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TMI Blog2013 (4) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents herein and Mr Amit Mehra are the sons of late Mr Prakash Mehra. 3. On 24th August 2011, the petitioner entered into a Coproduction Agreement for remake of the said film 'Zanjeer' with Flying Turtle Films (FTF) and started working on the script of the remake. In the recitals at page 22 of the said agreement entered into between the petitioner and M/s FTF, it was recorded that the petitioner had represented to FTF that it holds the rights to remake and was desirous of remaking a motion picture viz. ''Zanjeer''. It was recited that the rights of the said film were earlier with the renowned film maker/producer the late Mr Prakash Mehra, who was the father of Mr Amit Mehra, being the Director of the petitioner. 4. On 1st November 2011, an article came to be published in Bombay Times stating that Amit Mehra was planning to remake of the film ''Zanjeer'' and was currently looking to tie up with the right production house for his dream project. On 3rd November 2011, another article came to be published in Hindustan Times Cafe in which Mr Amit Mehra claimed to be holding the remake rights and was remaking the film and was working on the script for over 11 months. It was also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Amitabh Bachchan, Jaya Bhaduri, Pran, Ajit and others. "Intellectual Property Rights" shall mean any and all forms of intellectual property including but not limited to copyrights, patents, trademarks, designs, digital rights and all other analogous rights as are commonly understood under applicable Laws in India and other jurisdiction and Ancillary Rights. SCOPE OF AGREEMENT : It is has been unconditionally and irrevocably agreed upon by the parties herein that PMP has agreed to sell to AMPL the remake rights in Hindi and Telugu of the original film only for a period of 4 years from execution of this Agreement or shall subsist for one year after release of the New Film, whichever is earlier. INVESTMENT AND CONSIDERATION : 1.1.1. Further, it is also agreed upon by an between the said parties herein that in consideration of acquiring the rights of the original Hindi film 'Zanjeer' to remake the same in Hindi and Telugu by the same name, AMPL will pay PMP an consideration of Rs.4,10,00,000/only (Rupees Four Crore Ten Lacs Only) to acquire the remake rights of the original film 'Zanjeer' for Hindi and Telugu. 1.1.4. The entire consideration as mentioned in clause 1.1.2 will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle PMP to receive the entire balance consideration within a period of 15 days from the default, these rights being without prejudice to PMP's rights in law for breach of contract. 2.4. PMP hereby agrees that it has not and shall not grant or assign to any other person the remake in Telugu and Hindi language in respect of the film or any part thereof and in any other Indian language and non Indian language for a term of 4 years from execution of this agreement or 1 year from release of the new film whichever is earlier. 2.5. AMPL, FTF and RE shall be the sole and exclusive authors and the Producers of the new film. The new film shall be a new Intellectual property of AMPL in perpetuity. This will be shared / exploited / owned jointly by AMPL, Reliance Big Entertainment Private Limited and Flying Turtle Films pursuant to their respective Agreements with AMPL. 2.6 "Remake rights" shall mean the right to make a New Film in Hindi and Telugu languages based on the original Film. The Remake Rights shall include only the following rights : iii) All intellectual property rights and rights in the negatives of the New Film. 3. On and from the execution of this Deed : (a) AMPL shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner in which Mr Amit Mehra was going about trying to remake 'Sharabi', another film of Prakash Mehra Productions (PMP) and stated that ''Zanjeer'' was an exception and that rights were given to Amit Mehra for 'Zanjeer' only because the first respondent wanted him to be successful and he was already too deep into the project. On 23rd March 2012, petitioner paid the second installment of Rs.28,00,000/to the respondents. On 26th March 2012, news item appeared in the newspapers stating that the storywriters had claimed moral rights in the screenplay of the said film and claimed that their permission for use of the original script was not obtained for the 'remake'. 11. By letter dated 29th March 2012, the petitioner informed the respondents that the petitioner had acquired the remake rights of the film ''Zanjeer'' from Prakash Mehra Productions (PMP) on the representation that the said rights were free from any lien, claim or mortgage and that PMP had a clear title to assign the same in favour of the petitioner. It was further stated that petitioner had come across various news reports whereby the writers of the said film Mr Salim Khan and Mr Javed Akhtar were claiming Copyrights in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing production on the film remake. 15. By letter dated 23rd April 2012, the petitioner referred to the letter dated 16th April 2012 by which respondents were called upon to provide the petitioner the agreements/letters/any other communications executed between PMP and Mr Salim Khan and Mr Javed Akhtar independently or jointly. The petitioner invited the attention of the respondents to the notice dated 16th April 2012 received from the Advocate of Mr Salim Khan and Mr Javed Akhtar and called upon the respondents to provide the petitioner with a response to each of the allegations/claims made by Mr Salim Khan and Mr Javed Akhtar under the said notice. The petitioner called upon the respondents to provide all necessary papers/documents to show that the respondents had rights assigned in their favour from Mr Salim Khan and Mr Javed Akhtar or that Mr Salim Khan and Mr Javed Akhtar were commissioned by the respondents to write the screenplay of the said original film. The petitioner contended that they were not liable to pay any further amounts to the respondents as per the agreement dated 24th January 2012. Petitioner also called upon the respondents to show their ownership in the scre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Javed Akhtar, the respondents alleged that the letter addressed by the Advocate of Mr Salim Khan and Mr Javed Akhtar contains false and frivolous allegations untenable in law and were issued without basis and any documentary evidence in support thereof. The respondents reiterated that all rights including but not limiting to all the intellectual property rights pertaining to the said film ''Zanjeer'' vest in the producer of the film i.e. PMP, through its sole proprietor Mr Prakash Mehra and upon his death, the same has vested in his legal heirs and any suggestion to the contrary was false. The respondents informed that if any proceedings were initiated by the said Mr Salim Khan and Mr Javed Akhtar before any authority, the same would be defended by the respondents. By letter dated 6th June 2012, the Advocate of the respondents informed the Advocate of the petitioner that they were obtaining instructions from the respondents in respect of the letters dated 23rd May 2012 and in the mean time, denied each and every contention contained in the said letter dated 23rd May 2012. 