Ashok Bhushan, J.— This appeal has been filed by the defendant against the judgment of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh dated 11-3-2016 2016 SCC OnLine Hyd 702 allowing the plaintiffs' appeal.
2. Brief facts of the case for deciding this appeal are : the parties shall be referred to as described in the suit. The plaintiffs have been carrying on business of producing, distributing and exhibiting cinematographic films. On a request of 4th defendant, M/s N.S. Films, the plaintiffs on 23-12-1994 assigned to four persons nominated by the 4th defendant satellite broadcasting rights of 16 Hindi films for a period of 9 years. The assignments were made by six assignment deeds all dated 23-12-1994.
3. In the year 1995, the plaintiffs came to know about the pendency of the Small Causes suit filed in Bombay, Small Causes Suit No. 281 of 1995 by 3rd defendant, M/s Asia Vision against the 4th defendant seeking for relief of declaration and injunction in respect of above 16 films, on the basis of certain documents purporting to be a deed of assignment dated 7-10-1994 and declaration dated 15-10-1994 allegedly assigned by D. Suresh Babu assigning satellite and Doordarshan rights in favour of the 4th defendant. The suit at Bombay was filed on the basis of notarised of the said forged documents.
4. Shri D. Ramesh Babu, Director of the first plaintiff lodged a complaint with Police Station Jubilee Hills, Hyderabad complaining about the said forgery. Defendant 3 had also lodged complaint against the 4th defendant and the plaintiffs at Mumbai. Several criminal proceedings were filed by the plaintiffs as well as by Defendants 3 to 8. However, suit filed by the other parties came to be dismissed for default and controversy was subsided.
5. The plaintiffs issued a public notice in Film Information Magazine on 27-9-2003 with respect to the abovesaid 16 Hindi films. A legal notice from the first defendant on 14-10-2003 in reply to the notice of the plaintiffs was received where Defendant 1 claimed that they have acquired satellite broadcasting, Pay TV and Cable TV rights of all above 16 Hindi films from Defendant 2, M/s B.N.U. & Co. vide deed of assignment dated 21-3-1997 for a period of 99 years and that, M/s B.N.U. & Co. had in turn acquired the said rights from M/s Asia Vision, Defendant 3, vide agreement dated 16-3-1997. The first defendant called upon the plaintiffs to withdraw the said public notice. The plaintiffs sent reply dated 17-10-2003 refuting the facts in the notice of the first defendant. The plaintiffs filed Original Suit No. 392 of 2003 on 11-11-2003 before the Chief Judge, City Civil Courts, Hyderabad, for declaration that Defendants 1 to 4 have no manner of right, title and interest in the copyright in respect of the scheduled films, to pass a decree of perpetual injunction against Defendants 1 to 4.
6. The first defendant filed written statement. It was pleaded that D. Suresh Babu representing the Plaintiffs 1, 3 and 4 assigned T.V. Doordarshan and world satellite rights in the said 16 films in favour of the 4th defendant on 10-10-1994 for a valuable consideration of Rs 55,00,000. The 6 assignment deeds dated 23-12-1994 was alleged to be manufactured for the purpose of claiming rights in the suit scheduled films. Although, the above the plaintiffs have already been divested of their rights by assignment dated 10-10-1994 with the 4th defendant, under deed of assignment dated 17-10-1994, the 4th defendant had assigned the rights to the third defendant and the third defendant in turn assigned the rights to second defendant by deed of assignment dated 16-3-1997. The first defendant claims deed of assignment from second defendant by assignment deed dated 21-3-1997. The first defendant pleaded that from 21-3-1997 it has been exercising the satellite broadcasting rights acquired under the deed of assignment and the suit scheduled films have been telecast as many as 223 times on various occasions since August 1997 till date. The allegations made in the plaint were denied. Defendant 2 adopted the written statement filed by Defendant 3. Defendant 3 also filed a written statement which was in the line of the written statement filed by Defendant 1. Reference of Suits Nos. 221 to 225 of 1995 filed by Defendants 4 to 8 was also made which were dismissed on 31-8-2000, Defendant 3 claimed to be bona fide purchasers of suit scheduled 16 films for a valuable consideration; with regard to Small Cause Suits Nos. 281 of 1995 filed by Defendant 3 against Defendant 4 through Mrs Nalini Shanker it was stated that it was not necessary to pursue as Small Cause Court, Mumbai was not having jurisdiction. It was pleaded that the plaintiffs were very well aware as back as in 1994 of the rights acquired from the plaintiffs on 10-10-1994.
