GOLDMINES TELEFILMS PVT. LTD. Vs RELIANCE BIG ENTERTAINMENT PVT. LTD. AND ANR.

of the Agreement dated 28^thAugust, 2013, entered into by and between the Defendant No.2 - Annapurna Studios Private Limited and Defendant Nos. 3 - M/s. Zee Entertainment Enterprises Limited and Defendant No.4 - M/s. Royal Film Company and for a permanent injunction against the Defendants from exploiting the Hindi dubbing rights in respect of the said Telegu feature film BHAI. In the above Notice of Motion, the Plaintiff has inter alia prayed for a temporary injunction against the Defendants from exploiting the satellite rights, cable television rights, subtitling rights and the mobile rights in the dubbed version of the Telugu feature film 'BHAI' in Hindi.

2. The brief facts in the matter are set out hereunder :

2.1 On 26^thJuly, 2012, Defendant No. 1 addressed an e-mail to the Plaintiff offering the Hindi dubbing rights of six feature films including the film BHAI.

2.2 By an Agreement dated 3^rdAugust, 2012, entered into by and between the Plaintiff (referred to as 'RE') and Defendant No.1 (referred to as 'ASPL'), Defendant No. 1 assigned in favour of the Plaintiff the Satellite Television Broadcasting rights of the Hindi dubbed version of the Telegu film BHAI for a total consideration of Rs. 80 lacs ("the Goldmines Agreement"). Defendant No. 1 represented to the Plaintiff that it had the sole and exclusive right to assign the Hindi dubbing rights to the Plaintiff.

2.3. The Plaintiff also entered into two more agreements with Defendant No. 1 for acquiring the sole and exclusive Satellite Rights in respect

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of four other movies.

2.4. Since the Agreement envisaged payment of 25% of the consideration at the time of execution of the Agreement, by a cheque dated 6^th August, 2012, bearing No. 002280, the Plaintiff paid to Defendant No. 1 an aggregate amount of Rs.55,00,000/- (after deducting the necessary TDS) as a signing amount for acquisition of the rights for the Telugu Films "Devudu Chesina Manushulu", "Jackpot" and "Bhai", the payment voucher and receipt whereof are annexed as Exhibit 'B' to the Plaint.

2.5. On 3^rdAugust, 2012 Defendant No. 1 also entered into an Agreement with Defendant No. 2 i.e. the Producer of the feature film "BHAI"

where under Defendant No. 2 assigned inter alia the distribution rights in the feature film "BHAI" to the Defendant No. 1 (the Link Agreement ). Clauses 1.1.10, 2.2, 2.27, 2.28 and 10 are reproduced hereunder for ready reference :

1.1.10 - Said Rights/Distribution Rights" includes all rights of any nature whatsoever in the Script and the Film, in perpetuity, worldwide, in all form, format and media including but not limited to the remake rights in any Indian/foreign language, prequel rights, sequel rights. Subtitling and dubbing rights in all languages of the world, novellzation rights, live stage rights, Intellectual Property rights, whether now known or discovered in the future, all the Worldwide Distribution and Marketing Rights across all media platforms (past, present and future), including but not limited to Theatrical rights for the whole world in all forms of theatrical exploitation in 70mm/35mm/Digital Print include theatrical Video rights, all non-theatrical Rights, All commercial and non commercial electronic media rights, All Video Copyrights in all formats and all media Karaoke,

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Electronic Video Projection Rights, All Ancillary Rights, All Internet Rights, Website, IPTV, Broadband, All Multimedia Rights, All video streaming Rights, All cable Rights, All terrestrial Television Rights including all Doordarshan Network Channel and all Regional Network Channels, All mobile telephone Rights via all medium, All Telecommunication Rights, All movie and movie Character based Games development rights, All computer games rights, Hotel and Commercial Establishment Rights, High Seas and surface Transports rights, Air Borne Rights, Rental Rights, publishing rights, Merchandising Rights, Clipping Rights of songs and scenes (both audio, visuals), Recording Embodying,Communication, Processing, Mechanical, Synchronization, All public Performance Rights, All Communication and broadcasting Rights, all Music Audio Copyrights and all rights related to Music Rights, Performing Copyrights, its songs, music, sound track, Radio Station, Public Places, Gramophone Companies, etc., all Satellite Broadcasting Rights including Pay TV Rights, Pay per view, Pay per Day, FTA, DTH, Subscription TV, All Satellite Delivery Rights and rights of re-distribution via any and all medium for Multiple Telecast, All video on demand rights via all medium, method and manner, NVOD, MOD, MVOD, SVOD, All Mobile TV Rights, All digital Rights, etc., in all the languages existing in the world, for the entire term of the copyright and the entire territory of the world and any and all allied, incidental and ancillary rights in and to the films now known or hereinafter invented/discovered in perpetuity.

2.2 ASPL agrees to assign the said Rights of the Film for the Term as defined in Clauses 1.1.12 and RE Agrees to acquire the said Rights of the Film in lieu of a consideration as mentioned in Clause 5 herein below. Further ASPL agrees to assign 50% Intellectual Property Rights (IPR) and all other underlying rights relating to the Film and RE for the term as defined in Clause 1.1.12 Remaining 50% of the Intellectual Property Rights (IPR) and all other underlying rights relating to the Film shall be owned/held by ASPL for the Term.

2.27 The parties agree that RE shall solely control and

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exploit all the Distribution Rights assigned by ASPL to RE of the Film.

2.28 Subject to the terms hereof, RE shall solely exploit all the Distribution Rights and shall solely execute all Distribution Agreements with regards to the Distribution Rights for the entire world with third parties. Parties shall jointly / mutually decide ASK and TAKE prices and terms and conditions relating to sale of all Distribution Rights for the entire world with third parties. The ASK and TAKE price mutually decided by the Parties shall be documented and signed off by the Parties. Further at any stage, if one of the Parties herein gets a best offer then in such event Agreement will be executed with such best offer. Once such ASK and TAKE prices, best offers are decided and finalized by the Parties then RE shall solely execute all distribution Agreements with third Parties. In the event any deal is not within the ASK and TAKE prices as decided by the Parties, RE shall require prior written approval of the ASPL to execute such deals below the TAKE price.

10. ASSIGNMENT AND SUB-LICENSING :

Neither Party to this Agreement will assign this Agreement or its benefits without the prior written consent of the other Party. It is however, agreed that RE shall be entitled to sub license the Distribution Rights of the Film to any third party as per Clause 2.28 herein. Parties agree that such sub-licensees shall not get any credit in the Film.

2.6 According to the Plaintiff, the Goldmines Agreement and the Link Agreement were entered into back to back on the same day i.e. 3^rdAugust, 2012. Hence, Defendant No.2 was aware of the same and the Plaintiff had no reason to suspect the existence of the 1^stDefendant's rights to assign the Hindi dubbing rights acquired from Defendant No.2 to BHAI. Defendant No.1 has refuted this submission of the Plaintiff. Defendant No.1 has submitted that

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the Agreement between the Plaintiff and the Defendant No.1 was executed by the Defendant No.1 at Chennai and by the Plaintiff on 7^thAugust, 2012, after the Link Agreements were forwarded to the Plaintiff. In any event admittedly, a copy of the Link Agreement was received by the Plaintiff on 7^thAugust,

2012.