20. By letter dated 18th June 2012, the respondents through their Advocate addressed to the petitioner's Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 2012, the respondents filed petition under Section 9 of the Arbitration and Conciliation Act 1996 in this Court for temporary injunction (ARBP(L) No.786/12). By an order dated 28th June 2012, this Court appointed Mr K.D.Parekh, Senior Advocate as sole arbitrator to decide the disputes between the parties arising out of the agreement dated 24th January 2012 and directed that the said application filed under Section 9 be treated as application under Section 17 of the Arbitration and Conciliation Act, 1996. This Court directed the learned arbitrator to make an award expeditiously. Without prejudice to the rights and contentions of the petitioner, this Court recorded the undertaking of the petitioner to deposit an amount of Rs.48 lacs with the Prothonotary and Senior Master within one week from the date of the said order with a direction to the Prothonotary and Senior Master to invest the same in Fixed Deposit of nationalized bank. All contentions of both the parties were kept open. 24. On 16th July 2012, the learned sole arbitrator disposed of the said application under Section 17 of the Arbitration and Conciliation Act 1996 and held that balance of convenience was in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quities in their favour in view of the present order. Needless to add, the above Petition/Appeal is only admitted and the interim order passed is always subject to the final orders passed. The question therefore of the Petitioner/Appellant claiming any equity in their favour does not arise. Place this petition for hearing and final disposal on 12th September, 2012. 27. The petition was thereafter finally heard by this Court at length. Both the parties also filed their written submissions. 28. Mr. Tulzapurkar, the learned counsel for the appellant submits as under : (a) Mr. Salim Khan and Mr. Javed Aktar (the said writers) who are admittedly the story / screenplay writers of the original film 'Zanjeer'. by their Advocates' legal notice dated 16.4.2012 addressed to Amit Mehra and to PMP (At Exhibit "F", page 43 of the compilation), recorded that the said writers held the copy right in the literary work of the original film 'Zanjeer', that except for authorizing PMP to use the writers' literary work in the one single film 'Zanjeer', the writers had retained all other rights therein and claimed ownership of the rights in the literary works which had not been assigned at any time by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title being involved therein. That Agreement was not an Agreement for transfer of rights in respect of the underlying literary works at all. (g) The quality, nature, character and extent of knowledge of all the three brothers on the question of ownership of title to the underlying literary works was at all times the same. (h) Relying upon Section 14 of Sale of Goods Act, it is submitted that Section 14 of the Sale of Goods Act has three clauses (a), (b) and (c). Clause (a) which deals with the implied condition on the part of the seller that he has a right to sell the goods, and clause (b) which provides for an implied warranty by the seller that the buyer shall have and enjoy quiet possession of the goods, are absolute in terms, unlike clause (c) which is subject to knowledge of the buyer of any charge or encumbrance in favour of a third party. It is submitted that In this case, clauses (a) and (b) are attracted which do not provide for any escape to the seller on the ground of any alleged knowledge of the buyer as regards lack of right to sell the goods or that the buyer may not enjoy quiet possession of the goods. Even if the buyer has knowledge of these factors, the seller i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f PMP / the heirs of PMP to the underlying works. The Respondents have not accepted or admitted that PMP / the heirs of PMP did not have title or that there is a defect in their title. On the contrary, they have repeatedly asserted in the correspondence and the affidavits filed in court on oath, that PMP / the heirs of Prakash Mehra had and have complete and valid title to the underlying works. (m) Even if the purchaser under a contract has knowledge of any defect in the title of the vendor, that does not absolve the vendor from making good his representation of title, and if the vendor fails to do so, he can be held liable for such failure to make good his representation. (n) It is completely untenable and contrary to law to hold that since the Petitioner chose to continue with the Agreement, the Petitioner is bound to make payment in terms of clause 2.2 of the Agreement. The Petitioner is entitled to seek a diminution or extinction of the consideration payable under the Agreement and also further damages, and therefore, he cannot be called upon to go on making payment in terms of clause 2.2 of the Agreement to the Respondents without the Respondents performing their reciprocal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents must possess right to transfer copyrights in such underlying works. The learned senior counsel placed reliance upon the definition of 'Works' under Section 2(y)(i) of the Copyrights Act. The learned senior counsel submits that under the provisions of Copyrights Act, there is a separate copyright for cinematograph film and for literary work. He submitted that Mr Salim Khan and Mr Javed Akhtar had claimed copyrights in literary work and not in the film as such. It is submitted that according to the claims made by Mr Salim Khan and Mr Javed Akhtar, the right was given by them to PMP only to make one film 'Zanjeer' based on such literary work. The learned senior counsel placed reliance on relevant Sections viz. Section 2(y), Section 13, Section 14(a)(a) and (d), Section 13(4), Section 2(d), Section 17, 18, 19, Section 30 and Section 30(a) in support of his plea that the producer in cinematograph film does not get any copyright in literary work. It is submitted that as per the claims made by Mr Salim Khan and Mr Javed Akhtar, their copyright in the literary work continued even on production of the original film 'Zanjeer' subject to agreement between them and M/s PMP. