Partly allowed

M/s.Sri Venkateshwara Bhakthi v. M/s.Apalya Technologies Pvt.

Madras HC1 Feb 2019CS/275/2015

Case brief

AI extract

What is this about?

In a summary judgment on an intellectual property suit, the court observed that defendants stopped broadcasting the plaintiff's content before 2011 and accepted liquidated damages, thereby granting permanent injunctions and dismissing remaining prayers regarding accounts.

What did the court decide?

Injunctions granted on items (a), (b), and (c). Liquidated damages (item d) satisfied by Rs. 10 lakh cheque. Remaining prayers (e), (f), and (g) negatived.

M/s.Sri Venkateshwara Bhakthi Vs M/s.Apalya… — Intellectual Property | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 01.02.2019

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CORAM

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THE HON'BLE MR.JUSTICE M.SUNDAR

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C.S.No.275 of 2015

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M/s. Sri Venkateshwara Bhakthi Channel, No.50, Venkatnarayana Road,

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T. Nagar, Chennai – 600 017. .. Plaintiff
Vs.

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M/s.Apalya Technologies Private Limited, Plot No.89, 8-2-120/76, 2^nd Floor, Vaibhav Constructions, Road No.2, Banjara Hills, Hyderabad – 500 034.

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M/s. Spice Digital Limited, 60D, Street No. C-5, Sainik Farms, New Delhi – 110 062. .. Defendants

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This Civil Suit is preferred, under Order VII Rule 1 CPC read with Sections 55, 62 of the Copyright Act, 1957 and Sections 27 and 135 of the Trade Marks Act, 1999 seeking to pass a judgment and decree against the defendant

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a) A permanent injunction restraining the Defendants, their men, agents, successors in business, assigns, representatives or any other person or entity claiming through or under them from in any manner infringing the plaintiff's copyright by using/ offering/ distributing/ broadcasting/ telecasting/ dealing with the contents/ logos/ labels/ photographs/ videos/ audios of the plaintiff including local events, sevas, poojas, aartis etc of M/s.

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http://www.judis.nic.in

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Tirumala Tirupati Devasthanams with or without the logos, labels, photographs, videos, audios and other embellishments found therein containing the identifying features of plaintiff and/or that of the M/s.Tirumala Tirupati Devasthanams thereby enabling it to be disseminated or transmitted through any other person/persons, through mobile phone networks, satellite networks, satellite channels or in any manner whatsoever;

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b) a permanent injunction restraining the defendants, their men, agents, successors in business, assigns, representatives or any other person or entity claiming through or under them from in any manner using/ offering/ distributing/ broadcasting/ telecasting/ dealing with the contents/ logos/ labels/ photographs/ videos/ audios of the plaitniff including local events, sevas, poojas, aartis etc of M/s. Tirumala Tirupati Devasthanams with or without the logos, labels/ photographs/ videos/ audios and other embellishments found therein containing the identifying features of plaintiff and/or that of the M/s.Tirumala Tirupati Devasthanams thereby passing off and enabling others to pass off by way of disseminating or transmitting it in any manner whatsoever;

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c) an order of mandatory injunction directing the defendants, their men, agents, successors in business, assigns, representatives or any other person or entity claiming through or under them, not to project themselves/ not grant any license /sub license to any third party as proprietors, representatives, agents, distributors of the contents of the plaintiff including local events, sevas, poojas, aartis etc of the M/s. Tirumala Tirupati Devasthanams with or without the logos, labels, trade description and other identifying features of the plaintiff, and/or that of the M/s. Tirumala Tirupati Devasthanams, or any rights in connection thereto or in any manner connected with the plaintiff;

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d) direct the defendants to pay a sum of Rs.10,00,000/- as liquidated damages to the plaintiff for their acts of infringement of copyright and passing off;

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e) an order directing the defendants, their men, agents, successors in business, assigns, representatives or any other person or entity claiming through or under them to deactivate the server containing the contents of the plaintiff and to deliver up the decoder provided by the plaintiff and any other soft copy or copy/copies of the contents, labels, logos and other copyright protected materials of the plaintiff in any mechanically/electronically retrievable storage form without making or retaining any copy/copies, alterations, reproductions or duplicates of the same in any form whatsoever;

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f) a preliminary decree be passed in favour of the Plaintiff directing the Defendants to render true and faithful accounts of all the transactions made by them jointly and/or severally through their alleged sub-licensees from the first day that they started using plaintiff's said intellectual property rights till the day when they cease and desist from using the plaintiff's said intellectual property rights including the revenue due payable to the plaintiff by submitting MIS reports with correct data and particulars.

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g) pay the plaintiff costs of the suit; and

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pass such further or other orders as this Court may deem fit in the circumstances of the case and thus render justice.