2.7 On 11^thOctober, 2012, the Plaintiff and Defendant No.1 entered into an addendum to assign further rights being Cable TV rights, subtitling rights and non-exclusive mobile rights for the next 11 years for a consideration of Rs. 3,00,000/- on delivery of materials.

2.8 On 15^thOctober, 2012, the Plaintiff started the process of negotiations with Star India Pvt. Ltd. ("Star") for granting license of satellite broadcasting and other allied rights for a consideration of Rs. 2.50 crores and entered into a formal agreement on 7^thFebruary, 2013.

2.9 On 26^thOctober, 2012, and 27^thOctober, 2012, Star issued a public notice in the issue of Complete Cinema dated 26^thOctober, 2012, and in Trade Guide Magazine dated 27^thOctober, 2012, for acquisition of the Hindi dubbing rights in respect of inter alia BHAI.

2.10 On 6^thNovember, 2012, Defendant No. 1 addressed a letter to Star confirming that the Plaintiff was the sole and exclusive owner of the Hindi dubbing rights in BHAI.

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2.11 According to the Defendant No.1 in about mid November, Defendant No.1 orally communicated to the Plaintiff that the Goldmines Agreement between the Plaintiff and Defendant No.1 was not valid and that no rights have been vested with the Plaintiff. The Plaintiff has denied that the Defendant No.1 had communicated to the Plaintiff that the Agreement was not valid as alleged.

2.12 On 24^thNovember, 2012, Defendant No. 2 addressed a letter to Defendant No. 1 calling upon it to cancel the Goldmines Agreement and assured that it will fetch a price of Rs. 1.50 crore for the Hindi dubbing rights. The Plaintiff has submitted that though the said e-mail is the first reaction of the Defendant No.2 to the Goldmines Agreement, Defendant No.2 has not mentioned that the Goldmines Agreement is contrary to the Link Agreement. The Defendant No.2 has denied that the letter dated 24^thNovember, 2012 is its first reaction to Goldmines Agreement.

2.13 On 4^thJanuary, 2013, Defendant No. 1 and Defendant No.2 entered into an Addendum where Defendant No. 1 undertook to cancel the Goldmines Agreement with the Plaintiff and Defendant No. 2 undertook to license/distribute the Hindi dubbing rights. On 31^stJanuary, 2013, Defendant No.1 and Defendant No.2 entered into another addendum to amend the clauses relating to assignment of Intellectual Property ("the Addendums"). According to the Plaintiff, they were not aware of the Addendums.

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2.14 On 7^thFebruary, 2013, the Plaintiff and Star entered into a formal agreement for license of the satellite broadcasting rights in respect of BHAI.

2.15 On 2^ndJuly, 2013, the Plaintiff addressed an e-mail to Defendant No.1 inter alia enquiring about the theatrical release of BHAI as under clause 3.1 of the Agreement, the Plaintiff was under an obligation to pay further consideration of 25 per cent at that stage. On 3^rdJuly, 2013, Defendant No.1 informed the Plaintiff that they were ready with the delivery material of the film Talaash. The Plaintiff accordingly made the balance payment for Talaash and other films. However, Defendant No.1 remained non-committal about BHAI. According to the Plaintiff, on 10^thJuly, 2013, the Plaintiff continued to follow up with Defendant No. 1 on BHAI and addressed e-mails to it but Defendant No.1 did not respond. After a lot of persuasion, Defendant No. 1 agreed to meet the Plaintiff and in the meeting held on 22^ndJuly, 2013, its Director confirmed that the Plaintiffs rights in BHAI were valid and subsisting.

2.16 According to the Plaintiff, by its e-mail dated 23^rdJuly, 2013, the Plaintiff recorded what transpired at the said meeting. The Plaintiff has submitted that it is pertinent to note that Defendant No.1 did not respond to the said e-mail or deny its contents.

2.17 On 24^thJuly, 2013, Defendant No.1 sent a debit note for HDSR worth Rs. 41,000/- for three films.

2.18 On 25^thJuly, 2013, the Plaintiff addressed an e-mail to Defendant No. 1

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recording the Goldmines Agreement about BHAI. The Plaintiff made payment of Rs. 2,05,000/- in respect of the debit note as it ought to have included HDSR debit note for BHAI. The Plaintiff also called upon Defendant No. 1 to inform the Plaintiff about the theatrical release of BHAI. However, the Defendant No.1 did not respond.

2.19 According to the Plaintiff, by now the Plaintiff was convinced that there was foul play at work and it therefore addressed another e-mail to Defendant No.1 recording its earlier e-mails and finally issued a public notice asserting its rights in BHAI.

2.20 On 29^thJuly, 2013, the Defendant No. 1 addressed a letter to the Plaintiff contending that the Goldmines Agreement and Addendum were void ab initio as they were contrary to the Link Agreement with Defendant No.2, more particularly Clause 2.28 therein. Defendant No. 1 also contended that it had informed the Plaintiff in February, 2013, to negotiate directly with Defendant No.2. Along with the said letter, Defendant No. 1 also sent a cheque for Rs. 22,11,266/- as refund. According to the Plaintiff, Defendant No.1 did not mention anything about the aforestated Addendums executed by and between the Defendant No.1 and Defendant No.2 on 4 ^thJanuary, 2013 and 31^stJanuary, 2013, respectively.

2.21 The Plaintiff disputed the contentions of Defendant No. 1 in its letter dated 29^thJuly, 2013, and returned the cheque.

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2.22 On 31^stJuly, 2013, Defendant No.1 reiterated its earlier contentions.

2.23 On 2^ndAugust, 2013, the Plaintiff responded to the letter dated 31^st July,2013 addressed by Defendant No.1 and published a fresh public notice.

2.24 On 3^rdAugust, 2013, Defendant No. 2 responded to the public notice and for the first time disclosed that Defendant No. 1 had reassigned the rights to Defendant No.2 in January, 2013, under the Addendums. According to the Plaintiff, by its letter dated 6^thAugust, 2013, the Plaintiff called upon Defendant No. 2 to provide copies of the Addendums evidencing the purported reassignment. However, there was no response.

2.25 On 28^thAugust, 2013, Defendant No. 1 assigned the rights in BHAI to Defendant No. 3 - M/s. Zee Entertainment Ltd., confirmed by Defendant No.4 - M/s. Royal Film Co., for an undisclosed consideration out of which a substantial amount of Rs. 90,00,000/- was paid.

2.26 On 30^thSeptember, 2013, the Plaintiff filed the present Suit seeking the aforestated reliefs. On 10^thOctober, 2013, the statement made on behalf of Defendant No.3 that pending the hearing of the Notice of Motion, they shall not telecast the Hindi dubbed version of the Telugu feature film 'BHAI' was recorded.