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents had asserted the rights. The respondents are bound to make good their rights in favour of the petitioner. The learned senior counsel submits that even in surrejoinder filed by the respondents, the respondents have asserted their ownership rights in the film. There is no automatic vesting of rights unless the contract is in writing as per the provisions of Section 17(c ) or assignment or license. It is submitted that unless material is produced by the respondents that Mr Salim Khan and Mr Javed Akhtar transferred or divested their rights in underlying work in favour of M/s PMP, it would be presumed that no such right in copyrights in literary work is assigned in their favour by Mr Salim Khan and Mr Javed Akhtar. 30. The learned senior counsel submits that in case of breach of warranty by the seller, buyer has right in diminution or extinction of price with a view to satisfy the claim of Mr Salim Khan and Mr Javed Akhtar. The learned arbitrator, however, misdirected the proceedings by not considering these two crucial aspects at all. It is submitted that the petitioner was not bound to terminate the contract, but can sue the seller for damages for breach of warranty. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight. (1) For the purposes of this Act," copyright" means the exclusive right, subject to the provisions of, this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely :- (a) in the case of a literary, dramatic or musical work, not being a computer programme. (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation ; (iii) to perform the work in public; or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in clauses (i) to (vi); (d) in the case of a cinematograph film , (i) to make a copy of the film, including a photograph of any image forming part thereof. (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless or whether such copy has been sold or given on hire on earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any work shall, among other things,indicate clearly the rights proposed to be assigned and the size of the work. (3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by parties. 31. Mr Tulzapurkar, the learned senor counsel placed reliance upon following Judgments in support of various pleas raised aforesaid which are extracted as under :- 1969 (3) Supreme Court Cases 120 ( Nathulal Vs. Phoolchand). Paragraphs 11 and 12. 11. Nathulal had expressly undertaken to have the revenue records rectified by securing the deletion of Chittarmal's name, and it was an implied condition of the contract that Nathulal will secure the sanction of the Collector to the transfer under Section 70(4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled till October 6, 1952 and the second condition was never fulfilled. We are unable to agree with Mr. Shroff that the repeal of the Madhya Bharat Act 66 of 1950 by the Madhya Pradesh L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 125 Ahmedbhooy Habibbhoy v.s Sir Dinshaw M. Petit and Ors.) In determining whether a title is so doubtful that a Court of Equity will not enforce it upon a purchaser, the ground of that determination must be the state of facts existing at the time the suit was brought. The quality of the title of the vendor is to be investigated as at the time it was last offered to the purchaser. If at that time there were facts, in controversy between the vendor and purchaser, of a kind which might be ascertained in an enquiry between them alone, in strictness, the quality of the title is found not as when it was last offered but as when the enquiry has been made. Therefore, the point which the Court has to decide is whether the title which the plaintiff (vendor) had to offer when the suit was filed was such a title as the Court would force upon a purchaser, and the decision of that point is not to be affected by the courage which the litigation may have been taken since the filing of the suit. It behoves Judges in India to be quite sure before foreing a title on a purchaser that it will not involve him in litigation at all, if that be possible, but at any rate in unsuccessful litigation. Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could lay all the proof adequately before the Court. AIR 1929 Bombay 361 (Bapu Shivaji V.s Kashiram Ghag) Page 363, 364. The basis of the present suit is that the defendants purported to transfer a oneanna share in the family property consisting of a khoti takshim to Ketkar, who transferred it to the plaintiff. The plaintiff's right to possession of this one anna share from the defendants has been finally declared by this Court in the judgment in Second Appeal No. 839 of 1918. That judgment is dated March 8, 1920. But when the plaintiff was put in possession or went to take possession, it was discovered that the defendants had not as a matter of fact the one anna share which they purported to convey. The one anna share was owned jointly by the four branches of Dolat, Shivaji, Daji, and Vithoji, each possessing three pies so that all that the defendants had the power to transfer was their three pies. Hence there is a failure of the title which they purported to convey, and the plaintiff is entitled to damages by reason of this defect in their title, and as it so happens that in this present case by reasons which need not be given in detail here, but owing to the adverse possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the khoti takehim of the village, they contracted with the buyer that that one anna takshim belonged to them exclusively, and that they had power to transfer it, and although the Ketkars themselves may not have endeavoured to enforce the contract, I can see no reason why the subsequent transferee from the Ketkars should not take measures to enforce this contract. The learned pleader for the respondent has referred to the case in Arunachala v. Ramasami and Subbaroya v. Rajagopala . In one of these cases Article 