Allowed

M/s.Novex Communications Pvt. Ltd., v. Tech Mahindra Ltd.

Madras HC6 Jul 2021CS/414/2020

Case brief

AI extract

What is this about?

The Madras High Court allowed the plaintiff to withdraw a civil suit alleging copyright infringement by the defendant, granting liberty to approach another forum. The court held that pleadings do not bar withdrawal where the suit remains unheard and the defendant's right to defend is preserved.

What did the court decide?

Suit dismissed as withdrawn; plaintiff permitted to initiate proceedings before any other forum having jurisdiction; no order as to costs.

M/s.Novex Communications Pvt. Ltd., Vs Tech Mahindra Ltd. — Intellectual Property | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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(ORDINARY ORIGINAL CIVIL JURISDICTION)

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TUESDAY, THE 6TH DAY OF JULY 2021

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THE HON'BLE DR. JUSTICE G.JAYACHANDRAN

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C.S.NO.414 OF 2020 AND O.A.NO.772 O 2020 AND A.NO.3256 OF 2020 AND A.NOS.765 AND 2259 OF 2021

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C.S.No.414 of 2020:-

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M/s. Novex Communications Pvt. Ltd., Rep.by its authorised Signatory, Mr.S.Swaminathan, Having its office at 17/7,NRCS Towers, 4^th Floor, Kodambakkam High Road, Nungambakkam,Chennai-600 034.

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...Plaintiff / Applicant in O.A.No. 772 of 2020 A.No. 3256 of 2020 and A.No. 2259 of 2021.

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Versus

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Tech Mahindra Ltd., Having Registered Office at Sharda Centre, Off Carve Road, Pune-411 004. Represented by Mr.C.P.Gurunani, Managing Director and CEO ...Defendant / Respondent in O.A.No. 772 of 2020 https://hcservices.ecourts.gov.in/hcservices/ A.No. 3256 of 2020 and A.No. 2259 of 2021

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https://hcservices.ecourts.gov.in/hcservices/

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Civil Suit praying that this Hon'ble Court be pleased to (a) issue a Judgement and Decree of perpetual Injunction restraining Defendant, its

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directors, their servants, employees, agents, assignees, licensees, representatives, and/or any personclaiming through them or acting on their behalf, from publicly performing or in any manner communicating the sound recordings of the songs assigned and authorized to the Plaintiff or allowing their premises or any premises under their control to be used for the said purposes, without obtainng non-exclusive public performance rights in sound recordings from the Plaintiff, or otherwise infringing the copyright in any work owned and protected by the Plaintiff;

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(b) To Direct the Defendant to hand over all disks, CDs, laptops, mobile phones, SD cards, flash drives, hard disks, computers and other media containing the Plaintiff copyrighted works and used by the Defendant and to deliver them up for destruction.

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(c) To direct the Defendant to pay the Plaintiff Damages in the sum of Rs.1,25,23,000/- (One Crore Twenty-Five Lakh and Twenty-Three Thousand Only) for illegal exploitation of the sound recordings of the songs assigned and licensed to the Plaintiff.

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(d) pass a Preliminary Decree in favour of the Plaintiff directing the

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Defendant to render true and complete details of all the in house events held https://hcservices.ecourts.gov.in/hcservices/ by them over the last three years prior to institution of the present Suit

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https://hcservices.ecourts.gov.in/hcservices/

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where on ground performance rights were exploited and for a final Decree

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in favour of the Plaintiff for the amount the Plaintiff is found entitled to on account of using sound recordings of the Plaintiff, without any authorization from the Plaintiff.

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(e) Pass a Judgment and Decree in favour of the Plaintiff mandatory Injunction directing the Defendant to provide free and unlimited access to all offices and in-house events of the Defendant in order to monitor the usage of the Plaintiff's sound recordings;

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(f) For costs;

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O.A.No.772 of 2020:-

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Original Application praying that this Hon'ble Court be pleased to issue an order of injunction restraining the Respondent, its directors, their servants, employees, agents, assignees, licensees, representatives, and/or any person claiming through them or acting on their behalf, from publicly performing or in any manner communicating the sound recordings of the songs assigned and authorized to the Applicant or allowing their premises or any premises under their control to be used for the said purposes, without obtaining non-exclusive public performance rights in sound recordings from

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the Applicant, or otherwise infringing the copyright in any work owned and protected by the Applicant pending the hearing and final disposal of this https://hcservices.ecourts.gov.in/hcservices/ Suit.

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A.No.3256 of 2020:-

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Application praying that this Hon'ble Court be pleased to pass an Order Directing the Respondent to give at least 5 (five) days' notice to the Applicant before conducting any event involving exploitation of sound recordings belonging both to the film and non-film genreboth in Hindi and regional languages and more particularly belonging to the Applicant and also grant access to the Applicants representatives at such events organized or conducted by the Respondent pending the hearing and final disposal of this Suit.