3. The Learned Senior Advocate appearing for the Plaintiff submitted that on 3^rdAugust, 2012, Defendant No. 1 entered into the Goldmines Agreement

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with the Plaintiff to license the sole and exclusive satellite television broadcasting rights of the Hindi dubbed version of a Telugu film BHAI for a consideration of Rs. 80,00,000/-. In clause 7 of the said Agreement, Defendant No. 1 represented that Defendant No. 1 is fully entitled to assign the Satellite Rights of the Hindi dubbed version and have prior to signing of the Agreement not granted, assigned, transferred or encumbered in any way and in any manner whatsoever the said Satellite Rights to any other person and that Defendant No. 1 has full power and authority to enter into and fully perform its obligations under the Agreement and its performance under the Agreement will not violate the rights of any third party. It is further submitted that under the payment schedule provided in the Agreement, the Plaintiff paid 25 per cent consideration for the Hindi dubbing rights to Defendant No.1 on 3^rdAugust, 2012. However, since the Defendant No.1 gave a lower deduction for TDS on 3^rdAugust, 2012 in Chennai, a fresh cheque was issued by the Plaintiff dated 6^thAugust, 2012. It is submitted that on the same day i.e. 3^rdAugust, 2012, Defendant No. 1 also executed the Link Agreement with Defendant No.2 i.e. the Producer of the feature film BHAI, whereunder Defendant No.2 assigned the copyright in the feature film BHAI to Defendant No.1. Thus, Defendant No. 2 was aware of the creation of the license in favour of the Plaintiff. It is submitted that the Link Agreement was handed over to the Plaintiff by the Defendant No.1 on 7^thAugust, 2012,

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which categorically provides that Defendant No. 2 has assigned the said rights/distribution rights which inter alia include the dubbing rights to the feature film BHAI to Defendant No.1. Similarly, Clause 2.27 of the Link Agreement also empowers Defendant No.1 to solely exploit the said rights assigned to it. It is submitted that Clause 2.28 of the Link Agreement lays down a procedure for determination of the price for sale/licensing of the said rights. It is submitted that on 11^thOctober, 2012, Defendant No. 1 entered into an Addendum to license further rights being cable TV rights, sub-titling rights and non-exclusive mobile rights for the next 11 years for a consideration of Rs. 3,00,000/- to the Plaintiff. It is submitted that the Hindi dubbing rights of a Telegu feature film is not an ordinary article of commerce. The Plaintiff has paid part consideration of Rs. 20,00,000/- to Defendant No.1 under the Agreement. The Plaintiff is ready and willing to perform its obligations under the Agreement. Therefore, the Plaintiff is entitled to a declaration that it is the sole and exclusive owner of the copyright in the Hindi dubbed version of the Telegu film BHAI and for a decree of specific performance of the Agreement and the Addendum dated 11^thOctober, 2012.

4. It is further submitted on behalf of the Plaintiff that the Defendant Nos. 1 and 2 are acting in collusion to defraud the Plaintiff and deprive it of the Hindi dubbing rights. It is submitted that the acts on the

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part of Defendant No. 1 namely, to hold itself out to be the Proprietor of the copyright in BHAI prior to the execution of the Link Agreement with Defendant No.2; to agree to license the Hindi dubbing rights at the consideration mentioned in the Agreement; to represent under clause 7 of the Agreement that Defendant No. 1 had full rights and authority to create an exclusive license in the Plaintiff's favour; to enter into an Addendum licensing further rights to the Plaintiff; to confirm on 6^thNovember, 2012 the Plaintiff's rights to Star TV in response to its public notice; to not raise the contention upto 29^thJuly, 2013, that it had no authority to enter into the Agreement with the Plaintiff and not to raise the issue in any of the several such agreements executed by and between the Plaintiff and Defendant No. 1 which included a clause similar to clause 2.28 of the Link Agreement, indicate beyond any shadow of doubt that Defendant No. 2 was aware of the exclusive license granted to the Plaintiff by Defendant No.1 and that the procedure provided for, in clause 2.28 of the Link Agreement had either been followed by Defendant Nos. 1 and 2 or was waived by Defendant No.2. These facts also reveal that Defendant No. 2 was conscious that a valid agreement had been executed in favour of the Plaintiff and that the Defendants appear to have had an afterthought regarding the terms on which the Hindi dubbing rights were assigned to the Plaintiff.

5. In support of its contention that the Defendant Nos.1 and 2 are

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acting in collusion, it is further submitted on behalf of the Plaintiff that the first reaction of Defendant No.2 on record is an e-mail dated 24 ^thNovember, 2012 and the same is extremely telling. This e-mail addressed to Defendant No.1 expresses no shock or surprise (as one would expect from a party allegedly kept in the dark) that Defendant No. 1 had acted in breach of clause

2.28. On the contrary it suggests an arrangement at variance with clause 2.28 namely that Defendant No. 2 would guarantee a minimum of Rs. 1.50 crores for the Hindi dubbing rights and would undertake the distribution itself. In the light of this arrangement, Defendant No.2 calls upon Defendant No. 1 to

"cancel" the Agreement already "made with a third party for BHAI Hindi dubbing rights", a language which necessarily presupposes a valid Agreement and not a void one. It is submitted that this is also reinforced by the language of the Addendum alleged to have been executed by Defendant Nos. 1 and 2 on 4^thJanuary, 2013. It is submitted that in line with the e-mail dated 24^th November, 2012, the Addendum records an understanding on the part of Defendant No. 1 "to terminate the Agreement in toto entered into between Defendant No. 1 and the Plaintiff". Again the language used once again presupposes the existence of a valid Agreement (and not a void one) in favour of the Plaintiff. It is submitted that it is only in July, 2013, after disputes had arisen, that Defendant No.2's position began to evolve and they set up for the first time their present case that the Agreement in favour of the

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Plaintiff was void, being in breach of clause 2.28. It is submitted that the sequence of events clearly shows that the plea taken by Defendant No. 2 is an afterthought and as a result of Defendant No.2 having changed its mind, probably in response to a better offer as to the value of the Hindi dubbing rights. It is also submitted that the Defendant Nos. 1 and 2 have also set up a false case that Defendant No.1 informed the Plaintiff that it did not have the authority to enter into an Agreement with the Plaintiff in November, 2013. It is submitted that it is an admitted fact that Defendant Nos. 1 and 2 continued their business relations till date and have entered into new agreements which confirms that at no stage there was any dispute between the two and the allegation that the Defendant No. 1 has breached clause 2.28 of the Link Agreement is only an afterthought with a dishonest intention to back out of the agreement executed by and between the Plaintiff and the Defendant No.1.

6. Relying on Clauses 1.1.10, 2.2, 2.27, 3.1, 3.2, 4.1, 10, 12.3 and 12.5, it is submitted on behalf of the Plaintiff that under the Link Agreement between Defendant Nos. 1 and 2, Defendant No. 2 has assigned inter alia the dubbing rights to Defendant No. 1 and therefore it is not a co-owner of the same. It is submitted that the case law cited by Defendant No. 2 in respect of the rights or co-owners to deal with copyright is therefore not applicable in the facts of the present case. It is also submitted that placing a limitation on

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assignment is separate and distinct from creating co-ownership.

7. It is further submitted on behalf of the Plaintiff that Defendant Nos. 3 and 4 are not bona fide purchasers for consideration and therefore the Plaintiff is entitled to cancellation of the Agreement dated 20 ^thAugust, 2013, between Defendant No.2 and Defendant Nos. 3 and 4. It is submitted that there have been five public notices issued in trade publication since 2012 in respect of the feature film BHAI. It is submitted that being a part of the entertainment industry, Defendant No.3 is presumed to be aware of the dispute in relation to the feature film BHAI and in any event is bound to have notice of the said dispute through the trade publications.

8. It is further submitted on behalf of the Plaintiff that the balance of convenience is in favour of the Plaintiff and the Plaintiff is entitled to the reliefs as sought in the Notice of Motion. The Notice of Motion be therefore, allowed as prayed.