116 of the Indian Limitation Act was applied, and in another Article 97. That is a matter which does not make very much difference in the present case, as will be shown hereafter when I come to the question of limitation. The case Subbaroya v. Bajagopala is a case in point for several reasons. In that case A, who had a title to immovable property voidable at the option of C, sold it to B, and put B in possession thereafter. C then brought a suit against A and B, got a decree, and obtained possession thereof in execution. Thereupon the plaintiffs brought that suit to recover the amount which they had paid to the original vendor on the ground that the consideration for the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretion is distinct from that of adjudication. When the Deputy Registrar rejected the appellants application for rectification on the ground that the two marks are not deceptively similar, she did not use any discretion but adjudicated upon the rival contentions of the parities. It would be trite to say that exercise of discretion can arise in favour of a party when adjudication by the Registrar is against that party. In the present case, the Deputy Registrar adjudication was in fact in favour of the respondents, with the result that there was no occasion for the Deputy Registrar to exercise any discretion. If the Deputy Registrar had held that the two marks were deceptively similar (which she did not ) but that in exercise of her discretion she did not consider it necessary to pass an order for rectification , it could be said that the Deputy Registrar having exercised the discretion in favour of the respondents , interference with such discretion was not called for. Nothing of the kind can be said in the present case where in fact the Deputy Registrar has held that the two marks are not deceptively similar. In any event, this court having come to the conclusion that the two marks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commercial film, violated and/or infringed the plaintiffs' copyright in the T.V. serial "KYUN KI SAAS BHI KABHI BAHU THI"? (2) Have the plaintiffs' proved the defendants have infringed the plaintiffs' artistic work at Exhibit 'C, to the plaint? and (3) Have the plaintiff's proved that the defendants are guilty of passing off their reputation and goodwill in the T.V., serial, by misrepresenting the connection between the plaintiffs and the defendants arid thereby causing damage to the plaintiffs; and thereby defeating the plaintiffs' character/merchandising rights, etc.? 5. The first question, therefore, that requires consideration is whether the defendants' commercial is a copy of the plaintiffs' T.V. serial? The case of the plaintiffs has been that as owners of the copyright in the film and considering Section 14(d)(1) of the Copyright Act, the plaintiffs, as the owners of the copyright in the film, have an exclusive right to make a copy of the film including a photograph of any image forming part thereof. It is contended that unlike the U.K. and Australia Copyright Acts, the word 'copy' is not defined in the Indian Copyright Act and, therefore, recourse must be had to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifically and significantly absent in relation to a cinematographic film and sound recording and the exclusive right conferred by the latter sections is to copy the recording of that particular film/sound. The position becomes clear, it is contended; if the definition of infringing copy in relation to literary, dramatic or artistic work is contrasted with the definition of infringing copy in relation to cinematographic film and sound recording. Contrasting the two, in the former an infringing copy is the reproduction of the original copyrighted literary, dramatic, musical or artistic work. In the latter case, infringing copy is a copy of the film made from the copyrighted film or recording embodying the same sound recording from the copyrighted sound recording. The subsequent film/sound recording is not an infringing copy if it is not copied or made from the same, earlier recording. The expression 'to make a copy of the film', it is submitted, is to make a physical copy from the copyrighted film itself and not a reproduction of the copyrighted film, that is another film which merely resembles the copyrighted film. From the affidavits of Kumuda Rao and Shetty it is clear that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy' means (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means." Section 14 of the Copyright Act, 1957 for the purpose of the Act defines' 'copyright' to mean the exclusive right subject to the provisions of the Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely: (d) in the case of a cinematograph film: (i) to make a copy of the film, including a photograph of any image informing part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether which copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public. It will, therefore, the essential to find out as to the meaning of the word copy' in the absence of it being defined in the Act. Reference can be made to Copinger and Skone James on copyright, Thirteenth Edition, at paragraph 3.29, some portions of which may be reproduced: "......it has been stated that skill labour and judgment merely in the process of copying cannot, confer originality and the mere copyist cannot have protection of his copy. Particularly, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of another film is not included under Section 14(d)(i) and such other film, even though it resembles completely the copyrighted film, does not fall within the expression 'to make a copy of the film'. Therefore, if the film has been filmed or shot separately by a person and it resembles the earlier film, the subsequent film is not a copy of the first film and, therefore, does not amount to infringement of whole of the copyright of the first film. The position in the case of literary, dramatic or artistic work seems to be different. A narrow copyright protection is accorded to a film/sound recordings than for literary, dramatic or artistic work. The reason perhaps could be that they have to be original to satisfy the test of copyrightability, whereas the requirement of originality is absent for claiming copyright in cinematograph films/sound recordings. In Telmak Teleproducts (Aust.) Pty. Limited v. Bond International , the defendants made, an advertisement film for the same products as were contained in the plaintiffs' advertising film and the Court found that the products