High Court of Calcutta

Saregama India Limited Vs. Sky B (Bangla) Private Limited

MANU/WB/0333/2020

28.02.2020

Intellectual Property Rights

At an interlocutory stage, it cannot be said that, Plaintiff did not have a chance of success at the trial

In a suit for infringement of copyright, the Plaintiff has sought interim reliefs by present application. Learned senior advocate appearing for the Plaintiff has submitted that, the Plaintiff is the owner of a large repertoire of literary, musical and other related works and sound recording in respect of several songs played in several films. He has submitted that, the Defendant conducted various musical programs in its television channel and wrongfully and illegally caused performance of the songs of the Plaintiff therefore infringing the copyright belonging to the Plaintiff.

Learned senior advocate appearing for the Plaintiff has relied upon Section 55 (2) of the Copyright Act, 1957 and submitted that, since, the plaintiff is the owner and has the copyright of the sound recording, lyrics and music composed in the songs, there is a presumption existing in favour of the plaintiff.

The Plaintiff claims that, the Plaintiff entered into agreements with various producers and production houses by virtue of which the plaintiff became the owner of the sound recordings and literary and musical works in the sound recordings forming part of the films produced by such producers and production houses. The plaintiff claims on such basis that, the Plaintiff has the sole right of production, reproduction, sale, use and performance including broad casting, throughout the world, by any and every means whatsoever, of the records of the work of which the plaintiff is the owner. According to the Plaintiff, the defendant conducted various musical programmes in the television channel run by the defendant infringing the copyright of the plaintiff. In such television programmes, the Defendant wrongfully and illegally used exploited and caused performance of the songs of the Plaintiff as also the musical and literary and lyrical works in such songs.

In the course of hearing of the present petition, the Defendant has questioned the ownership of the Plaintiff in respect of the songs over which the Plaintiff claims copyright. The Plaintiff has produced sample deeds claiming to be deeds of ownership by virtue of which the plaintiff has copyright over the songs. According to the Defendant, the clauses of such deeds do not constitute assignment of ownership of the copyright in favour of the plaintiff.

Section 61 of the Act of 1957 lays down that, in every civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee, the owner of the copyright shall, unless the court otherwise directs, be made a defendant. It also allows such owner to have the right to dispute the claim of the Plaintiff as the exclusive licensee. In the facts of the present case, the Plaintiff claims to be the owner of the copyright by virtue of agreements entered into with the owners. A similar agreement as that obtaining in the present case, was construed in Gramophone Company of India Ltd. and there, it was held that, at an interlocutory stage, it cannot be said that, the Plaintiff did not have a chance of success at the trial. On the strength of the ratio of Gramophone Company of India Ltd. vs. Shanti Films Corporation and others, at this stage therefore, it cannot be said that the suit is bad for non-joinder of parties and that the Plaintiff herein is not entitled to interim relief as prayed for.

Section 45 of Act of 1957, provides for entries in the register of copyrights. Section 48 of the Act of 1957 creates a rebuttable evidence of ownership in favour of a person whose name appears in the register of copyrights. A person not featuring in the register of copyrights cannot be said not to be the owner of such copyright at all. There may be instances where a person may not be registered in the register of copyrights, be the owner of the copyright. Where a person who does not feature in the register of copyrights, he has to prove his right through a process known to law. Section 49 of Act of 1957, allows correction of entries in the register of copyrights.

Section 31C of the Act of 1957 has been introduced with effect from June 21, 2012. It requires a person desirous of making a cover version to obtain the consent of the owner of the right. It also lays down various parameters which the person making a cover version has to follow. In the facts of the present case, the Defendant did not obtain any permission under Section 31C of the Act of 1957 from the Plaintiff nor followed the parameters laid down under such provisions of law.

The Plaintiff having made out a prima facie case and the balance of convenience and inconvenience being in favour of the Plaintiff and the claim for damages not being ascertainable at this stage, it would be appropriate to grant interim protection to the Plaintiff as prayed for.

Relevant

Gramophone Company of India Limited vs. Shanti Films Corporation and others MANU/WB/0008/1997

Tags : Infringement Interim protection Grant

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National Consumer Disputes Redressal Commission

Rameshwar Lal Sharma Vs. Director Kothari Hospital and Ors.

