GRAMOPHONE CO OF INDIA LTD Vs. BALESWAR

JUDGEMENT

(1.) In this application the petitioner has prayed for an order of injunction restraining the respondent No. 2 its servants or agents from in any way manufacturing or selling or marketing or dealing with or distributing any copies of any records of any performances rendered by the respondent 1 or for the respondent 2 either in disks or in any cassette or otherwise or at all. Petitioner has also prayed for an injunction restraining the respondent 1 from giving any performance for any person other than the petitioner for the purpose of manufacturing of records. The case of the petitioner is that by a contract entered into by and between the petitioner and the respondent 1 dt. May 14, 1984 the respondent 1 became exclusive artiste of the petitioner on inter alia the following terms and conditions: "1. For the purpose of this Agreement the following words shall have the meanings set forth against them: "PERFORMANCE" shall include speech, singing playing on instrument whether alone or with another or others. "RECORD" shall mean a gramophone record magnetic tape (whether reel to 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 use in conjunction with or part of a contrivance or appliance bearing or used for giving visual images). "CINEMATOGRAPH FILM" shall mean 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 normal cinema theatrical or television media and shall not include any such recordings as are used for presentation in any other manner whatsoever. "RETAIL PRICE" shall mean the retail price or recommended retail price less any tax or taxes levied in respect of the sale or which have to be recovered as, part of the selling price.

(2.) The Artiste shall during a period of ONE(1) year computed from the 3rd day of April, 1984 attend at such places and times reasonably convenient to both the Artiste and the Company as the Company shall require and shall render such performance (whether done or together with one or more other artistes) as the Company shall elect for reproduction in by or on any record. The minimum number of performances which the Artiste shall render and the Company shall record as aforesaid during the said period shall be sufficient to comprise per annum not less than the equivalent of one double sided seven inch single gramophone records) manufactured to plate at a speed of 45 revolutions per minute. The Company shall commence sale of each record containing the aforesaid performances within six months of completing the recordings, provided however that the Company may release two successive records of the same artiste at intervals of up to twelve months.

(3.) The Artiste shall at the request of the Company repeat any performance for the purpose of producing in the opinion of the Company a satisfactory record.