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For Defendants : Mr.Sricharan Rangarajan for Ms.M.Aparna for D1 Mr.G.K. Muthukumar for M/s. GMS Law Associates for D2

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SUMMARY JUDGMENT

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There is one plaintiff and there are two defendants in this suit.

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Ms.Rithika Reddy, learned counsel representing the counsel on record

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for sole plaintiff and Mr.Sricharan Rangarajan, learned counsel representing the counsel on record for first defendant and Mr.G.K.Muthukumar, learned counsel of M/s.GMS Law Associates (Law Firm) on behalf of second defendant are before this Commercial Division.

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Read this in conjunction with and in continuation of earlier proceedings of this Commercial Division, particularly proceedings dated 12.09.2018 and 11.10.2018 besides proceedings dated 23.11.2018, 17.12.2018, 21.01.2019, 25.01.2019 and 30.01.2019.

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The factual matrix that unfurls from a perusal of the averments in the

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plaint and submissions made in the aforementioned earlier hearings are as follows:

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4(a) Plaintiff is controlled and managed by 'Tirumala

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Tirupati Devsathanam' and it is a company established under

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Section 25 of the old Companies Act viz., Companies Act, 1956. In other words, it is a non-profit company. It is also submitted that plaintiff is engaged in the business of running a devotional channel and the said channel goes by the name 'Sri Venkateshwara Bhakthi Channel' ('SVBC' for brevity). In other words, plaintiff is inter alia in visual media business.

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4(b) SVBC is the exclusive media for all telecasts including live devotional, aarti, local events, temple programmes, etc., pertaining to and in relation to temples under the control and management of Tirumala Tirupati Devasthanam. (hereinafter collectively and in generic sense referred to as 'said content' for the sake of convenience and clarity).

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4(c) Parties to this lis acknowledge the position that

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plaintiff herein is the owner of said content. It is also not in

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dispute that plaintiff provided the said content to first defendant for dissemination under an agreement. It was also agreed that the first defendant would manage the complete

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product and would also be solely responsible for the management, advertisements, promotions and campaigns

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carried out by them therein.

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4(d) When things stood as above, at some point of time, plaintiff had a reasonable apprehension that the reports filed by the first defendant do not reflect the actual revenue accrued therefrom. This is the genesis of this lis.

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4(e) Under such circumstances, according to plaintiff, it came to their knowledge that the second defendant is disseminating/transmitting said content. On further enquiry, it came to light that first defendant had entered into an agreement dated 18.08.2008 with the second defendant. This according to plaintiff is impermissible.

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4(f) Plaintiff contended that defendants are not

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entitled to use said content including logos, trademarks, trade names and other identifying features found therein contained in trademarks/trade names of the plaintiff. It is also submitted that the defendants are not entitled to license or sub-license as also transfer the said content.

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4(g) Most importantly, it is affirmed by plaintiff's

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counsel on instructions that plaintiff's channel i.e., SVBC is being regularly telecast inter-alia through 'Direct to Home' ('DTH' for brevity) mode and other modes of transmission as a 'Free to air' ('FTA' for brevity) channel.

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4(h) Under such circumstances, plaintiff has laid the

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instant suit in 2015. To be precise, plaint has been

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presented in this Court on 25.03.2015,

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4(i) Prayer paragraph in the plaint is paragraph 19, paragraph 19 consists of 7 sub-paragraphs i.e., subparagraphs (a) to (g). In other words, there are 7 limbs of prayers.

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4(j) Prayer paragraph reads as follows:

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'19. The Plaintiffs, therefore, humbly prays that this Hon'ble Court may be pleased to pass a Judgment and Decree on the following terms:-

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dealing with the contents/ logos/ labels/ photographs/ videos/ audios of the plaintiff including local events, sevas, poojas, aartis etc of M/s. Tirumala Tirupati Devasthanams with or without the logos, labels, photographs, videos, audios and other embellishments found therein containing the identifying features of plaintiff and/or that of the M/s.Tirumala Tirupati Devasthanams thereby enabling it to be disseminated or transmitted through any other person/persons, through mobile phone networks, satellite networks, satellite channels or in any manner whatsoever;

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b) a permanent injunction restraining the defendants, their men, agents, successors in business, assigns, representatives or any other person or entity claiming through or under them from in any manner using/ offering/ distributing/ broadcasting/ telecasting/ dealing with the contents/ logos/ labels/ photographs/ videos/ audios of the plaintiff including local events, sevas, poojas, aartis etc of M/s. Tirumala Tirupati Devasthanams with or without the logos, labels/ photographs/ videos/ audios and other embellishments found therein containing the identifying features of plaintiff and/or that of the M/s.Tirumala Tirupati Devasthanams thereby passing off and enabling others to pass off by way of disseminating or transmitting it in any manner whatsoever;