MANU/CF/0226/2020

28.02.2020

Consumer

Court can intervene only when Complainant succeeds in showing that Fora below has wrongly exercised its jurisdiction

Case of the Petitioner is that the Petitioner/Complainant's wife was admitted in the Respondent Hospital on 12th December, 2010 as her great toe and 2nd & 3rd toes of the right foot were infected with gangrene. The Complainant states that, the portion between the knee and heel of her right foot was in normal condition and not infected with gangrene. The great toe and the 2nd & 3rd toe were amputated and she was administered antibiotics. Later, as gangrene spread above the heel, her right foot was amputated. Alleging medical negligence, he filed a Consumer Complaint before the District Forum.

The Respondents/Opposite Parties contested the case that, there was no medical negligence in the case. The patient's great tow and 2nd and 3rd toes were infected with gangrene and were, therefore, amputated. For the portion above the heel antibiotic treatment was started, apart from other procedures.

The District Forum dismissed the Complaint on the basis of Medical Board report. Aggrieved by the order of the District Forum, an Appeal was filed before the State Commission. The State Commission came to the conclusion that the District Forum had not erred in relying upon the Medical Board report. The Appellant/Complainant could not submit any proof to the contrary. Therefore, the Appeal was dismissed. Against the concurrent findings of both the Fora below, the Petitioner has filed the present Revision Petition before this Commission.

Jurisdiction of this Commission under Section 21 (b) of Consumer Protection Act, 1986 is very limited. This Commission is not required to re-appreciate and reassess the evidences and reach to its own conclusion. The Court can intervene only when the Petitioner succeeds in showing that the Fora below have wrongly exercised its jurisdiction or there is a miscarriage of justice.

Hon'ble Supreme Court in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. held that, The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their or exceeded their jurisdiction by acting illegally or with material irregularity.

The District Forum rightly relied upon the report of the Medical Board duly consisting of a Surgeon, Medical jurist and Physician. The Medical Board examined the treatment documents of the Complainant's wife. The Medical Board held that there was no negligence in the conduct of surgery for removal of the toes, which were infected with gangrene and incision and drainage of the soft tissue infection above the heel was also justified as per surgical norms. Initially amputation above the heel was not justified as it was not gangrenous. The Respondent took the first line of treatment with incision and drainage of the soft tissue and administrating antibiotics. She was given proper treatment and there was no negligence on the part of the treating Surgeon. Every possible measure was taken to save her limb from higher level amputation, for which deficiency of service/negligence cannot be attributed to the Respondents.

There is no reason to disagree with the concurrent findings of both the Fora below. There is no infirmity or illegality in the impugned order, warranting interference under Section 21 (b) of Act, 1986. Revision Petition is therefore dismissed.

Relevant

Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. MANU/SC/0849/2016

Tags : Negligence Concurrent findings Jurisdiction

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Supreme Court

Samta Naidu vs The State Of Madhya Pradesh

MANU/SC/0243/2020

02.03.2020

Civil

Second complaint lie only on fresh facts or on previous facts, only if, a special case is made out

In the facts of present case, the father of the complainant passed away. It is submitted that, on 2nd November, 2010, vehicle maruti -800 owned complainant's father has been sold by the Respondent by putting forged signatures of the complainant's father. It is submitted that Respondent Nos. 1 and 2, in order to sell the vehicle, has forged the signature of Late G.S. Naidu knowing fully well that he has passed away. The documents which have been forged by the Respondents have been subsequently used for getting the benefit in the form of sale consideration of the vehicle. The act of the Respondents squarely covers the offences punishable under Sections 409, 420, 467, 468 and 471 of the Indian Penal Code, 1860 (IPC) and therefore, the Respondents are liable to be punished accordingly. The Complaint came up before the Judicial Magistrate but the same was dismissed.

The complainant being aggrieved filed Revision before Additional Sessions Judge. On 02.08.2014, the Judicial Magistrate First Class Jabalpur took cognizance in respect of offence punishable under Section 420 of IPC but rejected the Complaint with respect to other offences, which order was challenged by the Complainant by preferring Criminal Revision. Said Revision was allowed by the 9th Additional Sessions Judge, by his order directing the Magistrate to reconsider the documents available on record and to pass appropriate order for taking cognizance in regard to appropriate offences. This order was challenged by the Appellants by filing Criminal Revision in the High Court.

