The Delhi High Court vide its order dated January 5, 2018 (read order here) dismissed the review petition filed by Saregama India Limited (SIL) seeking review and recall of the judgement and decree dated August 12, 2016 in ISRA vs Chapter 25 Bar & Restaurant (CS (OS) 2068/ 2015).
Background:
- 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.
Justice S. Muralidhar observed that during the pendency of the suit CS (OS) 2068/2015, there was no pending application by SIL under Order 1 Rule 10 CPC . The Court further noted that in the review petition itself there was no assertion by SIL that it proposes to issue any licence to the very same defendant which is bound by the ex-parte decree passed by the Court (i.e. Chapter 25 bar and restaurant).
With regards to SIL’s assertion of its rights in the sound recordings forming subject matter of a decree, the Court noted that the decree was not binding on SIL since it was not party to the suit and therefore SIL was not precluded from asserting, in independent substantive proceeding, its rights qua its sound recordings. The Court further observed that if SIL’s application under Order 1 Rule 10 CPC was allowed it would cause genuine confusion as to who the Plaintiff would be since essentially SIL would claim its rights in the sound recordings qua everyone else including ISRA and would result in the court looking at a completely different cause of action with no supporting pleadings.
The Court thus declined SIL’s application under Order I Rule 10 CPC or entertain the review petition to recall the judgment and decree dated August 12, 2016 in CS (OS) No. 2068 of 2015 and reopen the entire suit and further stated that the better course would be to permit SIL to institute separate substantive proceedings in which it can assert its rights against whomsoever it wishes to assert such rights. The Court further clarified that such claims of SIL will be decided independent of the judgment and decree passed by the Court on August 12, 2016 in CS (OS) No. 2068 of 2015 to which SIL was not a party.
As pointed in my post here, the Copyright Amendment Act, 2012 is replete with flaws and ambiguities and several of its provisions are subject matter of constitutional challenges before several courts in India. It would be a herculean task to see these provisions on performers royalties see the light of effective implementation given the challenges posed by the abstruse manner in which the Copyright Amendment Act, 2012 has been drafted.
Image source: here
Hat tip: Mr. Sanjay Tandon, Managing Director, ISRA