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plaintiff including local events, sevas, poojas, aartis etc of the M/s. Tirumala Tirupati Devasthanams with or without the logos, labels, trade description and other identifying features of the plaintiff, and/or that of the M/s. Tirumala Tirupati Devasthanams, or any rights in connection thereto or in any manner connected with the plaintiff;

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d) direct the defendants to pay a sum of Rs.10,00,000/as liquidated damages to the plaintiff for their acts of infringement of copyright and passing off;

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f) a preliminary decree be passed in favour of the Plaintiff directing the Defendants to render true and faithful accounts of all the transactions made by them jointly and/or severally through their alleged sub/licensees from the first day that they started using plaintiff's said intellectual property rights till the day when they cease and desist from using the plaintiff' said intellectual property rights including the revenue due payable to the plaintiff by submitting MIS reports with correct data and particulars.

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g) pay the plaintiff costs of the suit; and

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pass such further or other orders as this Court may

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deem fit in the circumstances of the case and thus render justice.'

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This being a summary judgment, the aforesaid factual matrix, which is more in the nature of a thumbnail sketch of facts (with elaboration wherever it is deemed imperative) would suffice for appreciating this summary judgment. What unfurled with utmost clarity in the aforesaid hearings before this Commercial Division is that defendant has stopped telecast said content

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before 2011.

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Besides factual matrix, it may be necessary to briefly trace the trajectory of this suit. First defendant was set ex-parte on 12.09.2018, but the first defendant has come up with an application to set aside the order, setting it ex-parte and the application is A.No.928 of 2019. This application is not opposed by the plaintiff and the second defendant. Prayer in this application is acceded to, vide a separate order.

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As mentioned supra, both the defendants now submit and confirm

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that the telecast which was stopped in 2011 will not be commenced again

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without written authority and or any suitable agreement from the plaintiff or any other entity authorised by the plaintiff in this regard. Likewise plaintiff's

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counsel on instructions submits that SVBC channel will continue to telecast said content as a Free to Air (FTA) channel without any rider as alluded to supra.

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In the light of the aforesaid narrative, which unfurled and unfolded

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inter-alia in the hearings, there is no difficulty in prayers contained in sub paragraphs (a) to (c) of the prayer paragraph in the plaint being acceded to. With regard to sub-paragraph (d), a cheque drawn in favour of plaintiff for Rs.10 lakhs being liquidated damages is tendered by first defendant today vide cheque No.025070, dated 01.02.2019 drawn on HSBC Bank, Hyderabad.

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Rendition of accounts prayer contained in sub-paragraph (f) has become infructuous in the light of prayer in sub-paragraph (d) being satisfied. In the light of stated position of defendants, prayer contained in sub-paragraph (e) becomes otiose. In the light of the trajectory of the suit, prayer in subparagraph (g) for costs does not require any consideration.

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Unnumbered sub-paragraph [after sub-paragraph (g)] is a usual residuary limb in any prayer paragraph and in the light of what has unfurled in the hearing, no orders may be necessary under the same.

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Be that as it may, one most relevant aspect of the matter, which has

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impelled this Commercial Division to resort to passing a summary judgment

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under Order XIII-A of amended 'The Code of Civil Procedure, 1908,' ('CPC' for brevity) as amended by ' The Commercial Courts Act, 2015' ('said Act' for brevity) is the presence of the Founder and Chief Technical Officer of the first defendant Mr.B.Suraya Shive Shanker before this Commercial Division today with the aforesaid cheque and a memo dated 01.02.2019 filed by first

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defendant, which reads as follows:

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MEMO ON BEHALF OF DEFENDANT NO.1

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The 1^st Defendant above named submits as follows:-

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1. The 1^st Defendant agrees to pay an amount of Rs.10,00,000/(Rupees Ten Lacs only) to the plaintiff in full and final settlement of any and all claims and disputes arising out of the subject matter of the present suit.

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2. Pursuant thereto, the 1^st Defendant is issuing a cheque bearing No.025070 dated 01.02.2019 drawn on HSBC Bank, Somajiguda, Hyderabad in favour of the plaintiff for an amount of Rs.10,00,000/-(Rupees Ten Lakhs Only) and shall hand over the same to the plaintiff before this Hon'ble Court on the next date of hearing.

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3. 1^st Defendant submits that the said amount is being paid to the Plaintiff as a full and final settlement against all its claims/disputes against Defendant No.1 as claimed in the captioned suit. Pursuant to the payment of the above-mentioned amount no further claims, rights or obligations of the plaintiff shall survive against Defendant No.1 in respect to the subject matter of the present suit.

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4. The 1^st Defendant submits that there being no outstanding claims against the 1^st Defendant, the above suit be disposed off by taking this memo on record.