7. The trial court framed the following 10 issues:
“(1) Whether the suit is barred by limitation?
(2) Whether the suit is barred by res judicata in view of decree in OSs Nos. 18 to 21 of 1996?
(3) Whether the plaintiffs acquiesced the infringement of copyright of the scheduled films?
(4) Whether the claim of Defendant 1 over the plaint scheduled films is true?
(5) Whether the suit transactions, as alleged by the plaintiffs are true, valid and binding on the defendants?
(6) Whether the plaintiffs are entitled to the declaration as prayed for?
(7) Whether the plaintiffs are entitled to the perpetual injunction as prayed for?
(8) Whether the plaintiffs are entitled to the delivery of tapes, etc. as prayed for?
(9) Whether the plaintiffs are entitled to the damages, as prayed for?
(10) To what relief?”
8. On Issue 1, the trial court held that cause of action for filing the suit arose in the year 1995 itself when the plaintiff got knowledge of the claims of the first defendant over the given films and they have chosen to give report to the police in respect of the agreement dated 10-10-1994. The trial court held that they slept over their rights for eight long years, hence, the suit claim is hopelessly barred by limitation.
9. On Issue 2, trial court held that the suit is not barred by principle of res judicata. Issues 4 to 9 were answered in favour of the plaintiffs; it was held that the plaintiffs' claim over the suit scheduled films is proved. The agreement dated 23-12-1994 was held to be proved whereas the defendants have failed to prove the assignment dated 10-10-1994. The transactions alleged to have been entered into between the 4th defendant and 3rd defendant in respect of 16 films was held not to be proved. Issue 3 was also decided in favour of the plaintiffs. The trial court, however, in view of finding on Issue 1 that suit is barred by limitation dismissed the suit by its judgment dated 9-3-2011.
10. The plaintiffs, aggrieved by the judgment of the trial court, filed appeal before the High Court which appeal has been allowed by the High Court by the impugned judgment dated 11-3-2016 2016 SCC OnLine Hyd 702. The High Court noticed in the judgment that the only point for determination in the appeal is:“Whether the finding of the trial court that the suit was barred by limitation is factually and legally correct?” The High Court after considering the submissions of the learned counsel of the parties held that the suit filed by the plaintiffs was not barred by limitation.
11. The High Court held that in the year 1995 Defendants 1 and 2 were not in the scene and so the question of the plaintiffs taking action against them does not arise. It held that to the plaintiffs', cause of action arose for the first time when Defendant 1 issued notice dated 14-10-2003 and the suit having filed immediately thereafter was well within time. The High Court allowed the appeal and decreed the suit in favour of the plaintiffs. Defendant 1 aggrieved by the judgment of the High Court has come up in this appeal.
12. Shri Sridhar Potaraju, learned counsel for the appellant submits that the plaintiffs had knowledge of violation of their rights qua scheduled 16 films in the year 1995. It is submitted that Defendant 3 has filed SC Suit No. 281 of 1995 in Mumbai for declaration and injunction against Defendant 4 where reference of agreement dated 10-10-1994 and 17-10-1994 was made. PW 1, D. Suresh Babu who appeared as witness in the present suit admitted having knowledge of the suit filed in the Bombay Court. It is further submitted that Defendants 4 to 8 had filed OS Nos. 221 to 225 of 1995 for declaration and injunction against Plaintiff 1 and Defendants 3 and 4 before the City Civil Court, Hyderabad which suit was subsequently dismissed. Plaintiffs 1 to 4 have also filed OS No. 16 of 1996 in the Court of Chief Judge, City Civil Court, Hyderabad against Defendants 3, 4 and 8 qua 3 films. The above facts clearly indicate that they had full knowledge of infringement of their right and ought to have filed suit within the period of limitation. He submits that Article 58 of the Limitation Act, 1963 provides that suit can be filed within three years from the date when the cause of action first arose. He further contends that plaintiff being aware of the claim of the defendants as reflected in various litigations and having not taken any action acquiesced to the claim of the defendants, hence, the suit is liable to be dismissed on the principle of acquiescence.