9. Mr. Kamdar, learned Senior Advocate appearing for the Defendant No.1 - Reliance Big Entertainment Private Limited, has made following submissions :

(i) That the Goldmines Agreement executed by and between the Plaintiff and Defendant No.1 was prepared and executed only by Defendant No.1 in Chennai. After receiving the Link documents from Defendant No.1 of five films (including BHAI), which included the Link

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Agreement dated 03-08-2012 executed by and between Defendant Nos.1 and 2, the Plaintiff signed the Goldmines Agreement on 07-08-2012 in Mumbai at the office of Defendant No.1 and not on 03-08-2012, as alleged by the Plaintiff.

(ii) That on 07-08-2012, the Plaintiff provided a cheque of Rs.54,99,450/-, which was on the same date deposited with the bank and was cleared on 09-08-2012.

(iii) That the Plaintiff was thus aware that the Goldmines Agreement executed on 07-08-2012 was subject to the mandatory requirements of Article 2.28. Even otherwise, the Plaintiff by an additional affidavit dated 29-05-2014 has itself annexed 14 similar Agreements entered with the Defendant No.1 having similar clause to that of Article 2.28, thereby being fully aware that the Defendant No.1 had a capacity to contract with the Plaintiff only after it had mutually decided in writing with Defendant No.2 the price on which the rights in the film would be exploited.

(iv) The Defendant No.1 had entered into a Goldmines Agreement with the Plaintiff in good faith. At that point of time, the Defendant No.1 had not foreseen that the Defendant No.2 would raise an issue regarding compliance of Clause 2.28 of the Assignment Agreement. However, subsequently Defendant No.2 asserted that the Goldmines Agreement was bad in law and/or illegal and/or void ab-initio and/or

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unenforceable.

(v) That the Defendant No.1 in or about mid November 2012, orally communicated to the Plaintiff that the Goldmines Agreement was not valid and that no rights would therefore, vest with the Plaintiff.

(vi) That the Defendant No.1 thereafter, entered into Addendum Agreements dated 04-01-2013 and 31-01-2013 with Defendant No.2, thereby annulling the Goldmines Agreements in toto keeping in mind that Defendant No.1 had already informed the Plaintiff of the infirmity and/or illegality in the Goldmines Agreement.

(vii) That the Plaintiff thereafter had negotiations with Mr. Sai Babu of Defendant No.2, reaffirming that the Plaintiff recognized and acknowledged that Goldmines Agreement was void ab-initio and/or bad in law. Thus, the Plaintiff by its conduct is now estopped from claiming specific performance of the Goldmines Agreement.

(viii) That the Plaintiff made several mis-representations to Star India Private Limited under the Agreement dated 07-02-2013.

(ix) That the Plaintiff having already assigned rights to sue in favour of Star India Private Limited, has no locus to file the present Suit.

(x) That the Plaintiff has not joined Star India Private Limited as a party to this Suit, nor has Star India Private Limited initiated any proceedings against any of the parties.

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(xi) That the Defendant No.2 being the first owner and producer of the film has created rights in favour of Defendant No.3 and in light of the same, no relief can be granted in favour of the Plaintiff for specific performance of the Goldmines Agreement.

(xii) That the Plaintiff is not entitled for specific performance since the Plaintiff has already quantified and claimed damages in the Plaint at Exhibit AA.

(xiii) That the Plaintiff has made no case for grant of any injunction. The balance of convenience clearly lies in favour of Defendant No.1. The reliefs sought in the Notice of Motion by the Plaintiff be therefore rejected.

10. Mr. Seervai, learned Senior Advocate appearing for Defendant No.2 - Annapurna Studios Private Limited, has made the following submissions :

(i) The Link Agreement granted to Defendant No.1 only 50% copyrights in the film and the entire distribution rights therein. However, under Clause 2.28 of the said Agreement, the Defendant No.1 was not legally competent to unilaterally grant rights to any third party without first documenting the mutual/joint decision on ASK and TAKE price under Clause

2.28. Since Defendant No.1 was not legally competent/entitled to unilaterally grant satellite rights for the Hindi dubbed version of the film,

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there was no question of the Plaintiff acquiring any rights. In support of his above contention, Mr. Seervai relied on the decisions of the Hon'ble Supreme Court in the case of Mahabir Gope V/s. Harbans Narain Singh and Ors.¹and in the case of in State of Punjab V/s. Surjeet Kaur.²

(ii) That in the absence of any documents showing compliance of Clause 2.28 of the Agreement, the title of the Plaintiff if not ab initio void is clearly doubtful to say the least. In support of this contention, Mr. Seervai relied on the decision of the Madras High Court in the case of Rajendrakumar Bhandari V/s. Poosammal and Ors.³

(iii) That in the instant case, far from the Plaintiff claiming injunction against any of the Defendants, the Defendant No.2 is infact in a position to seek an injunction against the Plaintiff. The Defendant No.2 is a joint owner in respect of the intellectual property rights in the film along with the Defendant No.1 to the extent of 50:50 each. Even with regard to the distribution rights, the Defendant No.2 has transferred the said distribution rights subject to compliance of Clause 2.28. Therefore, Defendant No.1 could not have unilaterally purported to have entered into an Agreement with the Plaintiff qua the distribution rights without complying with Clause 2.28 of the Agreement. It is the Defendant No.2 therefore, who in its capacity as a joint owner, entitled to seek an injunction against the third party. In support of

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this contention, Mr. Seervai has relied on the decisions in Powell V/s. Head⁴, Cescinsky V/s. George Routledge and Sons Ltd. ⁵ , and Agnath Arts Pvt. Ltd. V/s. Century Communications Ltd.⁶

(iv) That the Plaintiff was a seasoned party in business, well acquainted with the industry practice of verifying link documents before purchasing the distribution rights, the Plaintiff was aware that the Defendant No.1 was not the producer of the film and the Plaintiff therefore, ought to have taken inspection of the Link Agreement between Defendant Nos.1 and 2 before entering into an agreement with the Defendant No.1. Infact the Plaintiff admits that he entered into an agreement with Defendant No.1 without verifying the Link Agreement. Even if it is to be believed that the Plaintiff received the Link Agreement on 7^thAugust, 2012, after signing the Agreement on 03-08-2012, the Plaintiff never bothered to write to Defendant No.1 inquiring about the existence of any document showing mutual / joint decision of Defendant Nos.1 and 2 on the ASK and TAKE price. Infact, the Plaintiff entered into an Addendum Agreement dated 11-10-2012 with Defendant No.1 further acquiring Mobile Rights in the film. Thus, the Plaintiff was well aware of the position that it was purporting to acquire something which Defendant No.1 was not in a position to sell and it consciously did so, because it knew that it was getting distribution rights at a throw away price of

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Rs.80 Lakhs, which was then worth atleast Rs.2.5 Crores. The Plaintiff has therefore, taken a calculated and conscious risk and is now not entitled to the reliefs sought.

(v) That between February to July 2013, the Plaintiff entered into negotiations with Defendant No.2. Holding such negotiations with Defendant No.2 is clear proof of the fact that the Plaintiff accepted that he derived a faulty title from Defendant No.1 and that it is not in a position to exploit the distribution rights acquired from Defendant No.1 alone.

