SUPER CASSETTES INDUSTRIES LTD Vs. PUNIT GOENKA

JUDGEMENT

(1.) THIS Appeal assails the Order of the learned Single Judge passed on 30. 4. 2009. At the very commencement of the Order, the learned Single Judge has firstly granted the request made on behalf of the Defendants for filing the written Statement as well as the Reply to the Application under Order XXXIX rules 1 and 2 of the Code of Civil Procedure, 1908 ('cpc' hereinafter)within two weeks. Secondly, having done so, and briefly considering the submissions made by learned counsel for the parties, the learned Single Judge has ordered the Defendant to deposit the outstanding or unpaid amount of royalty due for the previous year, together with Rupees four crores, as a security amount for the continued usage of the copyrighted work. Thirdly, the learned Single Judge has ordered for the maintenance of accounts separating the usage of the works involved in the proceedings pending before him. It is this Order which has been assailed before us. A perusal of the Memorandum of Appeal will show that the gravamen of the Appellant's case is that the learned Single Judge should have granted an ex parte ad interim injunction restraining the Defendants from using the subject copyrighted material. In our view, this is not the norm prescribed by law.

(2.) ORDER XXXIX of the CPC lays down in Rule 1 the circumstances in which a temporary injunction can be passed; it does not speak of an ex parte ad interim injunction. This is also the position as regards Rule 2 of Order XXXIX of the cpc, which postulates the passing of an injunction to restrain the repetition or continuance of the breach of a contract. In the present case, prima facie, no contract has been breached for the reason that the fulcrum of the appellant's argument is that since the parties have failed to reach any agreement on the lump sum price payable by the defendants to the Plaintiff, an injunction must perforce be granted. The position stands clarified on a reading of Rule 3 of Order XXXIX of the CPC which ordains that the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application to be given to the opposite party. Obviously, this is to enable and elicit the response of the defendants vis-a-vis the fact of the case and the law applicable thereto. In the present case, no doubt, an adjournment of one day had been granted to the learned counsel for the Defendants. On the following day, submissions pertaining to facts, as well as to law, were indubitably made before the learned Single Judge which obviously fortified his view that the injunction prayed for should not be given without scrutinizing the defence of the defendants as would be presented in its Written Statement and Reply to the application for injunction. This is a matter essentially of discretion which ordinarily should not be interfered with, especially in a precipitate or premature appeal.

(3.) MR. Dave, learned Senior Counsel for the Appellant, has argued that from the correspondence available on the record it is manifestly clear that the intention of the Defendants was to delay and dilate the deliberations so that the contract period would elapse without a fresh understanding being in place. It is in these circumstances that he has argued that an injunction must be granted by the Court immediately, because the valuable proprietary rights of the Plaintiff stand endangered and jeopardized. He has also submitted that it is not essential or mandatory that a contract for the entire year must be executed. The Defendant could also pay in accordance with Rate Card, that is, on the basis of exactly the number of times the copyrighted material is used by the Defendant. Mr. Dave has also taken us through the provisions of the Copyright Act, 1957 which we do not think it proper to analyse in detail at this stage since it would be improper to influence the thinking of the learned Single Judge even before he decides the pending application for temporary injunction. On behalf of the Defendants it has been contended by Mr. Harish Salve, learned Senior Counsel for the respondent, that the dispute stands concluded in favour of the Defendants in entertainment Network (India) Ltd. vs- Super Cassette Industries Ltd. , 2008 (37)PTC 35 (SC) : JT 2008 (7) SC 11 : 2008 (9) Scale 69. For the same reasons we also think it expedient not to analyse this precedent threadbare, because of the view we are taking herein.