M/s.Bharani Pictures Private Limited v. Sri Venkateswara Bakthi Channel

b) granting permanent injunction restraining the defendant their agents servants, each and every person or persons in any manner interfering with infringing the plaintiff's copy right in the Suit Films morefully described in Items 1 to 21 in the schedule hereunder inclusive of commercial, non-commercial, non- theatrical medias, world Television nights, world Video rights, world Satellite rights, Pay TV, Pay per view, Cable TV rights, DVD, VCD, LD. Internet and web based technology rights DTU (Direct to User) and DTH (Direct to Home) rights, and all other rights in whatsoever manner including the future scientific advancement and technological rights in respect of the Suit Films;

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c) directing the defendant to pay a sum of Rs.25,00,000/- (Rupees twenty five lakhs only) to the plaintiff together with interest at 12% per annum from the date of plaint till the date of realization;

2. PLAINTIFF'S CASE:

(i) The plaintiff is the copyright holder of the Telugu films

"Vipranarayana", starring A.Nageswara Rao, Dr.Bhanumathi and others and "Bhaktha Dhruva Markandeya", starring Shobhana, Rohini and others. They are referred to as the Suit Films.

(ii). It is the contention of the plaintiff that they are the producer of the Suit Films and the censor certificate issued by the censor board clearly states that the plaintiff is the producer of the aforesaid films. That apart, the plaintiff also possesses the certificate of the Film Chamber of Commerce.

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(iii). The present director of plaintiff Company was a practicing Doctor in the United States of America and was therefore not able to attend to all the work connected with the Suit Films. Dr.Bhanumathi was also otherwise preoccupied and could not manage the same. Thereafter, she had passed away. Taking advantage of the fact that there was no one to manage the Suit Films, several unscrupulous persons, including the defendant, had started infringing on the copyright in respect of these Suit Films. The plaintiff would state that they have not assigned the copyright to anyone.

(iv) The plaintiff would further submit that without obtaining an assignment from the plaintiff, the defendant has been telecasting the Suit Films at regular intervals in their television channel. This constrained the plaintiff to issue a legal notice dated 28.02.2019, informing the defendant that without obtaining the assignment, the films were being telecast and they had to desist from telecasting the same.

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(v) Prior to the issue of the legal notice, the plaintiff had sent a letter dated 24.01.2018 and caused a publication in one issue of Telugu Daily "Andhra Prabha" having circulation through the State of Andhra Pradesh and Telegana, informing the general public that they held the copyright in respect of the Suit Films. However, despite the above letter and the legal notice, the defendant is continuing to exploit the Suit Films by telecasting it over 30 times in various television channels.

(vi) The plaintiff would submit that while telecasting the Suit Films in television channel, in the case of prime-time telecast, the films have spread over two to three hours and would easily fetch a sum of Rs.5,00,000/- for every telecast. Therefore, the plaintiff would contend that though they are entitled to higher damages they were restricting the claim to a sum of Rs.25 Lakhs. Hence the suit in question.

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3. WRITTEN STATEMENT OF THE DEFENDANT:

The defendant would contend that on 05.09.2016, they had entered into an agreement with one Yadagiri for assignment of the satellite rights in respect of 38 Telugu films, which included the Suit Films. The defendant would submit that on 13.03.2002, the plaintiff had entered into a non-exclusive satellite agreement with Yadagiri with reference to the transfer of satellite rights in respect of the movie

"Vipranarayana". The said agreement was entered into by Dr.Bhanumathi and the agreement was for a period of 30 years. It is this right that had been purchased by the defendant on 05.09.2016. The defendant is a bonafide purchaser for value. The defendant had also taken a plea that the suit is bad for non-joinder of necessary parties inasmuch as Yadagiri had not been made a party to the proceedings. The written statement is rather silent about the second film, Bhaktha Dhruva Markandeya. Therefore, the defendant sought

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to have the suit dismissed.

