Music Choice India Pvt. Ltd. v. Phonographic Performance Ltd.

The plaintiff is a broadcaster of music inter alia on the television and operating through local operators of Satellite, cable and Internet platform. The defendant is a Collecting Society constituted under section 33(3) of the Copyright Act, 1957 (the Act) to perform the statutory duties and public functions essentially under section 31 of the Act. Section 31 runs thus:—

“31. Compulsory licence in works withheld from public.— (1) If at any time during the term of copyright in any Indian work which has been published or performed in public, a complaint is made to the Copyright Board that the owner of copyright in the work—

(a) has refused to republish or allow the re-publication of the work or has refused to allow the performance in public of the work, and by reason of such refusal the work is withheld from the public; or

(b) has refused to allow communication to the public by [broadcast], of such work or in the case of a [sound recording] the work recorded in such [sound recording], on terms which the complaint considers reasonable.

the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the public by [broadcast], as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine; and thereupon the Registrar of Copyrights shall grant the licence to the complainant in accordance with the directions of Copyright Board, on payment of such fee as may be prescribed.

Explanation,— In this sub-section, the expression “Indian work” includes—

(i) an artistic work, the author of which is a citizen of India; and

(ii) a cinematograph film or a [sound recording] made or manufactured in India.

(2) Where two or more persons have made a complaint under subsection (1), the licence shall be granted to the complainant who in the opinion of the Copyright Board would best serve the interests of the general public.”

2. The plaintiff sought certain Government clearances and licences to broadcast music. Thereupon the plaintiff sought a licence from the owner of the Copyright in sound recordings to broadcast their music. The defendant is the assignee of such rights of several owners who are the record publishing companies. The plaintiff has, therefore, sought licence from the defendant to allow the plaintiff to broadcast their sound records. The plaintiff's offer was made on certain terms (as to payment of money for broadcasting those sound records) which the plaintiff considered reasonable. The defendant has not accepted that offer. It is the plaintiff's case that the defendant has demanded an unreasonable royalty from the broadcasters, such as the plaintiff, compelling them to approach the Copyright Board and the Civil Court. It is the plaintiff's case that the royalty claimed by the defendant is excessive and arbitrary which the defendant, as a creature of the Statute (the Act) cannot do.

3. It is the plaintiff's case that the purpose and object of the aforesaid statutory provision is that the owner of the Copyright or his assignee cannot refuse to allow its communication to the public by broadcast and must allow it on reasonable terms. It is the contention on behalf of the plaintiff that those reasonable terms are essentially what the plaintiff considers reasonable and not what the defendant might deem reasonable.

4. It is however clarified by Mr. Dwarkadas on behalf of the plaintiff that the plaintiff has not sought any order and direction from this Court as to the extent of the royalty to be paid or the rate of the royalty to be fixed by this Court, which is conceded to be in the exclusive jurisdiction of the Copyright Board under the aforesaid provision. Hence, the plaintiff's suit is for an order and declaration that the plaintiff is entitled to a licence to broadcast the present and future sound recordings of the defendant on payment to the defendant of such royalty and compensation subject to the terms and conditions determined by the Copyright Board on the plaintiff's application already filed on 4th July 2007 for compulsory licence under section 31(1)(b) of the Act.

5. The plaintiff's suit is also for an injunction against the defendant restraining them from interfering with the plaintiff's broadcast of the sound recordings of the defendant upon the plaintiff paying the defendant the royalty or compensation fixed by the Copyright Board and upon the terms and conditions determined by the Board on the aforesaid application of the plaintiff.

6. It is the defendant's case that only the Copyright Board can determine the amount of reasonable royalty or compensation, if it is not agreed between the parties upon following the procedure laid down in section 31(1)(b) of the Act. The defendant, therefore, contends that the plaintiff's suit for the aforesaid declaration and injunction is not maintainable in a Civil Court, as falling outside the purview of section 9 of the Civil Procedure Code. The defendant has filed its written statement inter alia in that behalf. The issue relating to the inherent jurisdiction of the Civil Court is required to be determined under the provisions of Order XIV, Rule 2 of the Civil Procedure Code. The preliminary issue has been framed. The plaintiff desires its amendment. It is, therefore, reframed as follows:—

Whether this Court has inherent jurisdiction to try the Suit.

