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2010 Supreme(Bom) 116
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE B.H. MARLAPALLE & THE HONOURABLE MRS. JUSTICE V.K. TAHILRAMANI
Music Choice India Private Limited
Versus
Phonographic Performance Limited
APPEAL NO. 150 OF 2009 IN SUIT NO. 2124 OF 2007
Decided on : 22-01-2010
For the Appellant:Janak Dwarkadas, Sr. Counsel a/w H.W. Kane, Rahul Kadam, Hiren Kamod, Advocates. For the Respondents:Dr. Virendra Tulzapurkar, Sr. Counsel, Amit Jamsandekar i/b Bilwala & Co., Advocates.
Headnote:Copy Rights Act, 1957 - Sections 30 and 31(1)(b) - Code of Civil Procedure, 1908, Order XXXIX, Rules 1 and 2 - Jurisdiction under - Contention, board meets once or twice but plaintiff’s appreciation of such rights not yet decided - Demand of plaintiff for rights very expensive - Amounting denial on reasonable payments - His application pending for long board has exclusive right to grant license - Broadcast other-wise will amount to infringement of defendants rights - Act a self sufficient and special statute - Court did not commit any illegality in declining exercise jurisdiction. - The Act is a special statute and it is a self sufficient piece of legislation. Any order passed by the Board under Section 31(1)(b) is appealable before this Court under Section 72 therein. The Board is headed by a retired Judge of the High Court or a person eligible to be appointed as a Judge of the High Court. The Bench of the Board consisting at least three members and in case of different opinion, a view of majority of the members would prevail. What is prayed by the plaintiff in the suit filed by it before the trial Judge is nothing short of compulsory licence within the meaning of Section 31(1)(b) of the Act while its application for the very same purpose is pending before the Board, a statutory authority. Thus, the relief prayed for in the suit is impliedly a relief for grant of compulsory licence which authority is exclusively vested with the Board. Such a relief cannot be granted by the Civil Court and therefore, the trial Judge was right in holding that the suit was not maintainable, as this Court on its original side lacks jurisdiction. The jurisdiction exclusively lies with the Board. At the same time, contentions of the plaintiff that it has a vested right or a statutory right for a compulsory licence cannot be accepted. It has a right to apply for a licence under Section 31(l)(b) and in a given case, right to broadcast culminates only after such a licence is granted. In a way, it is a contractual right regulated by a statutory authority and by entertaining the suit for the relief prayed for, undoubtedly, the provisions of Chapters IX, XI and XIII and other relevant provisions of the Act would be frustrated. The contentions that the defendant has been dictating terms or it cannot be allowed to dictate the terms and therefore, the law must step in to the rescue of the plaintiff cannot be a ground to entertain the suit and the only remedy available to the plaintiff as per the scheme of the Act is to prosecute its application pending before the Board for a compulsory licence. What is not provided by a Statute which is a complete code of itself, cannot be read in the judgment of the Supreme Court. The jurisdiction of the Civil Court cannot be allowed to be invoked to short circuit the statutory process of licensing and therefore, the Court would lack in its jurisdiction to entertain the suit. In that view of the matter, the trial Judge has stated that the relief prayed in the suit was innocuous or may be it is innovative. Court does not find any fault in the said observations.
For the reasons set out herein, this appeal must fail and the same is hereby dismissed. Court confirms the impugned order passed by the trial Court to the extent it holds that it does not have jurisdiction to try the suit and the suit is dismissed for want of jurisdiction.
B.H. MARALAPALLE, J.
1. Heard Shri. Dwarkadas, learned Senior Counsel for the Appellant / Plaintiff with Mr.
H.W. Kane, Mr. Rahul Kadam, Mr. Hiren Kamod and Dr. Tulzapurkar, learned Senior Counsel with Mr. Amit Jamsandekar.
2. Admit.
3. Respondent waives service.
4. By consent of the parties, paper book dispensed with and the Appeal has been heard finally.
5. This Appeal arisesfrom the common Judgment and Order dated 22.01.2009 rendered in Suit Nos. 2124 of 2007 and 2283 of 2007 wherein it is held that the trial Court had no jurisdiction to try the suit and the suits were dismissed for want of Court’s inherent jurisdiction. The Plaintiffs were directed to proceed before the Copyright Board with liberty to make such application as deemed fit for expedition or for grant of interim relief in their pending application. It was left to the Board to consider such an application, if made, on merits.
6. The Appellant had filed suit No. 2124 of 2007. The Appellant is a private limited company incorporated under the provisions of the Companies Act, 1956 and its main object is to carry on the business of receiving, producing, acquiring, broadcasting, communicating, telecasting various entertainment and entertainment related content and programmers. The Defendant is a company incorporated under the Companies Act, 1956 and has been registered as a Collecting Society under Section 33(3) of the Copyright Act, 1957 ('The Act' for short) to carry on the business of issuing licenses inter alia to broadcast / communicate to the public sound recordings.
7. The Plaintiff proposes to launch a 24 hour music channel in India, playing only music embodied in sound recordings accompanied by static graphics displayed on the screen via the local operators of Satellite, Cable and Internet platforms. It made an application to the Ministry of Information and Broadcasting. The Plaintiff claims to have obtained license under section 30 of the Act. It negotiated with the Defendant for broadcasting the sound recording in its repertoire and claims to have such a written proposal to the Defendant on 04.07.2006. It appears that the Defendant, via email dated 07.07.2006 informed the Plaintiff of offering it via DTH platform by charging royalty fee based on certain percentage of the end user price i.e price paid by the subscriber. The Plaintiff did not respond till March, 2007 and on 30.03.2007, it submitted a proposal to the Defendant to pay on the basis of revenue. By its letter dated 12.04.2007, the Plaintiff pointed out that the demand for payment of royalty at the rate of 50% of the end user price was very high and it offered royalty for the first year at 4% of Prorated Net Profit with a cap of 7% of Prorated Net Profits. There was no response from the Defendant and therefore, on 04.07.2009, the Plaintiff made an application under section 31(1)(b) of the Act to the Copyright Board (the 'Board' for short) at New Delhi for a compulsory license to communicate the sound recording in the repertoire of the Defendant to the public by broadcast and subject to payment to the Defendant on such compensation and on such terms and conditions as the Copyright Board would consider reasonable, just and equitable.
8. On 19.07.2007, the Plaintiff filed a suit on the original side of this Court and prayed for the following reliefs :
a) That it may be ordered and declared by this Hon’ble Court that the Plaintiff is entitled to a license to broadcast the present and future sound recording of the Defendant on payment to the Defendant such royalty and / or compensation and subject to such terms and conditions as the Copyright Board may determine upon the Plaintiff’s applications dated 4th July, 2007 and / or such application that may be made by the Plaintiff from time to time for compulsory license or otherwise.
b) That the Defendant, its directors, servants and agents be restrained by a permanent order and injunction of this Hon’ble Court from interfering with the Plai