13. The learned counsel for the respondents, Shri T. Raghuram refuting the submissions of the appellants contends that the High Court after considering the materials on record has rightly come to the conclusion that the suit was not barred by time. It is submitted that the alleged assignments dated 10-10-1994 and 17-10-1994 which are foundation of the case of the defendants having not been proved in the suit and the trial court itself has found that the said assignments have not been proved, there was no cause of action to the plaintiff to file suit in the year 1995. It is submitted that assignment dated 23-12-1994 by the plaintiff in favour of Defendant 4 has been proved by which the plaintiff has assigned broadcasting rights to Defendants 5 to 9 for a period of 9 years. The plaintiff was not concerned about the telecasting of films during the said period. It is submitted that cause of action arose to the plaintiff when they published notice in Film Information Magazine with regard to prosecute their right to which reply was given on 27-9-2003. It is submitted that cause of action arose when reply dated 14-10-2003 was received from Defendant 1 which claimed rights to the aforesaid 16 films. It is submitted that the suit of the plaintiffs was well within time and the High Court has rightly come to the said conclusion.
14. We have heard the learned counsel for the parties and perused the records.
15. The plaintiffs' case in the plaint was that the plaintiffs have assigned telecasting right of 16 scheduled films by 6 assignment deeds dated 23-12-1994 for a period of 9 years in favour of Defendants 5 to 8 as requested by Defendant 4. The trial court in its judgment while considering Issues 4 to 9 has specifically considered the assignment deed dated 23-12-1994. While answering Issues 4 to 9 especially assignment deed dated 23-12-1994 by the plaintiff in favour of Defendant 5 to 8 at the instance of Defendant 4, the trial court recorded the following finding:
“It is an undisputed fact that originally copyright holders in respect of suit scheduled films have been the plaintiffs' firms only. DW 1 also accepted the same. It is the contention of the plaintiffs that Sr. D. Rama Naidu, representing the plaintiffs' firm has entered into assigned agreement with fourth defendant and assigned satellite and broadcasting rights over the suit scheduled films for a period of nine years from 23-12-1994 to the nominees of fourth defendant i.e. Defendant 5 to 8 for valuable consideration received by the plaintiffs from fourth defendant and acknowledging said assignment and receipt of the consideration vide letter dated 23-12-1994. Exts. A-7 to A-12 are assignment agreements pertaining to Defendants 5 to 8. Defendants 4, 5, 6 and 8 have not chosen to contest the suit by filing written statement, though they appeared before the court through their respective advocates. They have not even cross-examined the witnesses examined for plaintiff and the first defendant and they have not adduced any evidence either. Thus, it is to be taken that, they are not actually disputing with the claims of the plaintiffs. By examining PW 1 before the court and by producing Exts. A-7 to A-12, the plaintiffs could establish their claims in respect of assignment agreement entered into by the plaintiffs with fourth defendant and their assignment rights over the suit scheduled films and also expiry of the period of said assignment prior to the date of filing of this suit.”