(vi) That the Plaintiff is deliberately mis-reading the email dated 24-11-2012. The said email is not the first reaction of Defendant No.2 as alleged by the Plaintiff. Without prejudice to the contention of Defendant No.2 that the allegations made by the Plaintiff qua the said email dated 24-11- 2012 is not found in the pleadings, it is submitted that when Defendant No.2 become aware of the Goldmines Agreement through the Notice of Star TV dated 26-10-2012, the Defendant No.2 informed the Defendant No.1 that the Agreement signed with the Plaintiff is void ab-initio as the condition precedent specified in Clause 2.28 was not complied with, as no prior approval of Defendant No.2 had been obtained whether in relation to price or regarding the Agreement. Thereafter, further modalities were worked out between Defendant Nos.1 and 2 during the course of the meeting held on 23-11-2012. What is recorded in the email dated 24-11-2012 was merely the final

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modalities as determined in the discussions held on 23-11-2012.

(vii) That there was no reason or occasion for Defendant No.2 to respond to the Notice of Star TV with whom Defendant No.2 had no privity of contract. The moment the Plaintiff published a notice on 27 ^thJuly, 2013, the Defendant No.2 immediately responded on 03-08-2013.

(viii) That the contention of the Plaintiff that Defendant No.2 was aware of Goldmines Agreement or that the Link Agreement and the Goldmines Agreement, were back to back agreements is false and baseless. As pointed out by Defendant No.1, while the Link Agreement was executed on 03-08-2012, the Goldmines Agreement was signed by Mr. Manish Shah of the Plaintiff at Mumbai on 07-08-2012. This sequence of events is also fortified from the Plaintiff's own assertion that the Link Agreement was given to it on 07-08-2012.

(ix) That compliance with Clause 2.28 cannot be inferred on the basis of conduct of parties in the absence of a document in writing evidencing joint/mutual decision on ASK and TAKE prices.

(x) That in the rejoinder, the Plaintiff's Counsel for the first time contended that the Defendant No.1 is infact the sole and exclusive owner of the copyright of the feature film BHAI and the Defendant No.1 is not a co- owner of copyrights in the said film along with Defendant No.2. This contention is premised on the interpretation of clauses 1.1.10 and 2.2 of the

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Link Agreement. It is submitted that the Plaintiff cannot be permitted to orally urge this point as it has not pleaded this case in any of the pleadings and most importantly in the Plaint. Without prejudice to the said contention, it is submitted that the Plaintiff's contention that Defendant No.1 became the full and absolute owner in the film is totally baseless and is belied by the specific provision of Clause 2.2, which provides for co-ownership of copyrights in the ratio of 50:50 in the film by Defendant Nos.1 and 2. Infact, looking to the nature of the agreement and the rights conferred thereunder, it is clear that the rights referred to in clause 1.1.10 are only distribution rights and have nothing to do with copyrights in the film, which continue to vest in Defendant Nos.1 and 2.

(xi) Again under clause 2.2 of the Link Agreement, the rights defined under Clause 1.1.10 are fully assigned by Defendant No.2 to Defendant No.1 subject to the limitation under Clause 2.28. The distribution rights defined under Clause 1.1.10 are a facet of copyrights in the cinematograph film BHAI as it is one of the exclusive acts specified under Section 14 which the owner can do or authorize to do. Under Section 14(1) (d), the owner of a cinematograph film has the exclusive right "to communicate the film to the public". Thus, the rights assigned by Defendant No.2 to Defendant No.1 under Clause 1.1.10 read with clause 2.2 is essentially the right to communicate the film to the public. Undoubtedly, under Section

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18(1) of the Act, such assignment can be made subject to limitation and such limitation is to be found in Clause 2.28. Under Clause 2.28, the Defendant No.2 has put a specific restriction on the distribution rights of Defendant No.1 that the same cannot be exploited without first jointly/mutually deciding the ASK and TAKE price. Since Defendant No.1 purported to enter into an agreement with the Plaintiff without compliance of Clause 2.28, no rights can flow from the said Agreement and the Agreement between the Plaintiff and Defendant No.1 to that extent is void.

(xii) That the Plaintiff has entirely failed to make out a prima facie case. It is clear that the Plaintiff has not acquired any valid title for distribution rights of the film and cannot therefore claim an injunction against inter alia Defendant No.2.

(xiii) That any loss suffered by the Plaintiff is capable of being compensated in terms of money, whereas loss incalculable in terms of money would be caused to the Defendant No.2, if an injunction is granted staying broadcasting of the film. Thus, the balance of convenience is overwhelmingly in favour of Defendant No.2 and against the Plaintiff. It is therefore, submitted that no injunction or other interim relief be granted to the Plaintiff and the Notice of Motion be dismissed.

11. Mr. Ankit Lohia, learned Advocate for Defendant No.3 has submitted as follows :

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(i) That it is clear from the statements made by the Plaintiff in the Plaint as well as in its Affidavits that the representation, if any, made to the Plaintiff in respect of compliance of Clause 2.28 of the Agreement was made only on or after 07-08-2008 and the Suit Agreement dated 03-08-2012 was executed thereafter.

(ii) That even if one were to assume that the Agreement dated 03-08-2012 between the Plaintiff and Defendant No.1 was executed on 03-08- 2012, it is clear that atleast on 07-08-2012, the Plaintiff had express notice of all terms and conditions of the Agreement between Defendant Nos.1 and 2. Despite such notice, the Plaintiff executed a further Addendum dated 11-10- 2012 with Defendant No.1.

(iii) That the Plaintiff has failed to provide any document to show that Defendant No.1 represented to the Plaintiff that there was compliance of the provisions of Clause 2.28 of the Agreement between Defendant Nos.1 and 2.

(iii) That the case of waiver of its rights by Defendant No.2, as pleaded by the Plaintiff is not only false but also contrary to the representation made by the Plaintiff to Star India in the Agreement dated 07-02-2013. In any event, the terms of the Agreement between Defendant Nos.1 and 2 clearly provide that none of the terms of the Agreement shall be deemed to be waived.

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(iv) That the question of Defendant No.2 being aware of the Agreement between the Plaintiff and the Defendant No.1 cannot and does not arise, since it is inconceivable that whereas the Plaintiff was not aware of the terms of an agreement allegedly executed on back to back basis, Defendant No.2 would have been aware of the Agreement with the Plaintiff.

(v) That the Plaintiff has not sought any prayer for performance by Defendant Nos.2 to 4. Prayer clause (a) and (c) of the Plaint cannot be granted in the absence of any relief of performance against Defendant Nos.2 to 4.

(vi) Even if one was to assume that the prayer clause (d) in effect is a prayer for seeking performance against Defendant Nos.2 to 4, the Plaintiff is not entitled to maintain any Suit seeking such a relief against Defendant No.1 inter alia in view of the provisions of Section 15 of the Specific Relief Act, 1963, in as much as the Plaintiff is not a party to the contract between Defendant Nos.1 and 2.

(vii) The question of determining whether the Plaintiff has a right of specific performance, the same would have to be determined on the basis as to whether Defendant No.1 who had acted in violation of the terms of the agreement with Defendant No.2 could have maintained a suit for specific performance against Defendant No.1.

(viii) That the balance of convenience is not in favour of the

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Plaintiff. The Notice of Motion ought to be dismissed with costs.

