The Delhi High Court vide its order dated February 9, 2018 (read order here) dismissed the review petition filed by Super Cassettes Industries Pvt. Ltd (SCIPL) seeking review and recall of the judgement and decree dated August 12, 2016 in ISRA vs Chapter 25 Bar & Restaurant (CS (OS) 2068/ 2015).
As covered in my post here, The Delhi High Court had vide order dated January 5, 2018 dismissed an identical review petition filed by Saregama India Limited (SIL) seeking review and recall of the August 12, 2016 judgement.
For ease of reference, the background to the dispute is reiterated below:
- August 12, 2016- In the suit filed by ISRA vs Chapter 25 Bar & Restaurant (CS (OS) 2068/ 2015), the Delhi High Court passed an ex-parte judgement and decree and issued a permanent injunction order against the defendant resto-bar restraining them from communicating to the public, ISRA’s repertoire comprising of performer’s performances of all its members and that of its sister societies which ISRA is allowed to administer in India, without paying royalties to and obtaining a clearance from ISRA. No appeal was filed by Chapter 25 (read order here).
- May 17, 2017-Single bench of Delhi High Court passed identical orders in CS (COMM) No. 1547/ 2016 [ISRA vs Deepak Arora) & CS (COMM) No. 1624/ 2016) [ISRA vs A.D. Singh & Ors] vide which the Single judge allowed the applications under Order XXIII Rule 3 of CPC filed by ISRA and the respective defendants in those suits and recorded the settlement entered into between them and decreed the suit in terms of the settlement (read orders here and here).
- November 2, 2017- Appeal filed by Saregama India Limited and Super Cassettes Industries Pvt. Ltd against ISRA- The Division Bench in its judgment dated November 2, 2017 in RFA (OS) (Comm.) 16/2017 etc. was, inter alia, of the view that the settlement arrived at vide order dated May 17, 2017 between the parties to the suits “involves injury to the property of the Appellants”. Since the Appellants through their applications under Order I Rule 10 CPC had pointed out that their rights were being adversely affected by the settlement being arrived at between the parties, the learned Single Judge was obliged to examine whether the settlement was lawful or unlawful or void or voidable. Since that question had not been considered at all by the learned Single Judge, the Division Bench set aside the settlement recorded and the decree passed in terms thereof by the order dated May 17, 2017 of the learned Single Judge and restored to the file of the learned Single Judge for a fresh determination, the applications both under Order XXIII Rule 3 CPC as far as Appellants’ applications under Order I Rule 10 CPC. (Read order here)
- Appeal by SIL and SCIPL: SIL and SCIPL filed appeals before the division bench of Delhi HC assailing the judgment and decree dated August 12, 2016. Both the said Appellants placed reliance on a judgment dated November 2, 2017 passed by the Division Bench in RFA (OS) (Comm) 16/2017 (Saregama India Ltd. v. Indian Singers’ Rights Association) and batch (read order here).
- November 16, 2017– The Division Bench in its order dated November 16, 2017 (Read order here) observed that the Appellants before it i.e. SIL and SCIPL were not parties to the suit but in view of the judgment dated November 2, 2017 in RFA (OS) (Comm.) 16/2017, they “should seek recourse of the remedy of review and approach the learned Single Judge at the first instance.”
- Review petition by SIL and SCIPL: Review petition was filed pursuant to the leave granted under order dated November 16, 2017 in RFA (OS) No. 87 of 2016 and batch.
In the present review petition filed by SCIPL, learned Senior Counsel Mr. Amit Sibal appearing for SCIPL referred to the order passed by the Delhi High Court on January 4, 2018 in the matter of The Indian Singers’ Rights Association v/s Amit Kumar Chauhan & Anr (Read order here) where the pendency of similar suits as well as the present review petition was noted and it was directed that all the said suits “as well as other suits/ proceedings aforesaid” should be listed before the same bench on March 22, 2018. Mr. Sibal submitted that SCIPL contemplated filing an application before the learned Single Judge who passed the said order seeking clarification whether the said direction also applied to the present review petition. The Delhi High Court however rejected Mr. Sibal’s submission and stated that a review petition will have to be decided by the same learned judge who passed the order of which the review is sought, unless the said judge has ceased to be a judge of the court. Justice Muralidhar further observed that “The order dated 4th January 2018 in CS (Comm) 886 of 2017 cannot, therefore, be understood as requiring the listing of this review petition before some other learned Judge. In any event, that would be a futile exercise since any other Judge before whom this petition is listed would be constrained, in terms of the extant Rules, to require its listing before this Bench. Consequently, this review petition is required to be decided only by this Court and that is what this Court now proceeds to do.”
With respect to the second issue on whether the present review petition should be dismissed in view of the order passed by the Delhi Court on January 5, 2018 in an identical prayer by Saregama India Limited, the court held “This Court finds no difference in the prayers made by SIL and SCIPL as far as seeking review of the judgment and decree dated 12th August 2016 in the present suit is concerned. While there may a difference in the scope and extent of the rights in sound recordings asserted by SCIPL and SIL, or for that matter ISRA, the clarification already issued by this Court in its order dated 5th January 2018 in Review Petition No.7 of 2018 of SIL will apply equally to SCIPL. The Court is of the view that the said clarification, which this Court proposes to reiterate hereafter more than adequately protects the rights and contentions of SCIPL.”
With regards to SCIPL’s plea to be made a necessary party to the suit, the Court once again held that during the pendency of the suit CS (OS) 2068/2015, there was no pending application by SCIPL under Order 1 Rule 10 CPC seeking impleadment. There was therefore no occasion for the Court in its judgment and decree dated 12th August 2016 to determine whether SCIPL was a necessary or proper party to the suit.
The Court further clarified that the judgment and decree dated 12th August 2016 passed by the Delhi High Court in the present suit is not binding on SCIPL since SCIPL was not a party to it. SCIPL, therefore, is not precluded from asserting, in independent substantive proceedings, its rights qua the sound recordings that formed the subject matter of the suit. Even if SCIPL proposes in the future to issue licences to the Defendant in the suit qua the sound recordings in question, the judgment and decree dated 12th August 2016 will not preclude SCIPL from initiating independent substantive proceedings to assert such right or defending such right in proceedings that may be instituted against it. The Court held that it would decide such claim in accordance with law independent of the judgment and decree passed by the Court on August 12, 2016 in CS (OS) No. 2068 of 2015. This will include proceedings initiated by SCIPL against ISRA or vice versa.
In view of the aforementioned clarifications, the Court declined SCIPL’s petition to review and recall the judgement and decree dated August 12, 2016 in CS(OS) No. 2068 of 2015.
Image source: here
Hat tip: Mr. Sanjay Tandon, Managing Director, ISRA