16. When the plaintiffs assigned their rights to Defendants 5 to 8 on the request of Defendant 4 for a period of 9 years, the plaintiffs having parted with their satellite rights could not have claimed any right for telecasting during the aforesaid period of 9 years. Inter se dispute between Defendants 4 and 3 which begun with filing suit in Mumbai could not have been any cause of action for the plaintiffs to file a suit claiming telecasting rights for themselves. Furthermore, it was the case of Defendant 3 itself that dispute between Defendants 3 and 4 subsided when the suit filed by Defendant 3 was returned in the year 1995 itself. It is submitted by the counsel for the appellants that even though D.Suresh Babu filed a police complaint in the year 1995 itself with regard to the alleged assignment dated 10-10-1994 but no further proceedings were taken by D.Suresh Babu thereafter. The trial court in its judgment has also returned a finding that the assignment dated 10-10-1994 by D. Suresh Babu in favour of Defendant 4 and assignment dated 17-10-1994 by Defendants 4 to 3 has not been proved. The trial court has itself returned the finding in para 10(iv) to the following effect:
“10. (iv) In such circumstances, it is the bounden duty of the defendants, who are relying upon such document i.e. assignment deed dated 10-10-1994 to establish that such document has been executed by PW 1 conveying satellite broadcasting rights and other rights over the suit scheduled films to fourth defendant. But no such evidence is adduced on record. Neither original nor any authenticated copy of the said document is produced before the court. Further, documents relating to transaction alleged to have been entered into between fourth defendant and the third defendant in respect of these films, also have not been produced before the court. No evidence is adduced on record to establish the claims of the contesting defendants in respect of transfer of satellite broadcasting rights over the suit scheduled films from one to another among Defendants 3 and4.”
17. The trial court by its judgment dismissed the plaintiffs' suit having accepted the case of the plaintiffs regarding assignment of telecasting rights of said scheduled films i.e. assignment of 23-12-1994 in favour of Defendants 5 to 8 at the request of Defendant 4 for 9 years. The plaintiffs' claim for the right of scheduled films arose only after 22-12-2003. They having parted with their right, there was no real threat to their right by any inter se dispute between Defendants 4 and 3 or other defendants. It was on 22-12-2003 that the plaintiffs again became entitled to assign telecasting rights of the aforesaid 16 films after the expiry of the period of 9 years of assigning the telecasting right of 16 films to Defendants 5 to 8 on the request of Defendant 4 on valuable consideration.
18. The trial court while discussing Issue 1 had observed that cause of occasion arose in the year 1995 itself when the plaintiff got knowledge of claim of the first defendant over the given films and the plaintiffs have chosen to file the suit in the year 2003 in respect of agreement dated 10-10-1994. The trial court further held that the plaintiffs sat over their rights for eight long years, hence, suit is barred by time. The suit which was filed in the year 1995 by Defendant 3 against Defendant 4 in the Small Cause Court, Mumbai where assignments dated 10-10-1994 and 17-10-1994 were referred to got dismissed in the year 1995 itself as Small Cause Court had no jurisdiction to consider the claim of Defendant 3.
19. Cause of action to a plaintiff to file a suit accrues when there is a clear and unequivocal threat to infringe a right. The plaintiff having already assigned their right for a period of 9 years by assignment deed dated 23-12-1994, there was no cause of action during the aforesaid period of 9 years. When the plaintiffs had already parted with their right of telecasting films on 23-12-1994 there could not have been any threat to their right in the year 1995. This Court in Daya Singh v. Gurdev Singh (2010) 2 SCC 194, had laid down that a right to sue accrues when there is a clear and unequivocal threat to infringe a right of plaintiff. In paras 14 and 15, the following was laid down :
“14. In support of the contention that the suit was filed within the period of limitation, the learned Senior Counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention the learned Senior Counsel strongly relied on a decision of the Privy Council in Bolo v. Koklan 1930 SCC OnLine PC 62, (1929-30) 57 IA 325. In this decision their Lordships of the Privy Council observed as follows : (SCC OnLine PC : IA p. 331)
‘… There can be no “right to sue” until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.’
15. A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa AIR 1961 SC 808, in which this Court observed : (AIR p. 810, para 7)
‘7. … The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.’
In C. Mohammad Yunus AIR 1961 SC 808, this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue records cannot give rise to cause of action.”
20. We are of the view that in view of the pleadings on the record and facts of the present case, suit filed by the plaintiffs is well within limitation, the finding of the High Court that the suit is within limitation is based on correct appreciation of facts and pleadings. We do not find any merit in this appeal. The appeal is dismissed.
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