2005 Supreme(Bom) 622

IN THE HIGH COURT OF BOMBAY
Deshmukh and Co. (Publishers) Pvt. Ltd
Versus
Avinash Vishnu Khandekar
Decided On Date: 04/05/05

Headnote:Civil Procedure Code, 1908 - Order 39, Rules 1 and 2 - Grant of temporary injunction. - Principles for granting or refusing temporary injunction is explained. - Law of injunction is well-settled that granting or refusing to grant temporary injunction is governed by three well-established principles, (a) Whether prima facie case has been made out; (b) Whether balance of convenience is in their favour; and (c) whether petitioner will suffer irreparable injury, if the temporary injunction is not granted. The party who seeks aid of injunction must show that the act complained of is in violation of his rights and whether there is fair and substantial question to be decided by the parties and there is bona fide contention between the parties. If such contentions are available, then relief needs to be granted. It then becomes the duty of the Court to consider the material placed before granting or refusing to grant injunction and consider the documents if any, before an interim relief can be passed. The prima facie case does not mean a case to succeed but which fairly needs an enquiry. At the same time, while granting interim relief the Court has also to take into account whether the interim relief is claimed in the aid of final relief so as to maintain status quo ante or to preserve status of parties.

       Civil Procedure Code, 1908 - Order 39, Rules 1 and 2 and Order 43, Rule 1(r) - Appeal against order granting injunction. - If trial Court while granting injunction, exercised its discretion unreasonably or capriciously, then only appellate Court can interfere with discretion exercised by trial Court. - In dealing with the matter raised before it at the appellate stage, the Appellate Court would normally not be justified in interfering with the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion. If it appears to the Appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the Appellate Court to interfere with the trial Court’s exercise of discretion.

       Copyright Act, 1957 - Sections 18, 19 and 19-A - Copyright. - If consideration consist of payment of royalties for a share of profits then copyright is not assigned. - Copyright is multiple rights consisting of a bundle of different rights in the same work. Author of a copyright work either assigns the whole or part of his rights to others to exploit economically for a lumpsum consideration. In alternative, he may licence all or some of his rights to others usually on the basis of a royalty payment. An assignment may be general i.e., without limitations or an assignment may be subject to limitations. It may be for the whole term of the copyright or any part thereof. An assignment transfers an interest in, and deals with the copyright itself as provided under Section 14 of the Act, but licence does not convey the copyright but only grants a right to do something, which in the absence of licence would be unlawful. An assignment transfers title in the copyright, a licence merely permits certain things to be done by the licensee. The assignee being invested with the title in the copyright may reassign. The licence is personal, and therefore, not transferable or assignable without the grantors consent. Furthermore, the assignee can sue for infringement without joining the assignor. The licensee cannot sue in his own name for infringement of the copyright, since copyright belongs to the licensor. The copyright comprises of schedule rights which can be exercised independent of each other. The licence is a personal right which cannot be transferred except in certain circumstances. Licence is a right to do some positive act. Licence is a personal right and creates no more personal obligation between a licensor and licensee. The licence is generally revocable at the Will of the grantor. There are different kinds of licences. A licence may be exclusive or non-exclusive licence means a licence which confers on licenser or Licensee and persons authorised by him to the exclusion of all other persons (including the owner of the copyright) any right comprised in the copyright in a work. In the case of non-exclusive licence, the owner of copyright retains the right to grant licences to more than one person or to exercise it himself, Licence is a personal right and licensee may not always be entitled to make alterations to the terms.

       Perusal of agreement dated 19.5.1973 in general and clause 1 in particular clearly showed no indication that the copyright in the literary work of late Shri V.S. Khandekar was to remain the property of Late Shri R.J. Deshmukh or that it was to become his absolute property. Absence of words such as, "their successor and assigns etc." are also indications contrary to the concept of partial assignment. In absence of grant of "sole and exclusive license’ is also an additional factor to suggest that the agreement in question is merely a publishing agreement and could not be regarded as an assignment of copyright. In this case mutual reciprocal obligations are flowing from the terms of the agreement such as payment of royalty, giving of accounts, supply of copies to the author with restriction on the right of the publisher to distribute complimentary copies. If the consideration consists of payment of royalties or a share of profits instead of downright payment, then the copyright is not assigned. It would be a licence to publish and sell. In this case, payment of royalty instead of a sum of money paid down will also weigh heavily against partial assignment. The agreement dated 19.5.1973 had created non-exclusive licence in favour of R.J. Deshmukh.

       Proof of document - Formal proof of document. - The only person competent to give evidence on truthfulness of contents of documents, is writer thereof examined before Court. - Concession with respect to formal proof of document does not dispense with necessity to prove truth thereof. Mere no objection to formally exhibit documents neither amounts to an admission of document nor it can be treated as an admission of contents thereof. The only person competent to give evidence on the truthfulness of the contents of the documents is the writer thereof examined before the Court. No such writer was examined. Contents of Ex. 53 to 70 could not be said to have been proved by the plaintiffs.