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A.No.2259 of 2020:-

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Application praying that this Hon'ble Court be pleased to pass an Order allowing the Applicant/Plaintiff to withdraw the present suit with liberty to approach any other forum to initiate proceedings on the same cause of action;

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A.No.765 of 2020:-

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Tech Mahindra Ltd., Represented by Mr.Milind Pendse Assistant General Counsel & Constituted Attorney Having Registered Office at: Gateway Building, Apollo Bunder, Mumbai, Maharashtra-400 001.

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...Applicant/Plaintiff

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Versus

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M/s. Novex Communications Pvt. Ltd., https://hcservices.ecourts.gov.in/hcservices/ Rep.by its authorised representative, Mr.S.Swaminathan,

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Having its office at : 17/7,NRCS Towers, 4^th Floor, Kodambakkam High Road, Nungambakkam,Chennai-600 034.

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...Respondent/Defendant

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Application praying that this Hon'ble Court be pleased to reject the Plaint filed in the present proceeding under Order VII Rule 11 (a) and (d) of the Civil Procedure Code, 1908.

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This suit along with these applications coming in this day before this court for hearing in the presence of Mr.P.V.Balasubramaniam for M/s.BFS Legal, Advocates for the Plaintiff in C.S.No.414 of 2020 and for the applicant in O.A.No.772 of 2020 and A.No.3256 of 2020 and A.No.2259 of 2021 and for the respondent in A.No.765 of 2021 and M/s.N.C.Vishal, Advocate for the defendant in C.S.No.414 of 2020 and for the respondent in O.A.No.772 of 2020 and A.No.3256 of 2020 A.No.2259 of 2021 and for applicant in A.No.765 of 2021 and upon reading the plaint filed in C.S.No.414 of 2020 and the judges summon and the affidavit of S.Swaminathan filed in O.A.No.772 of 2020 and A.No.3256 of 2020 and A.No.2259 of 2021 and the judges summon and the affidavit of Milind Pendse filed in A.No.765 of 2021 and the Counter affidavit of Milind Pendse filed in O.A.No.772 & A.No.3256 of 2020 and this court having observed that any averment by way of counter affidavit by the defendant or https://hcservices.ecourts.gov.in/hcservices/ averment made by the plaintiff in their pleadings cannot stand in the way of

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the Plaintiff who thought fit to withdraw the plaint and initiate proceedings

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before the other forum on the same cause of action, the plaintiff wants to

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approach other forum on the same cause of action of the present suit which has not been heard and decided, the plaintiff shall be permitted to withdraw the suit with liberty to file proceedings before any other forum having jurisdiction, protecting the defendant right to plead all defence including the

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objections now raised, it is ordered as follows:-

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That the suit in C.S.No.414 of 2020, be and is hereby dismissed as withdrawn.

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That the plaintiff herein, shall be at liberty to initiate proceedings before any other forum having jurisdiction.

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That these O.A.No.772 of 2020, A.No.3256 of 2020, A.Nos.765 and 2259 of 2021 do stand closed.

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4)That there shall be no order as to costs of this suit.

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WITNESS THE HON'BLE MR. JUSTICE SANJIB BANERJEE, CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID, THIS THE 6TH DAY OF JULY 2021.

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Sd./-

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ASSISTANT REGISTRAR (Comm.Cases) //Certified to be true copy//

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Dated at Madras this the day of 2021.

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COURT OFFICER(O.S.)

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From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments.

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https://hcservices.ecourts.gov.in/hcservices/

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VSP 06/08/2021

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C.S.NO.414 OF 2020 AND

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O.A.NO.772 O 2020 AND A.NO.3256 OF 2020 AND

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A.NOS.765AND 2259 OF 2021

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ORDER

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DATED: 06.07.2021

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THE HON'BLE DR.JUSTICE G.JAYACHANDRAN

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APPROVAL ON: 07/10/2021

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APPROVED ON: 12/10/2021

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https://hcservices.ecourts.gov.in/hcservices/

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.07.2021

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CORAM

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THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

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C.S.No.414 of 2020 and A.No.2259 of 2021 and

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O.A.No.772 of 2020, A.No.3256 of 2020 and A.No.765 of 2021

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M/s. Novex Communications Pvt.Ltd., Rep. by its authorised Signatory, Mr.S.Swaminathan, Having its office at 17/7, NRCS Towers, 4^th Floor, Kodambakkam High Road, Nungambakkam, Chennai – 600 034 ... Plaintiff

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Tech Mahindra Ltd., Having Registered Office at Sharda Centre, Off Carve Road, Pune – 411 004. Represented by Mr.C.P.Gurunani Managing Director and CEO. ...Defendant

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Prayer :Civil Suit filed under Order IV Rule 1 of the Original Side Rules R/W Order VII Rule 1 of the CPC and under Section 51, 55 and 62 of the Copy Right Act, 1957 praying for the following:

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https://hcservices.ecourts.gov.in/hcservices/

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a. to issue a Judgement and Decree of perpetual Injunction restraining Defendant, its directors, their servants, employees, agents, assignees, licensees, representatives, and/ or any person claiming through them or acting on their behalf, from publicly performing or in any manner communicating the sound recordings of the songs assigned and authorized to the Plaintiff or allowing their premises or any premises under their control to be used for the said purposes, without obtaining non-exclusive public performance rights in sound recordings from the Plaintiff, or otherwise infringing the copyright in any work owned and protected by the Plaintiff;

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b) to pass a Judgement and Decree of directing the Defendant to hand over all disks, CDs, laptops, mobile phones, SD cards, flash drives, hard disks, computers and other media containing the Plaintiff copyrighted works and used by the Defendant and to deliver them up for destruction.

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c) to pass a Judgment and Decree directing the Defendant to pay the Plaintiff Damages in the sum of Rs.1,25,23,000/- (One Crore Twenty -Five Lakh and Twenty – Three Thousand Only) for illegal exploitation of the

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https://hcservices.ecourts.gov.in/hcservices/ sound recordings of the songs assigned and licensed to the plaintiff.

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d) to pass a Preliminary Decree in favour of the Plaintiff directing the Defendant to render true and complete details of all the in house events held by them over the last three years prior to institution of the present Suit where on ground performance rights were exploited and for a final Decree in favour of the Plaintiff for the amount the Plaintiff is found entitled to on account of using sound recordings of the Plaintiff, without any authorization from the Plaintiff.

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e) to pass a Judgement and Decree in favour of the Plaintiff Mandatory Injunction directing the Defendant to provide free and unlimited access to all offices and in-house events of the Defendant in order to monitor the usage of the Plaintiff's sound recordings;

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f) for costs;

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For Plaintiff : Mr.P.V.Balasubramaniam

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For Defendant : M/s. N.C.Vishal

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J U D G M E N T

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Application No.2259 of 2021 is filed to permit the plaintiff to

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withdraw the present suit with liberty to approach any other forum to initiate

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https://hcservices.ecourts.gov.in/hcservices/

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proceedings on the same cause of action.

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2.The suit filed by the defendant invoking Section 62 of the Copyright Act claiming that the plaintiff is carrying on business within the jurisdiction of this Court and their copyright is infringed by the defendant who is carrying on business in Pune. In the interlocutory application, the defendant has filed counter wherein strong objection for the jurisdiction of this Court has been raised. In the said circumstances, the present application is filed to withdraw the suit with liberty to approach any other forum to initiate proceedings on the same cause of action. In the affidavit along with this application, the plaintiff has stated that though this Court has jurisdiction to entertain the suit, since there is some objection which is certainly debatable but to mitigate loss of time and delay, the plaintiff company has decided to withdraw the present suit.

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3.Learned counsel appearing for the defendant took strong objection

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for the leave sought in this application while withdrawing the suit.

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4.According to the learned counsel appearing for the defendant, after counter filed in O.A.No.772 of 2020 and A.No.3526 of 2020 wherein the defendant has disclosed all his defense including the point of jurisdiction, the plaintiff wants to withdraw the suit and agitate the cause before some

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other forum after filling up lacuna in their pleadings. Hence, pleaded that https://hcservices.ecourts.gov.in/hcservices/ liberty should not be granted.

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https://hcservices.ecourts.gov.in/hcservices/

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5.After considering the rival submissions and the reasons stated to withdraw the suit with liberty to approach other forums on the same cause of action, this Court holds that any averment by way of counter affidavit by the defendant or averment made by the plaintiff in their pleadings cannot stand in the way of the plaintiff who thought fit to withdraw the plaint and initiate proceedings before the other forum on the same cause of action. The plaintiff wants to approach other forum on the same cause of action of the present suit which has not been heard and decided. The plaintiff shall be permitted to withdraw the suit with liberty to file proceedings before any other forum having jurisdiction, protecting the defendant right to plead all defense including the objections now raised. Accordingly, Application No.2259 of 2021 is allowed. Consequently, the suit is dismissed as withdrawn with liberty to the plaintiff to initiate proceedings before any other forum having jurisdiction. No order as to costs. The other connected applications are closed.

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Sd./-G.J.J 06.07.2021

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//Certified to be true copy// Dated at Madras this the day of 2021.

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COURT OFFICER(O.S.)

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From 25th Day of September 2008 the Registry is issuing certified copies https://hcservices.ecourts.gov.in/hcservices/ of the Orders/Judgments/Decrees in this format.

M/s.Novex Communications Pvt. Ltd., v. Tech Mahindra Ltd.

Case brief

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What did the court decide?

M/s.Novex Communications Pvt. Ltd., v. Tech Mahindra Ltd.

Case brief

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