12. I have considered the submissions advanced by the learned Advocates for the parties. The Defendant No.2, is admittedly, the Producer of the Telegu film "BHAI". On 03-08-2012, the Defendant Nos.1 and 2 entered into a Link Agreement whereunder Defendant No.2 assigned exclusive distribution rights including the dubbing rights of the feature film "BHAI" to the Defendant No.1, subject to compliance of Clause 2.28 which is once again reproduced hereunder :

2.28 Subject to the terms hereof, RE shall solely exploit all the Distribution Rights and shall solely execute all Distribution Agreements with regards to the Distribution Rights for the entire world with third parties. Parties shall jointly / mutually decide ASK and TAKE prices and terms and conditions relating to sale of all Distribution Rights for the entire world with third parties. The ASK and TAKE price mutually decided by the Parties shall be documented and signed off by the Parties. Further at any stage, if one of the Parties herein gets a best offer then in such event Agreement will be executed with such best offer. Once such ASK and TAKE prices, best offers are decided and finalized by the Parties then RE shall solely execute all distribution Agreements with third Parties. In the event any deal is not within the ASK and TAKE prices as decided by the Parties, RE shall require prior written approval of the ASPL to execute such deals below the TAKE price.

It is clear from the above Clause 2.28 of the Link Agreement that the Defendant No.1 was competent to grant the rights assigned to it by Defendant No.2 to a third party only after first documenting the mutual / joint decision on the ASK and TAKE price with the Defendant No.2.

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13. On 03/07-08-2012, the Plaintiff and Defendant No.1 also entered into the Goldmines Agreement, whereunder Defendant No.1 agreed to licence and sell exclusive satellite TV broadcasting rights of the Hindi dubbed version of Telegu Film "BHAI" in favour of the Plaintiff for a consideration of Rs.80 Lakhs. In the said Agreement, Defendant No.1 represented to the Plaintiff that Defendant No.1 is fully entitled to assign the said satellite rights of the Hindi dubbed version and has full power and authority to enter into and fully perform its obligations under the said Agreement and that its performance under the said Agreement will not violate the rights of any third party. The representations made by the Defendant No.1 were obviously incorrect since Defendant No.1 has now admitted before this Court that the conditions agreed upon in Clause 2.28 of the Link Agreement were never complied with between the Defendant Nos.1 and 2 viz. the ASK and TAKE Price Agreement was not in place.

14. The Defendant No.1 has submitted that in light of the long standing commercial relationship between Defendant Nos.1 and 2, Defendant No.1 had acted in good faith and had not foreseen that Defendant No.2 would raise the issue regarding compliance of clause 2.28 of the Link Agreement. This argument of Defendant No.1 cannot be accepted. Clause 2.28 of the Link Agreement was incorporated in the Link Agreement by and between Defendant Nos.1 and 2, despite "long standing commercial relationship with

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the Defendant No.2". The Defendant No.1 now cannot justify the breach of Clause 2.28 of the Link Agreement on the ground of its long standing commercial relationship with Defendant No.2, since in that event the sanctity of the Agreement executed by and between the Defendant Nos.1 and 2 would be completely lost.

15. The Defendant No.1 has submitted that pursuant to the Public Notice issued by Star India Pvt. Ltd., the Defendant No.2 learnt about the Goldmines Agreement and raised an objection qua the same with the Defendant No.1. The Defendant No.1 has submitted that therefore, in or about mid November, 2012, Defendant No.1 orally communicated to the Plaintiff that the Goldmines Agreement was not valid and that no rights have been vested with the Plaintiff. This submission of Defendant No.1 also does not appear to be honest. Firstly, as correctly submitted by the Plaintiff, correspondence between the Plaintiff and Defendant No.1 was always on email and there is no such email on record. The contention of verbal communication is contrary to the Agreement. In any event, if the Defendant No.1 had informed the Plaintiff that the Goldmines Agreement was not valid, surely Defendant No.1 would have in mid November, 2012 itself also returned an amount of Rs.22,11,266/-, which was received by the Defendant No.1 from the Plaintiff under the Goldmines Agreement and would not have attempted to return the same for the first time on 29-07-2013. The

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submission of Defendant No.1 of having informed the Plaintiff in mid November, 2012 that the Goldmines Agreement was not valid, is also belied by the facts stated by the Plaintiff in its email dated 23-07-2013 addressed to the Defendant No.2 (Exhibit L Page 102 of the Plaint), namely, the manner in which the Plaintiff followed up the matter pertaining to the feature film BHAI with the Defendant No.1 upto 22^ndJuly, 2013, when a meeting was held between the Plaintiff and the Defendant No.1, where the Director of Defendant No.1 confirmed that the rights of the Plaintiff in BHAI were valid and subsisting. The contents of the said email were neither denied nor disputed by the Defendant No.1. It is only in the Affidavit-in-Reply of the Defendant No.1 dated 15^thOctober, 2013 that the Defendant No.1 for the first time stated that the contents of the email dated 23-07-2013 were incorrect and also made a futile attempt to justify the same by stating that in the debit note for HDSR sent on the next day, the Defendant No.1 had not included the film BHAI. I have no doubt that if the facts set out in the email dated 23-07- 2013, which was forwarded by the Plaintiff to the Defendant No.1, more particularly the fact stating that the Director of Defendant No.1 had confirmed that the Plaintiff's rights in BHAI were valid and subsisting were incorrect, the Defendant No.1 would have immediately responded to the said email and denied its contents. It therefore, appears that only after the Plaintiff on 26-07- 2013 addressed another email to the Defendant No.1 regarding its earlier

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email and issued a Public Notice asserting its rights in BHAI on 26-07-2013, that the Defendant No.1 for the first time through its letter dated 29-07-2013 took a stand that the Goldmines Agreement dated 3^rdAugust, 2012 and the Addendum dated 11^thOctober, 2012 were void ab-initio and they were contrary to the Link Agreement with Defendant No.2. It is also pertinent to note that even at this stage, the Defendant No.1 maintained complete silence qua the Addendums executed by and between the Defendant Nos.1 and 2.

16. I am therefore prima facie convinced that the Defendant No.1 had prior to 29-07-2013 never taken a stand with the Plaintiff that the Goldmines Agreement and the Addendum dated 11^thOctober, 2012 were void ab-initio and contrary to the Link Agreement.

17. From the aforestated facts and sequence of events, I am prima facie of the view that the Defendant No.1 apart from initially making incorrect representations in the Goldmines Agreement, has as mentioned hereinabove, also made incorrect submissions before this Court.

18. I am therefore also not convinced that the Plaintiff had negotiations with the Defendant No. 2 between February 2013 and July, 2013. The Plaintiff has explained that between February to July the Plaintiff did not carry on any correspondence with the Defendant No. 1, since under the Agreement dated 7^thFebruary, 2013 with Star TV, the Plaintiff was under an obligation to deliver the feature film to Star TV by 1^stAugust, 2013. Similarly,

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when the Plaintiff and Defendant No. 1 entered into the Agreement the feature film was under production and was likely to take at least 12 months for completion. Therefore, there was no need to address any written communication enquiring about the release of the feature film "BHAI" before July, 2013, when the Plaintiff's obligation to deliver the feature film to Star TV became due. This explanation by the Plaintiff prima facie appears to be correct.