7. One mode of reading of plaint is to see the plaintiff's position as the Broadcaster and the rights which the plaintiff claims under the Act for the reliefs claimed in the suit to grant the plaintiff the relief claimed at the first hearing of the suit itself upon the premise that the plaintiff's prayer for a declaration as to its entitlement to the licence is itself subject to the decision of the Copyright Board, which fact, in essence, is not disputed. Mr. Dwarkadas laid much emphasis upon the fact that the plaintiff has not sought the relief of calling upon this Civil Court to grant the plaintiff, the licence to republish or broadcast the sound recordings assigned to the defendant or to decide the extent of the fee as compensation, or royalty payable therefor. Hence, contends Mr. Dwarkadas, the Court's inherent jurisdiction is not barred and the jurisdiction of the Copyright Board under section 31(1)(b) is preserved. However, this argument misses the intrinsic relief that the plaintiff seeks, pending the decision of the Copyright Board since the decree, if granted, in terms of the prayer (a) of the suit would be to allow the plaintiff a licence to broadcast either without fixation of the royalty and compensation on merits upon the enquiry required to be made by the Copyright Board under the aforesaid section or upon the royalty as fixed by the plaintiff itself, which has not been accepted by the defendant. The plaintiff has obtained an ad-interim order to broadcast the sound recordings assigned to the defendant pending the suit without determination of the merits of its offer. That order would in terms be extended pending the decision of the Copyright Board. That order would therefore, allow the plaintiff to broadcast those sound recordings before any adjudication of the plaintiff's claim on merits by the Copyright Board upon following the procedure established by law i.e, under the Act. In fact that dubious end has been achieved. Merits of the plaintiff's claim is not seen. Yet an injunction has ensued pending the interim relief and the consideration of the inherent jurisdiction of this Court. Besides, no irreparable loss or injury can be stated to be caused to the plaintiff for not being allowed to broadcast the defendant's sound recordings before the plaintiff makes out such prima facie case of reasonable compensation offered by it on merits. That would be much like allowing a party to commence business without obtaining a licence because he has applied for one. The mischief is, therefore, translucent.

8. It is clear from the aforesaid section that when any offer inter alia of a Broadcaster is refused by any owner of a Copyright or his assignee for broadcasting any sound recording which is meant to be communicated to the public on the terms which the Broadcaster considers reasonable, a complaint to the Copyright Board is statutorily required to be made. That complaint has to be enquired into and examined by the Copyright Board. The Copyright Board is required to follow the procedure set out in that provision. He has to give the owner of the Copyright a reasonable opportunity of being heard. He has to hold an enquiry as he may deem necessary. He has to satisfy himself that the grounds of the refusal of the owner of the Copyright or his assignee are not reasonable, and if and when that procedure is followed he has to direct the Registrar of Copyrights to grant to the complainant the licence to broadcast. This grant would be on terms and conditions determined by the Copyright Board for payment of royalty and compensation and for doing such other acts and things as the Board may determine. The section, therefore, is a complete Code. It lays down the entire procedure for determining the extent of the royalty. The Copyright Board may or may not accept the terms of the complainant as reasonable. It may impose further terms and conditions. It may direct the plaintiff/Complainant to make such payment of fee as royalty or compensation, as it may consider reasonable. That may be equal to, more or less than what the plaintiff/Complainant may have offered the owners of the Copyright or his assignee.

9. The plaintiff has made its application under the aforesaid provision on 4th July 2007. The plaintiff has filed this Suit immediately thereafter on 19th July 2007.

10. The main contention of the plaintiff is that the Copyright Board does not meet and carry on its adjudicatory proceedings often. It is the plaintiff's case that the Copyright Board “meets only once or twice in a year.” It is the plaintiff's grievance that, therefore, its application is not likely to be decided for one or two years. It is 1½ years since the filing of the suit itself.

11. The plaintiff, therefore, has sought relief from two Forums - the Copyright Board and the Civil Court. The relief in this suit is the otherwise innocuous relief of being granted a declaration that the plaintiff would have a licence to broadcast subject to the terms and conditions determined by the Copyright Board, which is the statutory provision itself, clocked upon the plaintiff's case of obtaining interim relief in the Civil Court and the final relief in the Statutory Forum. The purpose of the mischief is apparent. Upon getting the right to broadcast on the terms offered by the plaintiff alone, notwithstanding the defendant's non-acceptance or refusal of such offer, the plaintiff would broadcast before the procedure established by law is effectuated. Hence, the plaintiff would have circumvented with law through a more malleable legal procedure. On the plaintiff's own showing it would be years before the enquiry specifically contemplated in the aforesaid section comes to a close with the statutory Appeals and further Appeals therefrom being availed of by either of the parties. The procedure established by law would thus be abused. It will have to be seen whether this Court would have jurisdiction to lend the plaintiff its hand in such an exercise or whether this Court's civil jurisdiction for determination of the disputes with regard to declaratory and injunctive relief, otherwise in the domain of another Statutory Forum, can be exercised to give relief of the nature prayed for in this Suit.