of the rivals (which were advertised) and the films were also similar. As the defendants, however, had made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mak Teleproducts (Aust.) Pty. Ltd. . It was thus held that unless there has been a copying of the whole or part of the plaintiffs' film itself, in the sense of a copying of the particular recording of that film, there cannot be any infringement of the copyright. The reshoot of the film cannot be said to be the copy of the film for the purposes of infringement. In Spelling Goldberg Production v. BBC Publishing Limited . The defendants had acquired possession of the plaintiffs' film and had made a physical copy of the plaintiffs' film. It was on these facts that the Court had held that it was a copy of the plaintiffs' film. Therefore, considering the terminology used in the Act the facts on record and the cases discussed it is clear that the defendants made their own film independently. The film of the defendants, therefore is not a copy and, therefore, would not amount to an infringement of the plaintiffs copyright in its film considering the language of Section 14(d) of the Copyright Act. 32. Mr D'vitre the learned senior counsel appearing for respondents on the other hand submits as under. The impugned order passed by the learned arbitrator is based on prima facie finding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share of profits. It is submitted that the petitioner had full access to the PMP documents which is clear from the letter dated 14th January 2012 addressed by the petitioner to Writers' Federation. Petitioner had made assertion with regard to unchallenged exercise of the remake rights by PMP to a South Indian producer which information was not given by the respondents. It is submitted that the petitioner had accepted and acknowledged title to authorize the remake of the film 'Zanjeer'. Petitioner had represented that they held the remake rights, satisfied themselves about PMP's rights to authorize a remake of the said film and had full access to all documents and records and having exercised the rights of remake claimed to have been transferred, such a party cannot later on turn around and deny or dispute such title or allege that the title is 'doubtful' and if it does so, it is clearly not acting bonafide. 34. It is submitted that in their statement of defence filed before the learned arbitrator, the petitioner itself has asserted that the rights under the agreement dated 24th January 2012 have been transferred to the petitioner on the date of execution thereof and only the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner, therefore cannot plead ignorance of knowledge of title of the respondents in the original film on a vague plea that Mr Amit Mehra and the petitioner are two separate entities and knowledge of Mr Amit Mehra, if any, on the title of PMP would not amount to knowledge of the petitioner. 38. The learned counsel submits that in the agreement, there is specific reference to "underlying rights" in regard to the new (remake) films, but no such reference at all in regard to the remake rights of the original film. The right to remake is to remake the film as a whole with its original title. The right to use the original name/title/brand goodwill is an important facet of the agreement. The script, story and dialogues of a film get embedded and subsumed into the film as part of its soundtrack. Under the said agreement, no separate rights are given in the literary work as a separate work apart from what is included in the film. The rights under the agreement relate to rights in the film qua film. 39. The learned senior counsel submits that before the third instalment fell due, and admittedly after substantial work on the script of the remake had been complete by the petitioner throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reason for nonpayment was not genuine or bonafide but was only a pretext particularly since the petitioner/Amit Mehra had full access to the documents of PMP and had satisfied themselves about PMP's right to authorize the remake. The third installment was due on 23rd May 2012. The petitioner defaulted in payment. The petitioner also asserted its refusal to pay any further installments unless the conditions imposed by him in correspondence were first met. Such conduct was entirely wrongful, based solely on a claim made by third parties. The claim of PMP visavis the third party script writers or viceversa in any event cannot be decided in the present arbitration proceedings, (they are not parties here). A mere claim by a third party cannot displace title or create doubts on rights. The petitioner's insistence that the respondents "establish their ownership" of the copyright in the film "'Zanjeer'" as a condition precedent for making the agreed contractual payments is a unilateral alteration of the express terms of the contract and a clear breach of its essential terms and conditions. In fact, the petitioner continued to exercise rights under the agreement and continued with the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an alleged breach of warranty of title can be claimed. 48. The learned counsel then submits that the consequence of nonproduction of documents by the seller (u/s 55 of the Transfer of Property Act) is not a breach of warranty of title under section 12 of the Sale of Goods Act. The two cannot be mixed up or confused. The doctrine of doubtful title (petitioner's case) is wholly inapplicable in the present case. The petitioner is not an unwilling purchaser at all. A purchaser who seeks further performance can never be an 'unwilling purchaser'. It is submitted that the 'Buyer' who accepts that full title has passed to it, there is no scope for the application of the doctrine of doubtful title. 49. The learned senior counsel appearing for the respondents then submits that the only rights transferred to the petitioners under the PMP Agreement are rights to remake the film as a whole. There has been no separate transfer of any underlying works. The 'underlying' works to the extent that they have been subsumed in the original film belong to the producer of the original film. In any case, the petitioners had the script and story, etc with them much before the PMP agreement and indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents. It is submitted that thus, no interference is warranted with the prima facie findings recorded by the learned arbitrator by this Court. It is submitted that no ground is made out for interference by this Court under Section 37 of the Arbitration Act. It is submitted that the learned arbitrator has property exercised his discretion and granted discretionary relief. Even if this Court would have decided otherwise if it were hearing Section 17 application, this Court shall not interfere with such proper exercise of discretion by the learned arbitrator. It is submitted that observations made by the learned arbitrator were only prima facie and can never be regarded as adjudications. 