19. The Plaintiff has also contended that the Defendant Nos.1 and 2 had either complied with the requirement of Clause 2.28 of the Link Agreement or Defendant No.2 had waived the requirement of Clause 2.28. It is submitted that Defendant No. 2 was aware of the terms of the Goldmines Agreement since the Goldmines Agreement and the Link Agreement are back to back Agreements. It is submitted that only after receiving a higher offer for the rights granted to the Plaintiff under the Goldmines Agreement, Defendant Nos. 1 and 2 colluded with each other in order to defeat the rights of the Plaintiff and Defendant No. 2 took a stand that the Goldmines Agreement is void ab-initio, since Defendant No.1 had not complied with the Clause 2.28 of the Link Agreement. In support of this contention, the learned Senior Advocate appearing for the Plaintiff took me through the sequence of events and laid great emphasis on an email dated 24-11-2012 addressed by the 2^nd Defendant to the 1^stDefendant, which according to the Plaintiff is the first

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reaction of Defendant No.2 to the Goldmines Agreement. It is submitted that in this email, it is not mentioned by the Defendant No.2 that the Defendant No.1 had acted in breach of Clause 2.28. In fact, the said email does not mention Clause 2.28 at all, nor does it assert that the Agreement is void ab- initio on account of breach of clause 2.28. Instead it is suggested in the email that the Defendant No.1 would guarantee a minimum of Rs.1.50 Crores for the Hindi dubbing rights and would take the distribution itself. It is submitted on behalf of the Plaintiff that in light of this arrangement, Defendant No.2 by its email called upon the Defendant No.1 to "cancel" the Agreement already "made with a third party for Bhai Hindi dubbing rights", a language which necessarily presupposes a valid Agreement and not a void one. It is further submitted on behalf of the Plaintiff that in line with the email dated 24-11-2012, the Addendum executed by and between Defendant Nos. 1 and 2 records the understanding on the part of Defendant No.1 "to terminate the agreement in toto entered into between Defendant No.1 and the Plaintiff", which language once again presupposes the existence of a valid Agreement. The Plaintiff has further submitted that the fact that the Defendant No.2 has continued to carry on its business relations with Defendant No.1 who had purportedly entered into the Goldmines Agreement with the Plaintiff in breach of the Link Agreement, also shows that the Defendant No. 2 was aware of the Goldmines Agreement at all relevant times

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and the ignorance later pleaded qua the knowledge of the Goldmines Agreement is only a ploy to wriggle out of the Goldmines Agreement, whereunder the sole and exclusive rights pertaining to the distribution of the film BHAI are assigned in favour of the Plaintiff.

20. As regards the allegation of the Plaintiff that the Goldmines Agreement and the Link Agreement were executed back to back and therefore Defendant No. 2 was aware of the Goldmines Agreement, cannot be accepted, since prima facie there does exist a dispute as to whether the Goldmines Agreement was executed on 3^rdAugust, 2012 or on 7^thAugust, 2012.

20. As regards the allegations made by the Plaintiff pertaining to the email of Defendant No. 2 dated 24^thNovember, 2012 addressed to the Defendant No.1, including the allegation that the said email is the first reaction of Defendant No.2 to the Goldmines Agreement, the Defendant No. 2 has admitted that on 26^thOctober, 2012, after Star TV issued a Public Notice as regards the acquisition of Hindi dubbing rights in respect of inter alia BHAI, the Defendant No.2 raised an issue of distribution of the said rights with the Defendant No.1. During the course of the discussion held with Defendant No.1, Defendant No.2 acquired knowledge in respect of the Goldmines Agreement. Defendant No.2 informed the Defendant No.1 that the Goldmines Agreement with the Plaintiff is void ab-initio, as the condition precedent specified in Clause 2.28 was not complied with, as no prior approval of

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Defendant No.2 had been obtained either in relation to price or the Agreement. Thereafter, further modalities were worked out between Defendant Nos.1 and 2 during the course of the meeting held on 23-11-2012. What is recorded in the email dated 24-11-2012 was merely the final modalities as determined in the discussion held on 23-11-2012. In my view, the explanation given by Defendant No.2 is prima facie plausible/convincing and the Plaintiff's contention that the email dated 24-11-2012 was the first reaction of Defendant No.2, cannot be accepted at this prima facie stage. It therefore also cannot be accepted that the language used in the said email and in the Addendum executed by and between the Defendant Nos.1 and 2, presupposes the existence of a valid agreement and not a void one.

21. The Plaintiff has further submitted that the collusion between Defendant No. 1 and Defendant No. 2 is also clear from the fact that Defendant Nos.1 and 2 have continued with their business relationship, despite Defendant No. 1 having breached the Link Agreement. It appears that Defendant No. 2 upon making it clear to Defendant No. 1 in October/November, 2012 that the Goldmines Agreement was not acceptable to Defendant No. 2, Defendant No. 1 agreed to cancel the same and accepted the fresh proposal made by Defendant No. 2 inter alia qua the distribution rights of the film BHAI. Defendant No. 2 being a commercial organization cannot be accused of collusion if it thereafter took a commercial decision in

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the matter and continued its business dealings/relations with Defendant No.1. In fact, it appears that Defendant No. 1 upon Defendant No. 2 registering its protest to the Goldmines Agreement, immediately agreed to cancel the said Agreement with the Plaintiff. Defendant No. 2 also did not pursue its protest qua the Public Notice issued by Star TV with whom it had no privity, and for the first time registered its protest when a notice was issued by the Plaintiff on 02-08-2013 claiming its rights under the Goldmines Agreement, by which time Defendant No. 2 had entered into an Agreement qua the distribution rights of the film "BHAI" with the Defendant No. 3. I am therefore, at this prima facie stage, not convinced inter alia from the sequence of events, or in view of the email dated 24^thNovember, 2012 or the Addendums executed by and between the Defendant Nos.1 and 2, that the Defendant No.2 has acted in collusion with the Defendant No.1 to deprive the Plaintiff of its alleged rights and I am of the view that the allegations advanced on behalf of the Plaintiff in this regard will have to be established by the Plaintiff by leading evidence at the time of the trial of the Suit.

22. Though, I have inter alia held herein above that the Defendant No.1 has made incorrect representations in the Goldmines Agreement, I am of the view that the Plaintiff ought not to have relied on the representations made by the Defendant No.1 and ought not to have proceeded with the execution of the Goldmines Agreement without verifying such representations.

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The Plaintiff was admittedly aware that Defendant No. 1 was not the producer of the film BHAI and that it was Defendant No.2 who was the producer of the film BHAI, who had therefore granted the distribution rights of the film

"BHAI" to the Defendant No.1. The Plaintiff is admittedly well acquainted with the industry practice namely that the purchase of distribution rights would necessarily involve link documents. Though, there is a dispute between the Plaintiff and Defendant No.1 about the date of signing the Agreement by the Plaintiff, and whether the Plaintiff's signed the agreement before or after receiving the copy of the Link Agreement, even assuming that the Plaintiff signed the Agreement on 03-08-2012 and received the Link Agreement only on 07-08-2012, the Plaintiff who claims that it is in regular business of acquisition, distribution and licensing of cinematograph films and has admittedly acquired satellite rights in respect of a large number of films, ought to have first insisted upon the terms of the Link Agreement executed by and between Defendant Nos.1 and 2, and thereafter ought to have satisfied itself as to whether Clause 2.28 of the Link Agreement has been complied with by the Defendant No.1. The Plaintiff admittedly did not do so. Instead the Plaintiff has in its Additional Affidavit tried to justify its conduct of not insisting on the compliance of Clause 2.28 of the Link Agreement, by submitting that the Plaintiff and Defendant No.1 have entered into several such agreements (14 in number), wherein Defendant No.1 had licensed inter