12. The Civil Court has jurisdiction to try all civil suits unless barred under section 9 of the Civil Procedure Code, section 9 runs thus:—

9. Courts to try all civil suits unless barred.— The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

It will therefore, have to be seen whether the Court's civil jurisdiction is impliedly barred by section 31(1)(b) of the Act.

13. Mr. Dwarkadas has relied upon the ad-interim order of injunction dated 28th June, 2001 passed in a similar suit being Suit No. 2138/2001 in the Notice of Motion taken out in that Suit being Notice of Motion No. 1440/2001 on the main contention that the plaintiff in that suit had also similarly applied for a licence of the defendants herein at the rate offered by the plaintiff which was not accepted by the defendant on the premise that the Copyright Board met only once or twice a year and the plaintiff would not be able to start their radio station to broadcast the sound recordings of the defendant since they would not be able to get their application decided expeditiously. It is gratifying to note that there is one litigant who considers that the Civil Court would really decide his dispute expeditiously or at least more expeditiously than some another forum - specifically created for only such matters. Such forums are created to take a part of the workload of the Civil Courts which are unable to decide disputes in pending matters expeditiously. In the above order section 31 of the Act came to be considered. The right of the public to get a license on reasonable terms for being allowed the communication of sound recordings by broadcast by various means, which is an exception to the voluntary licence granted by a owner of a Copyright to another in that behalf, came to be considered. That was to be on reasonable terms since the right of the public to avail itself of such communication was the object of that statutory provision itself. Hence, it came to be observed that the rate which the plaintiff, as the Broadcaster, was to be charged could not be arbitrary or unreasonable since the defendant being creature of that Statute was to perform statutory duties and public functions in which, as a rule of administrative law, arbitrariness should be eliminated. It also came to be observed that the interest of the defendants was to be secured - The defendant was the assignee of the owner of the Copyright and no term can be termed reasonable if it does not heed the rights of the owner of the Copyright himself/herself. Consequently in that ad-interim order a rate per hour of recorded music came to be fixed. A further advance payment of a fixed sum payable by the Broadcaster to be adjusted at the end of each month also came to be fixed. Upon those terms the plaintiff in that suit was allowed to start FM radio station in one City. A Copyright Board was directed to be moved at an early date so that the dispute could be resolved in accordance with the Act. The Court expressed its hope and trust that if such an application was moved, the Board would consider it sympathetically.

The plaintiff has already moved the Copyright Board. Within a fortnight of its application the plaintiff has moved the Civil Court. The plaintiff in that suit was directed to move the Copyright Board so that the dispute could be resolved. In this case, half the plaintiff's battle is already won. The Copyright Board, already moved, would consider the plaintiff's application. It is not known whether the plaintiff has sought an early date before the Board or whether the Board has refused any such application of the plaintiff. The aforesaid ad-interim order has not considered the inherent jurisdiction of the Court or an implied bar to its civil jurisdiction.

14. Mr. Dwarkadas relied upon the Division Bench judgment of this Court dated 13th April, 2004 [since reported in 2004 (5) Mh.L.J 375] considering three appeals under section 72 of the Act from the order of the Copyright Board, one being the case of Phonographic Performance Ltd. v. Music Broadcast Pvt. Ltd. In that case also the ambit of section 31 of the Act has been considered. section 31(1)(b) is observed to be in the nature of a proviso or an exception to section 31(1)(a). We are concerned with section 31(1)(b) alone, which deals with broadcast of sound recordings. This legal position is not in dispute. This Court is not even called upon to adjudicate it. Since only the preliminary issue of jurisdiction is to be decided, the only relevant part of the aforesaid judgment is the observation that the plaintiff must first approach the Holder of the Copyright to rebroadcast the work and offer terms which he considers reasonable. If such permission is refused by the Copyright Holder (or his assignee) the plaintiff can approach the Copyright Board. The Copyright Board then holds an enquiry. The enquiry is to find out the grounds of refusal i.e, whether those grounds are reasonable or not, the Copyright Board would grant a licence to the Complainant, if it finds the reasons for refusal to be unreasonable. It is, therefore, held in paragraph 8 of the judgment that the question of determination of compensation is with the Copyright Board. The parties to the suit are not at dispute with this legal position also. A further observation in this judgment whilst considering section 31(2) of the Act is that the Board can choose one or more amongst the Complainants who have applied for licence for broadcasting the sound recordings and that the Board is not required to choose only one such Complainant/Licencee. It is observed that choosing only one complainant would militate against the principles incorporated in section 31(1)(b) because the object of that section is to grant licence to every Broadcaster to broadcast the work, if all those persons are willing to offer reasonable terms for such broadcasting. In fact that judgment is in line with the judgment of the Supreme Court in the case of Entertainment Network (India) Ltd. v. Super Cassette Industries, MIPR 2008 (2) 129, in which the Supreme Court has held that the provisions of section 31(2) are required to be read down in view of the object of section 31(1)(b) and which shall be considered presently. The parties are not at dispute with regard to this legal position also. It is the observation following the ambit of section 31(2) of the Act laid down in paragraph 9 of the aforesaid judgment of the Division Bench of this Court that is material in that case. The said observation runs thus:—