53. The learned senior counsel distinguished the judgments relied upon by Mr Tulzapurkar, the learned senior counsel appearing for the petitioner and placed reliance upon following judgments in support of his aforesaid submissions. The relevant paragraphs of the various judgments relied upon by the respondents are extracted as under : Supreme Court of India (1990) (2) ArbLR 399, Venkatachaliah, Ojha & Verma, JJ, Wander Ltd. & Anr. vs. Antox India (P.) Ltd. Paragraph 8 & 9. 8. On a consideration of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d., Vs. Orissa Manganese & Minerals (P.) Ltd. Paragraph 10 and 11 and 21. 10. Learned Counsel for O.M.M. Private Limited submitted that Section 9 leaves it to a party to approach the court for certain interim measures and it enables the court to pass orders by way of interim measures of protection in respect of the matters enumerated therein. Neither this Section nor the Act elsewhere has provided the conditions for grant of such interim protection leaving it to the court to exercise the jurisdiction vested in it as a court to adjudge whether any protective measure is called for. In that context, neither the provisions of the Code of civil Procedure nor the provisions of the Specific Relief Act can be kept out while the court considers the question whether on the facts of a case, any order by way of interim measure of protection should be granted. So, the court had necessarily to consider the balance of convenience, the question whether at least a triable issue arises if not the establishment of a prima facie case by the applicant before it and the other well known restrictions on the grant of interim orders, like the principle that a contract of personal service would not be spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines leased to O.M.M. Private Limited for a period of 10 years and its attempted abrupt termination by O.M.M. Private Limited and the dispute before the arbitrator would be the effect of the agreement and the right of O.M.M. Private Limited to terminate it prematurely in the circumstances of the case. So viewed, it was open to the court to pass an order by way of an interim measure of protection that the existing arrangement under the contract should be continued pending the resolution of the dispute by the arbitrator. May be, there is some force in this submission made on behalf of the Adhunik Steels. But, at the same time, whether an interim measure permitting Adhunik Steels to carry on the mining operations, an extraordinary measure in itself in the face of the attempted termination of the contract by O.M.M. Private Limited or the termination of the contract by O.M.M. Private Limited, could be granted or not, would again lead the court to a consideration of the classical rules for the grant of such an interim measure. Whether an interim mandatory injunction could be granted directing the continuance of the working of the contract, had to be considered in the light of the wellset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be proper pleading and also that opportunity be given to parties to adduce evidence to support such pleadings. We think this must be permitted in the interest of justice. Accordingly we set aside the decree of the court below and remand the case back to that court to enable the plaintiff to amend the pleadings within one month lime from the date on which the case is posted in the court below for the appearance of the parties. If no such amendment is sought the matter may be disposed of afresh without any further opportunity being given to adduce evidence." After remand the plaintiff filed I.A. 1692/82 for amendment of the plaint and sought to incorporate the following amendment to the pleadings: "The defendant sold that car to the plaintiff representing that he purchased car from Delhi for consideration. The plaintiff's information is that the said consideration was paid by the defendant from the amounts belonging to him remaining in Bank Deposit in the name of his wife in the Federal Bank, Kolencherry. But he had not obtained any title whatsoever so as to pass on such title to me. He did not make any claim of ownership over the car before the police at the time of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff has necessarily to plead that title over the car has been lost. We are of the view, this has not been pleaded or proved by the plaintiff. We noticed in the amendment petition it is stated that the defendant had not obtained any title whatsoever so as to pass on such title to the plaintiff and the defendant did not make any claim of ownership over the car before the police at the time of seizure of the car. Consequently plaintiff has lost the car. There is no pleading to the effect that plaintiff had lost title. In other words, we have to again proceed as if plaintiff has got title to the car. If plaintiff has got title and car was seized by the police no damages could be claimed from the defendant. The plaintiff is therefore bound by the findings of the earlier Division Bench. AIR 1981 Madras 303 ( Bhagyathammal Vs. Dhnabagyathammal & Ors.) Paragraph 4. 4. Before considering the, question of limitation, I may as well notice whether the Plaintiff would be. entitled to any damages at . all. This point appears to be concluded against the appellant by a decision of this court.. rendered by Kailasam J. as he then was, in Ramalinga Padayachi v. Natesa, MANU/TN/0207/1967 : AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnadha. MANU/TN/0163/1931 : AIR1932Mad1 ." 