4. ISSUES:

This Court has framed the following issues vide order dated

30.06.2021:

i. Whether the plaintiff is the rightful copyright owner of the Suit Films "Vipranarayana" and

"Bhaktha Dhuruva Markandeya" and whether the plaintiff is entitled for the relief of declaration as prayed for?

ii. Whether the suit is bad for non-joinder of necessary party?

iii.Whether the plaintiff had executed any deed in favour of the defendant or any other person in respect of broadcast of the two films

"Vipranarayana" and "Bhaktha Dhuruva Markandeya?"

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iv. Whether the plaintiff is entitled for the relief of permanent injunction?

v. Whether the plaintiff is entitled for any damages from the `defendants?

vi. What other relief the plaintiff is entitled for?

5. On the side of the plaintiff, the Finance Manager of the Plaintiff Company had adduced the evidence as P.W1 and has marked Exs.P1 to P14. On the side of the defendant, one K.Ramakrishna, the Senior Producer (In-charge of the administration department) of the defendant channel, has adduced the evidence, as D.W1 and Exs.D1 to D6 have been marked to prove their case. P.W1 has adduced evidence to the effect that it is they who have ownership over the copyright of the Suit Films, and they have not assigned the same to any third party.

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6. From the evidence of P.W1, it is seen that the plaintiff was originally a partnership firm in the name and style of "Bharani Pictures". The partnership was formed under a Partnership Deed dated 25.03.1948 between Dr.Bhanumathi and her husband, Ramakrishna. Thereafter, the partnership had undergone changes, as a result of which, new deeds had been executed. Ex.P1 is the Partnership Deed dated 25.03.1948. The partnership has been lastly been re-constituted under a Reconstitution Deed dated 04.01.2005. On the date of this reconstitution, the partners were Dr.Palluvai R.Bharani, Bridget Bharani Paluvai, Dr.Meenakshi Bharani Paluvai and Venkatesh Bharani Paluvai and M/s.Bharani Hospital Private Limited. On 22.04.2015, under Ex.P8, it is seen that the plaintiff Company came to be incorporated. It is the partnership firm that was reconstituted as a private limited Company after dissolving the firm, Bharani Pictures. Thereafter, the plaintiff Company has given a public notice in "Andhra Bhoomi" dated 17.08.2016 in which they

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have informed the general public that the plaintiff Company is the absolute copyright owner of the Telugu films which have been set out in the publication, which were 21 in number including the Suit Films. The public notice had clearly set out the rights of the plaintiff to the said films. The partners of the erstwhile Bharani Pictures had also informed the general public that the plaintiff Company, which is the absolute copyright owner of all the Tamil and Telugu Films that they have produced, has exclusive rights to distribute, exhibit and exploit the copyright of all commercial and non-commercial electronic media rights etc., giving out the manner in which the said right was to be exploited. Under Ex.P11-Legal notice dated 28.02.2019, the plaintiff informed the defendant that they are the copyright owners of the Suit Films and calling upon them to stop telecasting these films. The notice has been received by the defendant. There is no reply to this notice.

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7. During the cross examination P.W1, though the suit is also for damages, no question whatsoever has been asked in cross relating to the entitlement of the plaintiff to damages. Further, the defendant have themselves admitted that the assignment in favour of Yadagiri was not known to the plaintiff, which is evidenced from Question No.10 put to P.W.1.

8. D.W.1 in his cross examination would submit that they have replied to Ex.P.11 notice and would state that they have filed the reply. However, this reply has not been filed. In response to Question No.12, D.W.1 would concede that they have not provided any information to the plaintiff about the assignment of the Suit Films in their favour. The witness was specifically asked the question as to where the original document, namely, Ex.D5, was available and he had also admitted that Ex.D5 is not a photocopy, but it is only a printout of a photocopy taken from the phone. The defendant has

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fairly conceded that they have not filed the original of Ex.D5, which is the primary document that the defendant relies upon to show that there has been an assignment by the plaintiff in their favour.