“There is no question of the principle choosing one or two persons amongst the complainants who have applied for compulsory licence to broadcast once the Copyright Board finds that the terms offered were reasonable and that the complainant is willing to pay the compensation determined by the Copyright Board and it is also willing to abide by other terms and conditions which have been imposed.”

Hence, that judgment holds that the right, if any, would accrue to all the persons who have sought a licence, which has been refused by the Copyright Holder, and who have filed complaints only upon the Copyright Board adjudicating upon the terms and finding them reasonable.

The judgment does not hold that pending such an adjudication the Civil Court can allow the plaintiff, such as in this case, to be a Licencee for broadcasting the sound recordings of the Copyright Holder or his Assignee without payment of, what is adjudicated as reasonable fee by way of compensation or royalty therefor.

15. Mr. Dwarkadas relied upon the Supreme Court judgment in the case of Entertainment Network (India) Pvt. Ltd. (supra). That judgment has also likewise considered the allowance for broadcast upon the right of the public to receive such communication as an example of an exception to the rights of a Copyright Holder, by even more than one such application under the Act. A reading of the judgment has not drawn me to any corner where the Court has considered the Civil Court's jurisdiction to grant any reliefs in any disputes with regard to the payment of royalty for availing of the exemption to apply to the Copyright Board by way of licence from the Copyright Holder for the works which cannot be withheld from the Court such as the broadcast of sound recordings. Nay, the judgment has specifically laid down the procedure to be followed under section 31(1)(b) by the Copyright Board including the holding of proper enquiry, the reasonable opportunity of being heard to the Copyright owner and to grant compensation only on reasonable basis to be determined and subject to compliance of other conditions. In fact the ratio decidendi of the judgment is that upon the refusal of a reasonable offer for obtaining a licence to broadcast the sound recording, a complaint to the Board for issue of compulsory licence is maintainable “as it has jurisdiction to deal with the same.” Consequently the witnesses who were to present oral evidence, (which was earlier declined by the Copyright Board), were directed to appear before the Board and their evidence was directed to be considered by the Board. The concept of compulsory licencing, as against the general principles governing Copyrights as artistic literature and musical works which are owned by the author as the fruits of his labour and thus considered to be his property, was considered, it being a statutory exception in public interest. Consequently clauses (a) and (b) of section 31 were considered separately. It was held that they should be disjunctive and not conjunctive. The concept of refusal by the owner of copyright and its ambit was laid down. The mechanism provided to approach the Board under section 31(1)(b) and its purpose was also considered all of which do not come up for consideration in the issue before this Court. Similarly, as aforesaid, in the case of the Division Bench of this Court (supra) the ambit of section 31(2) for grant of the licence to more than one individual and thus reading down section 31(2) and its application to section 31(1)(a) and under 31(1)(b) came to be considered. The conclusion set out in that judgment is the climax. It runs thus:—

“Conclusion

105. As it was a case of abuse, the Board had the jurisdiction to entertain any application for grant of compulsory licence.”

That observation in fact shows the implied bar of the jurisdiction of Civil Courts in such cases.

16. It would be worth undertaking the exercise of seeing how the Civil Court's jurisdiction is impliedly barred in case of certain other Statutes. Mr. Jamsandekar has brought to my notice a number of such judgments which would be the culmination of a good deal of effort in that direction.