1975 The Bombay Law Reporter 361 (Vol.LXXVII), Smt. Taramati Anantrai Parekh Vs. Gangaram Shamdas pg. 368369. Mr. Chhaya has attacked the maintainability of the suit as filed by the appellant on yet another ground. He argues that even if the said truck was agreed to be sold by the firm of Messrs. Parekh & Co. and not by Respondent No.2 in her individual capacity, none of them had made out a marketable title free from reasonable doubut because a third party, that is to say, Messrs, Bholaram Mulchand had laid claim to the said truck and not only filed a suit for declaration as to the ownership of the said truck in which suit both the appellant and Respondent No.2 were impleaded along with Respondent No.1 but that Messrs. Bholaram Mulchand had even succeeded in getting a Receiver appointed albeit for a very short time, after which the said truck was returned to respondent No.1 from whose possession it had been taken by the Receiver. These facts, it was argued, showed that the title of the vendors of the truck was doubtful and respondent No.1 was, therefore, entitled to repudiate the contract of sale which he then purported to do by his wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s what he said in his deposition before the City Civil Court. ".... Statements made therein are correct. The statement in the opening portion of paragraph 4 of the said affidavit that I have made all necessary inquiries to ascertain the ownership of the said truck and the marketable title is correct. I had made those inquiries from broker Nanji. The statement in paragraph 3 of the said affidavit that the sale to me is complete and neither the other defendants to the other suit nor the plaintiffs to the said suit have any right, title or interest over the said truck and that there is now a balance of Rs.20,000/left to be paid by me is correct." In the face of these admissions, respondent No.1 cannot be heard to say that a marketable title had not been made out or that it was not free from doubt. We cannot agree that merely because a suit is filed by some third party it can be at once contended that there is no marketable title free from reasonable doubt. If we were to accede to such a dangerous proposition it would mean that all that a dishonest litigant had to do was to arrange for a frivolous suit to be filed and then put forth a plea that the title to what he has agreed to purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the Judgment of this Court in case of Star India (supra) in support of his plea that the copyrights in underlying works and copyrights in the film are different and distinct. 55. The learned senior counsel submits that the submission of the respondents that the time was an essence of the contract and the petitioner therefore, could not have refused to pay the third installment, has no substance. It is submitted that both the parties were bound to comply with their part of respective obligations. It is submitted that petitioner had given sufficient time to the respondents to produce title documents before due date of third installment, however respondents did not timely perform their part of obligation to clear title and thus, petitioner was not bound to release the third installment. It is submitted that the termination of contract on the ground of alleged default on the part of the petitioner was thus, totally illegal and contrary to the terms of contract. In so far as allegation of the respondents that Mr Salim Khan and Mr Javed Akhtar were put up by the petitioner with a view to make false and frivolous claims against the respondents is concerned, the learned senior counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates that it includes any work produced by any process analogous to cinematography. Definition of 'work' indicates that literary, dramatic, musical or artistic work is different than a cinematograph film. Section 13 makes it clear that there is a separate copyright in respect of original literary, dramatic, musical and artistic works and in respect of cinematograph film. On reading of Section 14(1)(a) and (d) of the said Act, it makes clear that acts for copyrights in literary work and cinematograph film are different. On conjoint reading of the definition of 'author' and 'work' with Section 13 and 14 of the said Act, it clear that there is separate copyright in respect of the literary work and also in respect of cinematograph film. I am also supported by the view taken by this Court on this issue in case of Star India Pvt. Ltd. (supra). This court in the said judgment has held that position in the case of literary, dramatic or artistic work seems to be different. A narrow copyright protection is accorded to a film/sound recordings than for literary, dramatic or artistic work. In my view, there can be separate author for each work as defined under the provisions of said Copyright ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of such underlying works for one film i.e. 'Zanjeer' produced by M/s PMP, no other right in perpetuity was created by the writers in favour of M/s PMP. Even in the correspondence addressed by the respondents to the writers through their Advocate, the respondents have not asserted and/or produced any document in support of their claim that M/s PMP were assigned any such copyright in the literary work by the writers in their favour for more than one film. On the contrary, the respondents were asking the writers to produce document in support of their claim. 62. In my view, in the facts of this case thus, it becomes very relevant to see whether prima facie, ownership in copyright of the writers in the underlying work was assigned in favour of M/s PMP which in turn, was assigned in favour of the petitioner by the said M/s PMP. Perusal of the record indicates that though the petitioner had repeatedly called upon the respondents to produce any such writing showing assignment of copyright in respect of the literary work by the writers in favour of M/s PMP, instead of producing any such document, the objection raised by the respondents was that Mr Amit Mehra who was one of the signat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Advocates, it is clear that the said writers claimed to be authors of the screenplay, story and dialogues which were literary and/or dramatic works that is the screenplay and were owners of the copyright therein. The writers have also claimed that M/s PMP retains copyright ownership over the cinematograph film 'Zanjeer' released in 1973 and the writers retain copyright ownership over the screenplay of the film being a separate work, which had not been assigned by the writers at any point of time either to M/s PMP or any other person. It was also claimed that no rights in the screenplay when used apart from 1973 'Zanjeer' vest in M/s PMP. The writers also claimed that their ownership of the said screenplay was additionally established by virtue of the fact that they independently licensed the remake of the said film in the past and thus acting consistently to the knowledge of M/s PMP as owners of copyright in the said