The High Court, thus, found no infirmity warranting interference and dismissed both the Revision Petitions. Relying on the decision of this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, he submitted that the High Court was in error in rejecting the Revision Applications. Learned Senior Advocate for the respondent-complainant also relied upon the same decision and other decisions referred to by the High Court, to submit that as new material was found, the second Complaint was rightly considered and taken cognizance of.

The principal decision relied upon by both sides is one rendered by a Bench of three Judges of this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar. The law declared in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar a has consistently been followed, it was observed: “It is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out”.

The application of the principles laid down in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar shows that “a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance”. It was further laid down that “if the dismissal of the complaint was not on merit but on default of the complainant to be present, there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code of Criminal Procedure, 1973 (CrPC) was on merits the position could be different”.

If the facts of the present matter are considered in the light of these principles, it is clear that paragraphs 3, 4 and 5 in the first complaint contained the basic allegations that the vehicle belonging to the father was sold after the death of the father; that signatures of the father on Form 29 and 30 were forged; that signatures on the affidavit annexed with Form 29 and 30 were also forged; and that on the basis of such forged documents the benefit of “sale consideration of the vehicle” was derived by the accused. The order passed by the Judicial Magistrate First Class, shows that after considering the evidence and documents produced on behalf of the complainant, no prima facie case was found and the complaint was rejected under Section 203 of the CrPC.

The stand taken before the Revisional Court discloses that, at that stage some new facts were said to be in possession of the complainant and as such liberty was sought to withdraw the Revision with further liberty to file a fresh complaint. The liberty was not given and it was observed that if there were new facts, the complainant, in law would be entitled to present a new complaint and as such there was no need of any permission from the Court. The Revisional Court was definitely referring to the law laid down by this Court on the basis of the principles in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar. Thereafter, a complaint with new material in the form of a credit note and Registration Certificate was filed. The core allegations, however, remained the same. The only difference was that the second complaint referred to additional material in support of the basic allegations. Again, in terms of principle laid down in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar as amplified in Poonam Chand Jain and Anr. v. Fazru, nothing was stated as to why said additional material could not be obtained with reasonable diligence.

The instant matter is completely covered by the decision of this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar. The High Court was thus not justified in holding the second complaint to be maintainable. Appeals allowed.

Relevant

Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar MANU/SC/0149/1961
, Poonam Chand Jain and Anr. v. Fazru MANU/SC/0904/2004

Tags : Forged documents Second complaint Maintainability

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Supreme Court

Union Bank of India Vs. Rajat Infrastructure Pvt. Ltd. and Ors.

MANU/SC/0249/2020

02.03.2020

Banking

DRAT cannot entertain appeal under Section 18 of SARFAESI Act without insisting on pre- deposit

The basic facts are that the Respondent No. 1 stood guarantee and mortgaged its property for repayment of loan availed by Respondent Nos. 4 and 5. The property was put to auction and Respondent Nos. 2 and 3 who are the alleged leaseholders in possession of the property are the highest bidders for a sum of Rs. 65.52 crores. The main objection of the Respondent No. 1 to the sale is that, it is for a low amount and there is collusion between the officers of the Bank and the auction purchaser. The Petitioner challenged the order of the DRAT before the High Court.

By the said impugned order the High Court had relegated the Appellant before it i.e. Respondent No. 1 herein to avail the statutory remedy of appeal before the Debt Recovery Appellate Tribunal. we are not going into the merits of the case in view of the fact that we agree with the High Court that the matter must be decided by the DRAT. The only issue is whether the High Court was right in holding that no pre-deposit was required.

This Court in the case of Narayan Chandra Ghosh v. UCO Bank and Ors., held that keeping in view the language of the Section even if the amount or debt due had not been determined by the DRT, the appeal could not be entertained by the DRAT without insisting on pre-deposit.

Thus, there is an absolute bar to the entertainment of an appeal under Section 18 of the Act unless the condition precedent, as stipulated, is fulfilled. Unless the borrower makes, with the Appellate Tribunal, a pre-deposit of fifty per cent of the debt due from him or determined, an appeal under the said provision cannot be entertained by the Appellate Tribunal. The language of the said proviso is clear and admits of no ambiguity.

