INDIAN PERFORMING RIGHT SOCIETY LTD Vs. SANJAY DALIA

JUDGEMENT

(1.) THIS Appeal has been filed against the Order of the learned Single judge by which he has directed that the Plaint be returned to the Plaintiff for presentation before the proper Court. The Plaintiff is a Society registered under Section 33 read with Rules 13 and 14 of the Copyright Rules, 1958. It is also a company limited by guarantee registered under the Companies Act, 1950. On a perusal of the Plaint, it is evident that its Registered Office is at 208, golden Chambers, New Andheri Link Road, Andheri (W), Mumbai; it also has an office at B-317, Som Dutt Chamber-I, Bhikaji Cama Place, New Delhi. Learned counsel for the Defendants/respondents has not disputed the locus standi of the plaintiff for filing the suit for permanent injunction restraining infringement of copyright, damages etc.

(2.) THE precise legal status of Defendant No. 2, M/s. Cineline Cinemas, is not known, as pleaded in the Plaint itself. It is debatable whether Defendant no. 1, the Chief General Manager, M/s. Cineline Cinemas, can at all be impleaded; but we are not called upon to decide this question. Broadly stated, the ventilated grievance against the Defendants is that "defendant No. 1 is personally liable for his acts of encouraging and actively directing the infringing acts of Defendant No. 2 by virtue of him having assured the Plaintiff of obtaining a license from the Plaintiff in respect of the Plaintiff"s works being communicated to the public by Defendant No. 2 and at Defendant No. 2"s premises". So far as is relevant for the present purposes, the Defendants have underscored the fact that they own Cinema Halls only in Maharashtra and Mumbai and that the entire cause of action, as alleged in the Plaint, has arisen in mumbai. In fairness to Mr. A. S. Chandhiok, learned Senior Counsel for the appellant, it has been conceded before us that no part of the cause of action has arisen in Delhi. What he has vehemently contended is that Section 62 of the copyright Act, 1957 grants absolute discretion and freedom of choice to the plaintiff to institute a suit wherever it voluntarily resides, or carries on business or personally works for gain. Mr. Chandhiok has stressed on the uncontroverted assertion of the Plaintiff having an office in Delhi. Therefore, according to him, the requirements of Section 62 (2) of the Copyright Act has been met; the provisions of Section 20 of the Code of Civil Procedure, 1908 (CPC for short) are wholly irrelevant; and the Plaint should be entertained by the courts in Delhi, as they sufficiently possess territorial sway over the dispute. Mr. Nayyar, learned Senior Counsel for the Defendants, has supported the dialectic of the learned Single Judge, which gives eminence also to the situs where the cause of action has arisen.

(3.) WE have carefully cogitated upon the contentions articulated before us on behalf of the litigating adversaries. Intas Pharmaceuticals Ltd. "vs-Allergan Inc. , 132 (2006) DLT 641 (DB) lays down an important principle of law in that it interprets Section 134 of the Trade Marks Act as not whittling down the provisions of Section 20 of the CPC but providing an additional forum and a place for filing a suit in case of an infringement of a trademark. The Division bench presided over by Dr. Mukundakam Sharma, J. (as his Lordship then was) has also opined that the words "notwithstanding anything contained in the CPC" are indicative of the position that Section 134 of the Trade Marks Act has to be read conjointly with and in addition to the provisions of Section 20 of the CPC. To those observations we may add that it is only in the event of a conflict between the provisions of Section 20 of the CPC and those of Section 134 of the trade Marks Act that the latter would prevail. The effort of the Court must be, so far as is possible, not to curtail the role that can be played by either of the provisions acting conjointly or simultaneously. This Court in Intas had predicated its decision on the opinion of the Supreme Court in Dhodha House "vs-S. K. Maingi, (2006) 9 SCC 41 in which it has been enunciated that Section 62 (2)of the Copyright Act provides an additional forum to enable the holder of a copyright to file a suit at the place of his residence, thereby insulating him from the tedium or vexatiousness of taking the fight to the doorstep of the violating Defendant. The Trade and Merchandise Marks Act, 1958 did not contain a provision akin to Section 134 (2) of the Trade Marks Act, 1999 enabling the plaintiff to enjoy the convenience of filing a suit at the place where he resides or carries on business etc. The extant provisions are indeed salutary in purpose and effect, since otherwise the legal remedy available for a breach of copyright or an infringement of trademark often remains illusory. It appears to us that the Court would be acquiescing in an assault on a general principle of law prevalent at least in all common law systems if it were to allow a lis to continue at a place where neither has the cause of action arisen nor has the defendant have a residence or place of business. This legal principle attempts to obviate the use of litigation as a device of harassment calculated to force an adversary into succumbing into a settlement for fear of fighting a lis at an inconvenient venue. Having made this observation, we see no impediment in extrapolating this impeccable reason onto an interpretation of Section 62 (2) of the Copyright Act and Section 134 (2) of the Trade Marks Act, (which are verbatim to each other), by requiring the Plaintiff to file a suit at the place where it has its principal or subordinate place of business if the cause of action has arisen there. Alternatively, the Plaintiff may take recourse to the provisions of Section 20 of the CPC.