screenplay. The writers claimed that they had licensed to remake the said film for use in a Tamil language film titled " Sirithu Vazha Vendum" released in 1974 under license to Tamil Production Company Uthayam Productions. In the said letter which was also addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther installments did not arise. The petitioner clarified that the petitioner did not have any intention of making any default of payment of consideration but can not be expected to make payment of further installment of consideration before the claims of such writers were resolved by the respondents. By letter dated 6th June 2012 to the writers, the respondents once again vaguely denied the allegations made by the writers and asserted their rights in the film 'Zanjeer'. In reply to letter dated 23rd May 2012 addressed by the petitioner, the respondents in their Advocate's letter dated 18th June 2012, contended that the respondents were not under any obligation under the said agreement to respond to the demand or to satisfy the claims of the petitioner. It is contended that the parties had entered into such agreement exclusively on the basis of representation made by the petitioner. By the said notice, respondents terminated the said agreement and informed that on the date of the said notice, all the rights in the said film stood reverted back to M/s PMP including the right to remake the said film and no right of the said film would exist in the petitioner. 64. On perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt time gap between the claim made by the writers and the due date of third installment to enable the respondents to produce any such writing purporting to assign the copyright in the literary work by the writers in favour of M/s PMP. In my prima facie view, the petitioner was not in any breach in demanding the requisite documents to satisfy itself as to whether there was the assignment of copyrights by the writers in favour of M/s PMP much before the due date of the third installment before making any further payment to the respondents. In my prima facie view, both the parties were under obligation to comply with their respective part of obligation. In my prima facie view, if the respondents though repeatedly were called upon to furnish copy of writer's communications/letters purporting to transfer and/or assign copyright of the literary work of writers in favour of M/s PMP, did not furnish, petitioner was not liable to make the payment of the third installment. In these circumstances, in my prima facie view it would not amount to any breach of obligation on the part of the petitioner to pay the third installment. The demand of document by the petitioner as a condition precedent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch underlying work separately. Perusal of Clause2.6.11 and 3(d) of the agreement, in my prima facie view, indicates that respondents have made representation that they had ownership right and right to assign such rights in favour of the petitioner. Even in the correspondence as well in the affidavit filed by the respondents in the present proceedings, the respondents have asserted their rights. The agreement also prima facie indicates that the remake rights assigned under the agreement dated 24th January 2012 by M/s PMP in favour of the petitioner was inclusive of the right to remake the said film in Telugu and Hindi language based on the story, storyline, script, screenplay, dialogues etc. of the film 'Zanjeer'. In my prima facie view, the petitioner was entitled to remake the film in Telugu and Hindi language based on the screenplay in respect of which the copyright was claimed by the writers of the screenplay and thus respondents were liable to make the title good in respect thereof which a separate copyright under the provisions of Copyrights Act. 68. I am not inclined to accept the submission made by Mr D'vitre, the learned senior counsel for the respondents that under the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterim measures but has rendered a finding that there was no express representation contained in the agreement dated 24th January 2012 made by the respondents herein. The learned arbitrator also recorded a finding that obligation to make payment of installment as set out in the agreement, was unconditional and if petitioner herein had chosen to perform its obligation under contract and to keep the contract alive, the petitioner at the same time was liable to make payment of installment. The learned arbitrator came to conclusion that something more than mere claim by third party was required for the petitioner to suspend its obligations. 71. On perusal of the impugned order passed by the learned arbitrator, in my view it is clear that various findings are recorded by the learned arbitrator on merits of the rival claims which could not have been rendered in exercise of the discretion by the learned arbitrator. In my view, Mr Tulzapurkar, the learned senior counsel is right in his submission that the learned arbitrator has nor exercised his discretion but has rendered a finding on merits which he was not empowered to while deciding application under Section 17 of the Arbitration Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26th July 2012, the interim order passed by the learned arbitrator restraining the petitioner from remaking the film 'Zanjeer' has been stayed subject to petitioner depositing the amount agreed in this Court as far back as on 26th July 2012, the said interim order passed by this Court has not been challenged by the respondents and has been implemented by the parties. The petitioner has proceeded with the production of the said film and has substantially completed the same. It is made clear that this Court is not granting any relief in favour of the petitioner considering any equity in their favour, but on its own merits by taking prima facie view as recorded in the order. 75. In my view, the balance of convenience is in favour of the petitioner. If the respondents ultimately succeeds in the arbitration proceedings, respondents would be compensated by award of compensation by the learned arbitrator. It is not in dispute that claims made by the writers before the association against the petitioner as well as respondents is pending which is for a large amount. The respondents have not even produced the document of title in respect of copyrights in the literary work till today. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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