In view of the law laid down by this Court, present Court is clearly of the view that the observation made by the High Court was totally incorrect. A guarantor or a mortgagor, who has mortgaged its property to secure the repayment of the loan, stands on the same footing as a borrower and if he wants to file an appeal, he must comply with the terms of Section 18 of the Securitisation And Reconstruction Of Financial Assets And Reinforcement Of Security Interest Act, 2002 (SARFAESI Act).

Furthermore, the High Court has no powers akin to powers vested in this Court under Article 142 of the Constitution. The High Court cannot give directions which are contrary to law. Present Court set aside both the orders of the High Court in so far as they hold that pre-deposit is not required and allow the appeals. Present Court have not gone into the merits of the contentions raised by the parties which shall be decided by the DRAT when it entertains the appeal and is called upon to do so. The time given to the auction purchasers is extended.

Relevant

Narayan Chandra Ghosh v. UCO Bank and Ors. MANU/SC/0416/2011

Tags : Pre-deposit Requirement Entertainment Appeal

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Supreme Court

The Superintendent of Post Office, Bolangir Division, Bolangir, Odisha Vs. Jambu Kumar Jain and Ors.

MANU/SC/0240/2020

02.03.2020

Consumer

Certificate lost, stolen, mutilated, defaced or destroyed beyond recognition cannot be replaced by any post office

A Complaint was filed by the Respondent before the District Forum contending that, 88 Indira Vikas Patras ('IVP') of the denomination of Rs. 5000 each, purchased by the father of the complainant sometime during the period 1996 to 1998, were lost in the month of June, 2001. A police complaint was lodged alleging theft of those IVPs and thereafter by intimation, a request was made to the Superintendent of Post Offices, Bolangir to stop payment of any amount upon maturity of the IVPs without proper verification of the holder. It was further submitted that, despite demands made by the complainant, the value of the lost IVPs was not being made over by the Post Office to him and as such, there was deficiency in service on part of the Post Office.

With the aforesaid allegations, the following principal reliefs were claimed in the complaint that, The O.P. be directed to pay the maturity value of 88 numbers of IVP of Rs. 5,000 each denomination = Rs. 8,80,000 and due interest till final payment is made. A sum of Rs. 1,00,000 as claimed as compensation for deficiency in service and loss caused to the complaint and Rs. 10,000 is claimed towards the cost of litigation. The aforesaid complaint was allowed by the District forum vide its order. The Appellant being aggrieved filed Appeal before the State Commission, which was dismissed by the State Commission on the ground of non-prosecution.

In terms of Rule 5 of the Indira Vikas Patra Rules, 1986, IVPs could be purchased at any Post Office after payment in cash or by a Cheque/Pay Order or Demand Draft and no formal application was necessary for such purchase. As against payment made in Cash, the IVPs would be delivered immediately while in respect of payments made either through Cheque or Pay Order or Demand Draft, the same would be issued only after the encashment of any of those instruments. In terms of Rule 6(4), IVPs were transferable. According to Rule 7(1), if the Certificate was mutilated or defaced, the bearer would be entitled to have it replaced on payment of fee of rupee one but if the certificate was lost or stolen or mutilated or defaced or destroyed beyond recognition, in terms of Rule 7(2) it would not be replaced by any Post Office.

It is not in dispute that the IVPs in the present matter were purchased through cash. At no stage, the identity of the purchaser was thus disclosed or registered with the Department. In a situation, where the IVPs were purchased either through Cheque of Pay Order or Demand Draft, there would still be a possibility, through link evidence, to establish the identity of the purchaser but in case of a purchase through the modality of cash, there would be nothing on record which could establish the identity of the purchaser. It may be that there are no claims in respect of the IVPs in question but that does not mean that any person can claim maturity sum in respect of such IVPs and offer an indemnity.

The matter has to be considered purely from the perspective of the governing Rules. If in case the IVPs are lost/stolen or mutilated or defaced beyond recognition, the Rules are clear that they shall not be replaced by the Post Office. In the face of such statutory provision, the refusal on the part of the Department to entertain any request for maturity sum was absolutely right and justified. It can never be said that, there was deficiency on the part of the Department in rendering any service expected of them.