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alia Hindi dubbing rights, Doordarshan rights to the Plaintiff and in all such cases, though similar clauses such as Clause 2.28 of the Link Agreement were provided, no such issue ever arose between the parties. This admission on the part of the Plaintiff is very crucial since it establishes that the Plaintiff at all relevant times was aware that the Link Agreement executed by and between Defendant Nos.1 and 2 was in existence, and that it contained a clause on the lines of Clause 2.28, which mandates a mutual decision on the ASK and TAKE price and which would be documented and signed by all the parties. Despite having full knowledge of this fact, the Plaintiff who was bound to first ascertain whether the document on such ASK and TAKE price was executed by and between Defendant Nos.1 and 2, did not do so on the ground of purported trust reposed by it in Defendant No.1. Even if one were to proceed on the basis that the Plaintiff received the Link Agreement on 07- 08-2012, after signing of the Agreement on 03-08-2012, and the Plaintiff was not earlier aware of the existence of Clause 2.28 in the Link Agreement, admittedly the Plaintiff never bothered to write to the Defendant No.1 inquiring about the existence of any document showing mutual/joint decision between Defendant Nos.1 and 2 on the ASK and TAKE price. The conduct of the Plaintiff is further exposed by the fact that despite knowing on 03-08-2012 or 07-08-2012 that the Defendant No.1 was not in a position to unilaterally grant the distribution rights, the Plaintiff entered into an Addendum

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Agreement dated 11-10-2012 with the Defendant No.1, further acquiring the mobile rights in the film. Thus, the Plaintiff was well aware of the position that it was purporting to acquire something which Defendant No.1 was not in a position to sell. The Defendant No.2 has come forward with a case that there exists no document showing mutual / joint decision between Defendant Nos.1 and 2 on the ASK and TAKE price and in view thereof, the condition agreed upon by and between Defendant Nos.1 and 2 enabling the Defendant No.1 to grant the distribution rights in the film BHAI have not been complied with and the Defendant No.1 had no right whatsoever to execute either the Agreement dated 03-08-2012 or the Addendum Agreement dated 11-10-2012 with the Plaintiff. Since I have already held hereinabove that the Plaintiff has not made out a prima facie case of collusion between Defendant Nos. 1 and 2, the Plaintiff has to be blamed for its conduct of not being vigilant and ignoring the requirement of ascertaining the compliance of Clause 2.28 of the Link Agreement and cannot be heard to say that it is entitled to specific performance of the Goldmines Agreement and the Addendum dated 11^th October, 2012 executed between the Plaintiff and Defendant No.1 without complying with Clause 2.28 of the Link Agreement, thereby causing loss and prejudice to the Defendant No.2.

23. In any event, the distribution rights granted by the Defendant No.2 to the Defendant No.1 under the Link Agreement, is clearly subject to the

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condition of compliance of Clause 2.28. Compliance with Clause 2.28, cannot be inferred on the basis of conduct of parties in absence of a document in writing evidencing joint/mutual decision on ASK and TAKE prices. Admittedly, no document exists evidencing the mutual / joint decision of Defendant Nos.1 and 2 on the ASK and TAKE price. The Defendant No.1 was therefore, not legally competent to unilaterally grant rights to any third party without first documenting the mutual / joint decision on the ASK and TAKE price under clause 2.28. Thus, non-compliance of Clause 2.28 is established. I am therefore, in agreement with the Counsel appearing for Defendant No.2 that when Defendant No.1 admittedly was not legally competent / entitled to unilaterally grant satellite rights for the Hindi dubbed version of the film, there is no question of the Plaintiff acquiring any rights. This view is fortified by the decisions of the Hon'ble Supreme Court in Mahabir Gope and Ors. V/s. Harbans Narain Singh and Ors. (Supra), wherein it is held that, 'general rule is that a person cannot by transfer or otherwise confer better title to another than he himself has' and the decision in State of Punjab V/s. Surjeet Kaur (Supra) wherein the question for judicial determination was whether a widow, who had only a life estate during her life time, could sell the interest in the property i.e. beyond her life time, the Hon'ble Supreme Court held that 'she ceased to be an ostensible owner after her death and cannot pass a better title than what she had'.

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24. The learned Senior Advocate appearing for the Plaintiff has contended that the Defendant No.1 is the sole and exclusive owner of the copyright in the feature film BHAI and that Defendant No.1 is not the co- owner of the copyright in the said film along with Defendant No.2. This contention is premised on the interpretation of Clauses 1.1.10 and 2.2 of the Link Agreement. However, this contention of the Plaintiff cannot be accepted in view of the specific provision of Clause 2.28, which provides for co- ownership of copyrights in the ratio of 50:50 in the film by Defendant Nos.1 and 2. If the interpretation of the Plaintiff is to be accepted, it would render Clause 2.2 completely nugatory and otiose. Under Clause 2.2 of the Link Agreement, the rights defined under Clause 1.1.10, are fully assigned by Defendant Nos.1 to Defendant No.2, subject to the limitation under Clause

2.28. The rights assigned by Defendant Nos.1 and 2 under Clause 1.1.10 read with Clause 2.2 is essentially the right to communicate the film to the public. Undoubtedly, under Section 18(1) of the Act, such assignment can be made subject to limitation and such limitation is to be found in Clause 2.28. Under Clause 2.28, Defendant No.2 has put a specific restriction on the distribution rights of Defendant No.1, that the same cannot be exploited without first jointly / mutually deciding the ASK and TAKE price. Since Defendant No.1 purported to enter into an agreement with the Plaintiff without compliance of Clause 2.28, no rights can flow from the Link Agreement, and the Goldmines

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Agreement between the Plaintiff and Defendant No.1 to that extent is void.

25. In view thereof, the question of granting specific performance of the Agreement as well as Addendum, as prayed for by the Plaintiff, does not arise. Therefore as correctly submitted by the learned Senior Advocate appearing for Defendant No.2, the Plaintiff has entirely failed to make out a prima facie case. The Plaintiff has not acquired any valid title for distribution rights of the film and therefore cannot claim an injunction against inter alia Defendant No.2. In view thereof, I am in complete agreement with the submissions advanced on behalf of Defendant No.2 that neither the alleged conduct of Defendant Nos.1 and 2 nor the correspondence entered into by and between the parties can assist the Plaintiff in making out a case of title, where none exists. In short, neither conduct alleged nor correspondence can create and/or confer any title on the Plaintiff. Any loss suffered by the Plaintiff is capable of being compensated in terms of money. On the other hand, if an injunction is granted staying the broadcasting of the film, heavy losses would be suffered by all the Defendants, which is impossible of being computed in terms of money as the film would lose its value with passage of time. Thus, the balance of convenience is overwhelmingly in favour of Defendant No.2 and against the Plaintiff.

26. In view of what is held hereinabove, the other defenses raised by the Defendants are not required to be decided at this stage. The above Notice of

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Motion is therefore, dismissed. However, there shall be no order as to costs. Defendant No.1 shall handover the amount received by it from the Plaintiff under the Goldmines Agreement dated 3^rdAugust, 2012 and the Addendum dated 11^thOctober, 2012, which the Plaintiff may accept without prejudice to its rights and contention in the Suit. The hearing of the Suit is expedited. It is clarified that the Suit shall be decided without being influenced by any of the observations made herein.

27. The Learned Senior Advocate appearing for the Plaintiff states that the ad-interim order be continued for a period of two weeks. In view thereof, the statement made by the Advocate for Defendant No. 3 at the ad-interim stage shall continue to be in force upto 25^thJuly, 2014.

( S.J.KATHAWALLA. J. )

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