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5. The 1^st Defendant submits that they have stopped using the contents of the plaintiff which is the subject matter of this suit.

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In the light of the above, it is prayed that the above memo filed on behalf of the 1^st Defendant be taken on record and appropriate orders be passed by this Hon'ble Court in the interest

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of justice.

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Dated at Chennai this 1 st Day of February 2019
sd/-
1 st Defendant'

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Before I advert to the memo and what unfurled in the hearing today,

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it is necessary to refer to the powers of this Commercial Division to pass a summary judgment. The Powers of this Commercial Division to pass a summary judgment is contained in Order XIII-A of amended CPC as amended by said Act.

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The grounds on which a summary judgment can be passed are adumbrated in Rule 3 of Order XIII-A of amended CPC as amended by said Act. A perusal of Rule 3 of Order XIII-A of amended CPC as amended by said Act reveals that this Commercial Division has powers to pass a summary judgment when the plaintiff

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has no real prospect of succeeding in the claim or when the defendant has no

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real prospect of successfully defending the claim and when there is no other compelling reason as to why the claim should not be disposed of before

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recording oral evidence.

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In the light of the narrative supra, particularly wherein the prayer

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limbs, which have been alluded to supra, the defendants have no real prospect of successfully defending the claim qua sub-paragraphs (a), (b) and (c), (e) having become otiose owing to stated position of defendants. Sub-paragraph (d) has been complied and satisfied by the defendants in view of tender of cheque made today, which has been duly accepted by the plaintiff. As mentioned supra, as sub-paragraphs (d) refers to liquidated damages, subparagraph (f) becomes infructuous. Plaintiff has no real prospect of success in sub-paragraph (f) in the light of sub-paragraph (d) being liquidated damages and therefore, I have held that it has become infructuous. To be noted, once liquidated damages is given, the question of rendition of account does not arise. As mentioned supra, in the light of the trajectory of the suit, subparagraph (g) does not require any consideration. As mentioned supra, unnumbered sub-paragraph [after sub-paragraph (g)] is only a usual residuary

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limb of any prayer paragraph. In other words, while plaintiff has no real prospect of succeeding in the claim qua sub-paragraphs (a), (b), and (c) and (e)/(f), having become otiose and (d) having been satisfied by tender of cheque (in favour of plaintiff) for Rs.10 lakhs by first defendant. No orders are required in unnumbered sub-paragraph [after sub-paragraph (g)], the same

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being the usual residuary limb of any prayer paragraph.

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This takes us back to Mr.B.Surya Shive Shanker. An extract from the Minutes of the Board of Directors of the First Defendant Company held on 17.01.2019 has been placed before me. They shall form part of the summary judgment. Mr.B.Surya Shive Shankar, has produced his PAN card and also given a photo copy of the said photo identity card, which is self attested. This shall

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also form part of the summary judgment.

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More importantly, Mr.B.Surya Shive Shanker, who is present in Court reiterates the contents of the memo dated 01.02.2019, which has been extracted and reproduced supra. While reiterating the content of the memo dated 01.02.2019, the Founder and Chief Technical Officer submitted that he is functioning as Chief Technical Officer, as he is an Engineering Graduate in B.Tech (Computer Science). Besides reiterating the entire contents he also reiterates that the telecast, which commenced from some time in 2007 and the same was stopped before 2011, will not be commenced unless there is a license in accordance with law from the plaintiff. Learned counsel for plaintiff, on instructions, confirms the obtaining factual position. In other words, learned counsel for plaintiff on instructions submit that it is correct that the

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defendants have stopped telecast of aforesaid content from some time around

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Owing to all that have been set out supra and in the light of the narrative supra, there shall be a summary judgment in this suit in terms of subparagraphs (a), (b) and (c) of prayer paragraph. Sub-paragraph (d) is satisfied in the light of cheque dated 01.02.2019, which has been tendered today. Subparagraph (e) has become otiose and sub-paragraph (f) also cannot be acceded to in the light of sub-paragraph (d) being liquidated damages, which has been

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satisfied. Therefore, the prayers contained in sub-paragraphs (e) and (f) are

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negatived. Prayer contained in sub-paragraph (g) is also negatived. No orders are required in unnumbered sub-paragraph.

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Suit is decreed on above terms. There shall be no order as to costs.

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01.02.2019

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Speaking order Index : Yes/No vsm

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M.SUNDAR, J. vsm

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C.S.No.275 of 2015
01.02.2019

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M/s.Sri Venkateshwara Bhakthi v. M/s.Apalya Technologies Pvt.

Case brief

What is this about?

What did the court decide?

M/s.Sri Venkateshwara Bhakthi v. M/s.Apalya Technologies Pvt.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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