If the Department had refused to encash the Certificates upon presentation or even after encashment had refused to make the payment or had made short payment, there could still be a grievance about deficiency in service but if the Certificates themselves are lost and the identity of the initial holder could never be established through the record, the Department was well within its rights not to accept the prayer for return of the maturity sum.

In Central Government of India and Ors. v. Krishnaji Parvetesh Kulkarni, similar prayer made through a writ petition, was rejected by this Court with following observations: An IVP is akin to an ordinary currency note. It bears no name of the holder. Just as a lost currency note cannot be replaced, similarly the question of replacing a lost IVP does not arise. Rule 7(2) makes the position clear that a certificate lost, stolen, mutilated, defaced or destroyed beyond recognition will not be replaced by any post office. Similar is the position as regards the certificate which is either lost or stolen. Undisputedly, there was no challenge to the legality of the Rule 7(2). In the absence of a challenge to the provision, any direction should not really have been given. It is fundamental that no direction which is contrary to law can be given.

The District Forum and the National Commission completely erred in accepting the claim. The view taken by the National Commission is set aside. Appeal allowed.

Relevant

Central Government of India and Ors. v. Krishnaji Parvetesh Kulkarni MANU/SC/1843/2006

Tags : Deficiency Compensation Legality

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Supreme Court

Parvat Singh and Ors. Vs. State of Madhya Pradesh

MANU/SC/0246/2020

02.03.2020

Criminal

Statement recorded under Section 161 of CrPC can be used only to prove the contradictions and/or omissions

Feeling aggrieved and dissatisfied with the impugned judgment passed by the High Court by which the High Court has confirmed the conviction of the Appellants herein-original Accused Nos. 2 to 5 for the offences punishable under Section 302 r/w Section 149 of the Indian Penal Code, 1860 (IPC), the original Accused Nos. 2 to 5 have preferred the present appeal. Learned Senior Advocate appearing on behalf of all the Appellants submitted that, the High Court has not properly appreciated the fact that, the Trial Court convicted the Appellants solely relying upon the evidence/deposition of PW8.

The Appellants herein-original Accused Nos. 2 to 5 are convicted by the Learned Trial Court and the High Court solely relying upon the evidence/deposition of PW8 - Mullo Bai. It cannot be disputed that there can be a conviction relying upon the evidence/deposition of the sole witness. However, at the same time, the evidence/deposition of the sole witness can be relied upon, provided it is found to be trustworthy and reliable and there are no material contradictions and/or omissions and/or improvements in the case of the prosecution.

The deposition of PW8 is full of material contradictions and improvements so far as original Accused Nos. 2 to 5 is concerned. It is required to be noted that no other independent witness even named by PW8 has supported the case of the prosecution. As per the settled preposition of law a statement recorded under Section 161 of CrPC is inadmissible in evidence and cannot be relied upon or used to convict the Accused. As per the settled proposition of law, the statement recorded under Section 161 of CrPC can be used only to prove the contradictions and/or omissions. Therefore, the High Court has erred in relying upon the statement of PW8 recorded under Section 161 of CrPC while observing that the Appellants were having the lathis.

In the facts and circumstances of the case, there are material contradictions, omissions and/or improvements so far as the Appellants herein - original Accused Nos. 2 to 5 are concerned. Present Court is of the opinion that, it is not safe to convict the Appellants on the evidence of the sole witness of PW8. The benefit of material contradictions, omissions and improvements must go in favour of the Appellants herein. Therefore, as such the Appellants are entitled to be given benefit of doubt.

There are material contradictions and omissions so far as the Appellants - original Accused Nos. 2 to 5 are concerned. So far as the original Accused No. 1 is concerned, PW8 is consistent in her statement Under Section 161 Code of Criminal Procedure as well as in her deposition before the Court. There was a recovery of axe used in commission of the offence by Accused No. 1 at the instance of Accused No. 1. Under the circumstances, the case of the original Accused Nos. 2 to 5 is clearly distinguishable to that of original Accused No. 1.

The present appeal is allowed. The impugned judgment and order of conviction passed by the learned Trial Court and confirmed by the High Court convicting the Appellants herein - Accused Nos. 2 to 5 for the offence under Section 302 r/w Section 149 of the IPC are hereby quashed and set aside and the Appellants herein - original Accused Nos. 2 to 5 are acquitted of the charges for which they were tried.

Tags : Conviction Evidence Credibility

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