SUBMISSIONS OF THE PLAINTIFF:

9. The plaintiff has filed the written arguments and had also made the oral submissions. The learned senior counsel appearing for the plaintiff would submit that the plaintiff is the copyright holder of the Suit Films and they have not assigned the copyright of the Suit Films to any third party. The learned counsel would submit that Ex.D2 is a forged document. Ex.D2 is the agreement between the defendant and Yadagiri dated 05.09.2016. The document evidencing the agreement between the defendant and Yadagiri (Ex.D2) is only a photocopy and the original document has not been filed into Court. Further, the non exclusive agreements in respect of the Suit Films are marked as Exs.D5 and D6 dated 13.03.2002 and 08.07.2010 respectively. However, in the assignment deed, Ex.D2, there is no

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reference to these non-exclusive agreements. The learned senior counsel would therefore submit that in the absence of proof of the assignment in favour of Yadagiri. the defendant's defense has to necessarily be rejected and the plaintiff, by filing the documents, have proved their copyright ownership to the Suit Films. Since the defendant has been telecasting the Suit Films without the permission of the plaintiff and earning revenue through the telecast, the plaintiff is also entitled to damages. He therefore submit that since there is an infringement, the defendant has to be put on terms and the plaintiff has to receive the compensation for damages.

SUBMISSIONS OF THE DEFENDANT:

10. Mr.Arun C.Mohan, learned counsel appearing on behalf of the defendant, would submit that the suit is primarily bad for non- joinder of necessary parties inasmuch as Yadagiri is not a party to the proceedings. Further, the plaintiff has not pleaded deceitful intent by the plaintiff in order to claim damages. That apart, the plaintiff has

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not been able to prove the liquidated damages. He would submit that though in the written statement, the defendant had denied the plaintiff's right to claim damages, D.W.1 has not been questioned in this regard.

11. In reply, Mr.P.L.Narayanan, learned Senior Counsel appearing for the plaintiff would draw the attention of this Court to the proof affidavit of the plaintiff, wherein the plaintiff in paragraph 14 has stated as follows:-

"14. I respectfully submit that the Plaintiff has now learnt that the Defendant has illegally exploited the copyrights in the Suit Films by more than 30 telecasts in various TV Channels and if the prime time earning of the TV Channel for one film spread over two to three hours will be Rs.5,00,000/- of rupees. and thirty time telecasting would fetch. Rs.1,50,00,000/- and the Plaintiff values the internet exploitation without break in You Tube i.e., any time clicking and viewing the earning is estimated at Rs.2,00,00,000/-. In

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all the loss of earning to the Plaintiff is estimated at Rs.3,05,00,000/- which the Defendant is liable to pay to the Plaintiff. However, the Plaintiff is restricting the suit claim to Rs.25,00,000/- since chances of recovery of the full amount of loss and damages suffered by the Plaintiff looks indeed bleak.

Though the plaintiff has categorically pleaded and deposed that Suit Films have been telecast 30 times in various TV channels and the prime time earning of the TV Channel for one film spread over two or three hours of the telecast would be a sum of Rs.5,00,000/-, the total revenue earned would be a sum of Rs.1,50,00,000/-. D.W1, in reply to question No.22, had responded that the Suit Films have been telecast once. Therefore, he would submit that the plaintiff on this admission is entitled to a sum of Rs.10,00,000/-. In support of the same, he would rely upon the judgment reported in (2016) 12 SCC

288 [MUDDASANI VENKATA NARSAIAH (DEAD) THROUGH

LEGAL REPRESENTATIVES VS MUDDASANI SAROJANA]

wherein the Hon'ble Supreme Court has held that where there is no

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effective cross examination with reference to a particular factum, then it has to be presumed that the said fact is accepted by the other side.

12. Heard the learned counsels on either side and perused the materials available on record.

13. DISCUSSIONS:

i) From the pleadings and the evidence, it is clear that the defendant has admitted that the plaintiff is the copyright holder in respect of the Suit Films. The defense to the plaintiff's case is that the plaintiff has assigned the copyright to one Yadagiri from whom the defendant has obtained the assignment of the copyright. To prove the contention that they have obtained the copyright from the assignee, Yadagiri, the defendant would rely upon Exs. D2, D5 and D6. D5 is purported to be a non-exclusive satellite agreement, which has been entered into between Bharani Pictures and the said Yadagiri. Bharani Pictures is stated to be represented by Dr.Bhanumathi Ramakrishna