17. In the case of The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay, (1976) 1 SCC 496 in which the ouster of Civil Court's jurisdiction where a Statute creates rights and liabilities and provides remedy for enforcement were considered. That case is related to labour disputes. The Statute which created the rights and liabilities and provided a remedy for their enforcement was under the Industrial Disputes Act, 1947, the relevant provisions of which were sections 2(k) and 2A r.w section 10 of the Act. Paragraph 9 of that judgment lays down the parameters to be considered for seeing whether the Civil Court's jurisdiction is impliedly barred, which runs thus:—

9. It would thus be seen that through the intervention of the appropriate government, of course not directly, a very extensive machinery has been provided for settlement and adjudication of industrial disputes. But since an individual aggrieved cannot approach the Tribunal or the Labour Court directly for the redress of his grievance without the intervention of the Government, it is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of the civil Court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of section 2(k) or within the meaning of section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the civil Court. It is plain that he can't have both. He has to choose the one or the other. But we shall presently show that the civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act. In that event Civil Court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged breach of contract if the contract is one which is recognized by and enforceable under the Act alone.”

(emphasis supplied)

In this case the machinery for adjudication of the complaint of the plaintiff is provided under section 31(1)(b). The plaintiff can approach, and has in fact approached, the Copyright Board for redressal of his grievance. The rights under the Act can be enforced before the Copyright Board by following the procedure prescribed by that law. In fact the said section sets out an entire code for redressal of such grievance. Hence, the Civil Court will not only have no jurisdiction to grant the final relief in the Suit by trying it, but cannot also grant any injunction to prevent interference of the plaintiff's broadcast (which is a threatened action) under the agreement or the licence which becomes enforceable under the Copyright Act itself.

18. Similarly in the case of Raja Ram Kumar Bhargava v. Union of India, (1988) 1 SCC 681 : AIR 1988 SC 752, which is a case for considering the assessment made by the I.T.O under section 297(2)(i) of the Income Tax Act, the principle of considering the implied bar of Civil Court's jurisdiction has been laid down in paragraph 10 thus:—

“Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common-law, is created by a statute and that statute itself provided a machinery for the enforcement of the right both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil Courts' jurisdiction is impliedly barred.”

In this case, the rights of the broadcasters as claimed by the plaintiff were not pre-existing in Common Law. These rights are for the first time, created under section 31(1)(b) of the Act. The Act prescribes a machinery for the enforcement of these newly created rights. The Civil Courts jurisdiction to grant any declaration or injunction, subject to the statutory determination is also barred.

19. In the case of Shiv Kumar Chadha v. Municipal Corpn. of Delhi, (1993) 3 SCC 161, the ouster of the Civil Court's jurisdiction, if at all, under the Delhi Municipal Corporation Act, 1957 was considered. The provisions of that Act did not create any right or liability or provide any remedy for enforcement of any such right or liability. The common law right to erect and construct buildings which prevailed since times immemorial, but which only required legislation for its regularisation and restrictions consequent upon modernization and urbanization and development, came to be considered. It was held that under that Act no new rights were created. Though the Officers under the Act were given certain powers to determine certain applications, the Civil Court could examine whether the dispute fell within the ambit of such provisions of the Act. When it was contended that the building in question was not within the limits of the Corporation or constructions were made prior to the Act coming into force or when the basic procedural requirements had not been followed or the provisions of the Act were not applicable, the Civil Court could exercise its jurisdiction. The law in that regard has been laid down thus:—

“Where statutory enactments only create rights or liabilities without providing forums for remedies, any person having a grievance that he has been wronged or his right is being affected, can approach the ordinary civil Court on the principle of law that where there is a right there is a remedy - ubi jus ibi remedium. Where a particular Act creates a right or liability and also provides a forum for enforcement of such right or for protection from enforcement of a liability without any authority in law, the ouster of Court's jurisdiction can be upheld on the finding that the rights or liabilities in question have been created by the Act without touching a pre-existing common law right and the remedy provided therein is adequate and complete. But the situation will be different where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the Court so far remedy against the orders passed under such statute is concerned.”

In this case the Act creates a statutory right and remedy under section 31(1)(b) of the Act. It provides forum for enforcement of the remedy too. The plaintiff has availed of that remedy. The plaintiff has also chosen another forum with the same remedy. Thus the remedy in the Civil Courts is barred to the plaintiff.

