O.P Dwivedi, J.:— This order shall govern the disposal of IA No. 5186/2001 filed by the defendant under Order 7 Rule 10 and Order 7 Rule 11(b)(c) CPC seeking return of the plaint for being presented in the proper Court having territorial jurisdiction.
2. The plaintiffs are companies incorporated in USA and carrying on business of film production having copy rights in the films produced by them. They adopt a definite distribution strategy to release the film after completion in different stages. Generally the first stage entails release of the film in theatres and/or cinema halls. It is only after the film has run its course in the theaters and cinema halls that the film is released in other formats such as video, cable and satellite TV. Defendant is alleged to be a cable TV operator providing cable TV services almost all over India through its associates/subsidiary companies, agents, franchises and distributors. It is the case of the plaintiffs that their investigation has revealed a truly alarming situation wherein many new films of the plaintiff are being shown clandestinely all over India on cable network without authority whatsoever by procuring pirated copies. In para 10 of the plaint the plaintiff has given details of some of their films which have been shown in the defendant's network. It is alleged that unauthorised duplication and exhibition of cinematograph on the defendant's cable network is causing irreparable harm to the plaintiffs business. Even a single unauthorized release of a film on any one of the Defendant's networks is capable of causing irreparable injury and damage to the plaintiff. The combined claims of distribution network controlled by the defendant is one of the largest in Calcutta. One single telecast by the defendant and its operator is capable of reaching several lakhs of homes simultaneously. The potential for damage is immeasurable and irreparable because unauthorized exhibition of the films by the cable operators reduces the number of viewers in cinema halls and theaters. Defendant serve 75% cable market share in Calcutta providing cable signals to 216 franchisees, covering more than 2200 cable operators. Plaintiff contend that there exists no standard for ascertaining the actual damage caused by one single such invasion and in any case compensation in money would not afford appropriate relief. In para 30 of the plaint it is pleaded that films produced by the plaintiff are exhibited in theaters around Delhi on regular basis. Besides many plaintiffs also have offices in Delhi, while others have appointed distributors. It is pleaded that plaintiff No. 1 carries on business in Delhi through its local office at Plaza Theatre Building, Connaught Circus, New Delhi, thereby conferring jurisdiction on Delhi Courts. On these allegations, the plaintiffs have filed suit for permanent injunction restraining defendants from communicating to the public either by means of cable, wire or by wireless diffusion or, telecasting, broadcasting on their cable network or otherwise any cinematograph film the copyright in which vests with the plaintiffs. Other ancillary reliefs have also been claimed. After service of summons, the defendant had earlier filed an application IA. No. 7165/2000 under Order 7 Rule 11(a) CPC for rejection of plaint. But the said IA was got dismissed as withdrawn with liberty to file an appropriate application under Order 7, CPC. The defendant has now filed IA. 5186/2001 praying therein that plaint be returned for presentation to the proper court having territorial jurisdiction. It is contended that none of the plaintiffs reside or carry on business within the jurisdiction of Delhi Courts. The defendant admittedly carries on business in Calcutta and not in Delhi. Therefore, Delhi courts would not have jurisdiction to entertain suit. Other prayers made in this application were not pressed at the time of arguments.
3. I have heard learned counsel for the parties and perused the records.
4. For proper appreciation of the submissions made by the learned counsel for the parties in this regard, it is necessary to refer to section 62 of the Copyright Act, 1957, which reads as under:
62. Jurisdiction of Court over matters arising under this Chapter:—
(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copy right in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction.
(2) For the purpose of sub-section (1), a “District Court having jurisdiction shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.
