. That because of the breach and termination of the agreement and as the plaintiff had been paid only in respect of 11 and half episodes, defendant did not acquire or become vested with copy right in works created by the plaintiff in his dialogues and story line scripts. That agreement dated 1.10.1993 was merely an agreement to assign the copy right on receiving consideration thereof. The literary work of the plaintiff has not come into existence when the said agreement had been entered into nor the plaintiff had been paid in advance for his entire contracted work. That the assignment of copy right as contemplated in the agreement dated 1.10.1993 was to take effect only when the plaintiff would create the literary work and the defendants would pay remuneration to the plaintiff @ Rs.20,000.00 per episode. That the plaintiff is no longer bound by the agreement dated 1.10.1993 and in view of the breach and the subsequent termination of the contract by the defendants, the defendants were not entitled to, in any way, use or exploit the literary work done by the plaintiff in relation to the serial "THE GREAT MARATHA", particularly, his dialogues and the story line scripts, since the exclusive rights in the same vested in the plaintiff. In substance, the say of the plaintiff, as far as the relief under Order 39 Rules 1 & 2 Civil Procedure Code is concerned, is that there is no assignment of copy right in favour of the defendants by the plaintiff beyond first eleven and half episodes as he has not been paid for the episodes thereafter and prays for ad-interim injunction, pending the suit in terms of paras (a), (b) and (c) of the application.

(2.) . As against this, defendants 1 & 2 filed application under Rule 4 of Order 39 Civil Procedure Code being I.A. No. 3553/95, inter-alia contending, that the plaintiff came to this court with unclean hands and has concealed material facts and has misled the court in granting ex parte ad interim injunction. That the agreement executed between defendant No.1 and the plaintiff on 1.10.1993, would show that the plaintiff had made a full grant of copy right in his works to defendant No.1; that this court has no jurisdiction to try and entertain the suit because no cause of action has arisen in Delhi as the agreement was signed at Bombay and the serial is now being telecast by channel IV, which is the company registered and constituted in U.K. That it is a simple suit for recovery of money and the plaint, as such, is liable to be rejected under Order 7 Rule 11 Civil Procedure Code on the grounds that the plaintiff in the guise of proceedings for breach of copy right is seeking to extract money allegedly as balance amount due to him from defendant No.1. That there could be no stay granted against telecast of tele serial since the claim is only for the damages. That the suit, as framed, is liable to be dismissed since the telecast of tele serial on metro channel of Doordarshan has already completed. That the balance of convenience is not in favour of the plaintiff and this is a simple dispute relating to settlement of account, which can only be done after necessary evidence is recorded. That there can never be conditional assignment of copy right; that paragraph 2 in the agreement would show that the plaintiff has assigned the copy right in the works in its etirety to defendant No.1. The copy right can either vest or it does not. It is an incontrovertible fact that at the time the plaintiff brought this proceeding, the telecast of the serial "THE GREAT MARATHA" on Metro Channel of Doordarshan had already been concluded. That the suit is barred by delay, latches and acquiescence in as much as the telecasting of the serial has already been completed in India and no such demand was raised or made by the plaintiff on the defendants while the serial was being telecast. That in the plaint and in the application, it is concealed by the plaintiff that the copy right of the said work had already been assigned in favour of defendant No.1. As a matter of fact, the plaintiff has been paid a sum of Rs.20,000.00 per episode as provided by the aforestated agreement executed between the plaintiff and defendant No.1. On this averments, defendants 1 & 2 pray for vacating/setting aside/discharge of ex parte ad interim injunction granted in favour of the plaintiff.

(3.) . The question, which requires prima-facie consideration is whether the agreement dated 1.10.1993 created reciprocal promises to be performed as submitted by Mr. Rohtagi or that the said agreement is a complete/unconditional/unequivocal assignment of the copy rights with regard to the work/services by the plaintiff, as submitted by Mr. Shankardass for defendant No. 1 & 2.