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and Bharani Pictures is described as a proprietary concern. The document that has been marked is not even a photocopy of the original, which is evident from the answer to question No.15 of D.W1, wherein a question has been put to the witness that D5 has been photographed on the phone and the print out taken therein. D.W1 has admitted to the same and added that they also have a photocopy. That apart, the document is said to have been executed by Dr.Bhanumathi Ramakrishna as Proprietor of Bharani Pictures. This agreement is dated 31.03.2002. From Ex.P1 dated 25.03.1948 to Ex.P7 dated 04.01.2015, it is seen that Bharani Pictures has all along been only a partnership firm and not a proprietary concern. Therefore, it is clear that this document is a fabricated one. Therefore, no rights would flow to the said Yadagiri under this agreement. Ex.D6 which is another Non-Exclusive Satellite Agreement with reference to the film "Bhaktha Dhruva Markandeya"

and two other movies, is executed by one Vinayakarao in favour of Yadagiri. There is no document to show as to how Vinayakarao had

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obtained a right to the said film when the original copyright holder is the plaintiff.

ii) Further, Ex.D2, which is the agreement entered into between the defendant and the said Yadagiri, does not contain any mention to these non exclusive agreements, which would clearly show that these two agreements are fabricated ones. Therefore, the plaintiff has clearly established that the defendant has telecast the Suit Films without obtaining assignment from the original copyright holder. Further, the defendant has not been able to show proof as to how Yadagiri claims to be an Assignee of the Copyright in respect of the Suit Films.

(iii) Therefore, considering the fact that the defendant has admitted the copyright ownership of the plaintiff to the Suit Films and taking into account the fact that the defendant has not been able to

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prove that as to how their assignor had obtained the right over the Suit Films, the plaintiff is entitled to the declaration and issue No.(1) is answered in favour of the plaintiff.

(iv) As the defendant has not been able to prove that Yadagiri had obtained the assignment of the Suit Films in his favour and further, this Court has also come to the conclusion that non exclusive agreements are fabricated documents, the suit is not hit by non- joinder of necessary parties. Further, the defendant has not taken any steps to examine the said Yadagiri and this Court has also drawn an adverse inference on the same. Therefore, issue No.(2) is answered against the defendant.

(v) Since this Court has come to the conclusion that the plaintiff is the original copyright holder of the Suit Films, they are entitled to permanent injunction as prayed for and issue no.(4) is therefore

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answered in favour of the plaintiff.

(vi) The plaintiff has categorically stated that they have not assigned the rights to any other persons for telecasting the Suit Films and the defendant has failed to prove that there is an assignment by the plaintiff in respect of the Suit Films, Issue No.(3) is answered in favour of the plaintiff by holding that the plaintiff has not executed any deed in favour of the defendant or any other persons in respect of the Suit Films.

(viii) As regards the relief of damages, the plaintiff, in the plaint as also in their evidence, have stated that the defendant has earned income from the advertisements during the telecast of the Suit Films. This statement has not been denied either in the written statement or by cross examining P.W1. As stated earlier, there is no cross examination on this aspect. The plaintiff, during the cross examination of D.W1, has been able to elicit that they have telecast

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both the films once each. Although the plaintiff has stated that per telecast, the defendant would have earned an income of Rs.5,00,000/-, the same has not been substantiated by evidence. However, it is a fact that income is earned from the advertisements that are constantly played during the telecast of movies. The fact that the defendant has telecast the Suit Films without the permission of the original copyright holder, and since they claim a right on the basis of a forged document, the defendant is definitely liable to pay the damages to the plaintiff. This Court feels that a sum of Rs.2,00,000/- per film would be adequate damages to be paid to the plaintiff. Therefore, the suit is decreed as prayed for in respect of the prayer for declaration and injunction and a sum of Rs.4,00,000/- is awarded as damages together with interest @ 9% per annum from the date of plaint till the date of realization together with costs of the suit.

17.10.2023

Internet : Yes/No Index :Yes/No Speaking / Non-Speaking srn

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P.T. ASHA. J,

srn

Pre-delivery Judgment in C.S.(Comm Div). No. 381 of 2019

17.10.2023

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