5. Sh. Rajiv Nayar, learned Sr. Advocate, vehemently contended on behalf of the applicants that a bare perusal of memo of parties shows that none of the plaintiffs have their residence in Delhi nor they are carrying on business from Delhi and therefore Delhi Courts will have no territorial jurisdiction to entertain the suit even under section 62 of the Copyright Act. According to the learned Sr. Counsel a bald statement contained in para 30 of the plaint to the effect that plaintiff No. 1 carries on business in Delhi through its local office at Plaza theater Building, Connaught Circus, New Delhi is not sufficient to confer jurisdiction on the Delhi Courts. Reliance was placed on the decision in the case of Aarte Indiana v. P. Mittulaul Lalah & Sons, 2000 PTC 149. In that case an application for leave to sue under clause 14 of the Letters of Patent Act was filed before the Bombay High Court for permission to join various courses of action against same defendant. The contention of the plaintiff before the High Court was that under section 62(2) of the Copyright Act, the plaintiff could maintain the suit at a place where plaintiff actually and voluntarily resides or carries on business or personally works for gain and this would be sufficient to confer jurisdiction on the High Court of Bombay to entertain petition for leave to sue under clause 14 of the Letters Patent. The defendants in that case were carrying on business from Chennai and Kuwait where products were sold through defendant No. 2. Plaintiff's stand before Bombay High Court was that since the plaintiff has right to sue at Bombay Courts by virtue of section 62(2) of the Copyright Act he should be permitted to sue the defendant in respect of other cause of action also, even though such causes of action did not arise within, the jurisdiction of Bombay Courts. The leave under clause 14 and declined by the Bombay High Court on the ground that even though the factum of residence/business of plaintiff in Bombay may confer jurisdiction on Bombay Courts for violation of copy right under section 62(2) of the Copyright Act, yet clause 14 of the Letters Patent Act could not be invoked unless and until some part of cause of action has arisen in Bombay or the defendant had their residence/business within the jurisdiction of Bombay Courts. It was held that section 62(2) of the Copyright Act confers this jurisdiction by virtue of the said enactment and such special jurisdiction cannot be categorised as original civil jurisdiction of the Court and, therefore, clause 12 of the Letters of Patent Act will not be applicable so clause 14 of the Letters of Patent Act also cannot be invoked. This judgment does not in any way helps the defendant. The jurisdiction of the Bombay Court could be involved clauses 12 and 14 of the Letters Patent only if cause of action or a part thereof arose within the limits of Original Civil Jurisdiction of Bombay Courts. This judgment does not lay down that section 62(2) of the Copyright Act cannot be availed of until and unless some part of the cause of action has arisen within the territorial jurisdiction of the Court where action was brought. Therefore, this judgment is of no help to the defendant.
6. As already pointed out in para 30 of the plaint it is specifically pleaded that some of the plaintiffs have their office in Delhi. As specific instance it is averred that plaintiff No. 1 carries on business at Delhi through its local office at Plaza theater Building, Connaught Circus, New Delhi. This averment is sufficient to confer jurisdiction on the Delhi Courts under section 62(2) of Copyright Act. The contention of the learned counsel for the defendant that a bald assertion in this regard is not sufficient to confer jurisdiction on Delhi Courts cannot prevail in view of Division Bench judgment of this Court P.M Diesels Ltd. v. Patel Field Marshal Industries, 1998 PTC (18) (DB) 260, wherein it was held that at the stage of passing interim orders only the averments made in the plaint are to be seen. The jurisdiction of the Court does not depend upon the defence taken in written statement. To the same effect are the observations in various other decisions of this Court in Nirex Industries (P) Ltd. v. Man Chand Foot Wears Industries, 1984 PTC 97; Ruchi Pvt. Ltd. v. Indian Flame Enterprises, 2001 PTC 876 (Del) John Richard Brady v. Chemical Process Equipments P. Ltd., AIR 1987 Delhi 372 : PTC (Suppl) (1) 263 (Del). In the present case para 30 of the plaint contains specific averments to the effect that plaintiff No. 1 has its local office in Delhi at Plaza Theatre Building, Connaught Circus, New Delhi. Therefore, in view of the provision of section 62(2) of the Copyright Act, it cannot be said that the plaint does not contain necessary averments conferring jurisdiction on Delhi Courts thereby necessitating return of plaint for presentation to the proper court under O. 7 R. 10 CPC. In the case of Lok Nath Prasad Gupta v. Bijay Kumar Gupta, PTC (Supplement) (1) 134 Delhi, the facts were that para 13 of the plaint contained bald assertions to the effect that the defendant is selling its products within the territorial jurisdiction of this Court thereby conferring jurisdiction on Delhi Court under section 62(2) of the Copyright Act. This was held to be not sufficient to confer jurisdiction on Delhi Court under section 62(2) of the Copyright Act. In para 10 of the Judgment it was observed that “A bald assertion, as has been made in para 13 of the plaint referred to herein above, without giving further facts or particular is not enough to confer this court with a territorial jurisdiction over the suit.
7. The plaintiff does not allege having any shop, branch or office of his own in Delhi. The plaint also does not allege any instance of the defendant having sold the infringing goods in Delhi or having any office, branch or shop of his own in Delhi.” Clearly the observations contained in para 10 of the above said decision would not apply to the present case because as already stated in/the present case the plaintiff has pleaded in para 30 of the plaint that plaintiff No. 1 has its local office in Delhi.
8. Since the averments contained in the plaint disclose that Delhi Courts have territorial jurisdiction to try the suit under section 62(2) of Copyright Act and the suit is, prima facie, not barred by any law, the application under O. 7 R. 10 for return of plaint to proper court is liable to be rejected.
9. It is ordered accordingly.
S. No. 607/2002
10. List the matter on 24.9.2003