20. A further judgment in the case of Anwar v. First Additional District Judge, Bulandshahr, (1986) 4 SCC 21 relied upon by Mr. Jamsandekar is a case much like the present case and the relief claimed. In that case the Civil Court's jurisdiction was sought to be exercised much as in this case for grant of an injunction restraining the authority under the statute from proceeding with its function. The statute granting jurisdiction was the Motor Vehicles Act, 1939. The relevant provision was section 68(d) which granted exclusive jurisdiction to the Hearing Authority to decide the claim under the Act for issue of permits to State Carriages on certain routes. The suit sought an injunction restraining the authority from proceeding with the hearing. It was held that the jurisdiction granted to the Hearing Authority impliedly barred the Civil Court's jurisdiction. It was held that Chapter IVA of the Motor Vehicles Act create a special machinery for approving and modifying schemes for exclusive operation of Road Transport Services of the State Transport undertaking and injunction restraining the hearing is not open to any party. The objections relating to the merits of the claim can be raised only before the Hearing Authority. It was held that only in the Writ Jurisdiction can the Court examine where the provisions of the statute have not been complied or where the Tribunal has not acted in conformity with judicial procedure. In fact it was observed that such a suit should have been rejected at the threshold under Order VII, Rule 11 of the Civil Procedure Code on the ground that it did not disclose any cause of action.

21. The question that arises in this Suit is what would the plaintiff seek to prove by evidence, oral or documentary at the final hearing, if this suit came to be tried by this Court. It is an admitted position that the plaintiff is a Broadcaster of sound recordings. The defendant is the Assignee of the copyright in sound recordings. The plaintiff has to make offer to the defendant on terms, it considers reasonable. The defendant would accept or reject the offer. If the offer is rejected and the plaintiff is aggrieved, the plaintiff would file a complaint with the Copyright Board (which it has). The Copyright Board would give notice to the defendant. The Board hold enquiry, satisfy itself about the grounds of refusal and grant the licence. The declaration sought by the plaintiff is that the plaintiff is entitled to the licence subject to terms of the Board. The defendant does not challenge this position. Hence, if the suit is decreed, it can only be to allow the plaintiff the licence subject to the terms fixed by the parties. The seminal question for determination is - what would be the terms? The terms cannot be decided by this Court. The plaintiff has not even called upon the Court to decide the terms. The plaintiff has essentially sought to restrain the defendant from interfering with the plaintiff's broadcast even prior to such determination under prayer (b) of the plaint. The underlined mischief is essentially in prayer (b). The prayer of declaration becomes innocuous upon the admitted position between the parties. The remedy of injunction cannot be granted to the plaintiff by the Civil Court pending the plaintiff's application before the Copyright Board, the remedy of declaration notwithstanding. It is that prayer which the defendant opposes. The suit to try that prayer is as outlandish as it is ill-conceived for want of the Court's inherent jurisdiction. Hence, the preliminary issue is required to be answered in the negative. This Court does not have the inherent jurisdiction to try the Suit, it being impliedly barred by section 31(1)(b) of the Copyright Act, it having to be exclusively granted by the Copyright Board, and that position having been expressly admitted by the plaintiff by virtue of its own application before the Copyright Board dated 4th July 2007 itself.

22. There is nothing in the Act to prevent the Copyright Board from passing any interim order of determination of reasonable fee by way of royalty or compensation payable by the plaintiff, if an application in that behalf is made and a prima facie case is made out.

23. It may be mentioned that even where there was no specific provision in a legislation granting jurisdiction to a Tribunal of passing interim relief, it has been settled position in law that interim relief is passed in aid of the final relief as an inherent power of that Court or Tribunal. In the case of The Management Hotel Imperial, New Delhi v. Hotel Workers' Union, AIR 1959 SC 1342 it was held that under section 10(4) of the Industrial Disputes Act the Industrial Tribunal has power to grant interim relief where it is admissible, as a matter incidental to the main question referred to the Tribunal without itself being referred in express term. Hence, it was held that even where the question of compensation was referred to a Tribunal, interim relief could be granted by the Tribunal on merits. The plaintiff's suit is in essence an action for obtaining interim relief from the Civil Court pending adjudication of the dispute by the Copyright Board. That constitutes an abuse of the legal process laid down under the Act.

24. Hence the following order:—

1. This Court does not have jurisdiction to try this Suit.

2. The Suit is dismissed for want of this Court's inherent jurisdiction.

3. The plaintiff shall proceed before the Copyright Board.

4. The plaintiff may make such application as it deems fit for expedition or for grant of interim reliefs in its application before the Board.

5. The Board may consider such application, if made, on merits.

6. The Ad-interim order already passed in this Suit shall continue for 4 weeks.

Order accordingly.