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2013 Supreme(Bom) 1772
HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, J.
Prince Pal Singh Tuli
Versus
Apoorva Lakhia & Another
Appeal from Order (ST) No.24947 of 2013 In Notice of Motion No. of 2012 In Suit No. 2642 of 2013 With CAAST/24948/2013
Decided on: 05-09-2013
For the Appellant: Filji Frederick along with Satish Chettiyar, Ms. Shivali Hisariya i/by
F.F. & Associates, Advocates.
For the Respondents:Janak Dwarkadas, Senior Advocate with Moazzam Khan, Ranjana Adhikari, Praeek Bagaria i/by Nishita Desai Associates, Advocates.
Headnote:Civil Procedure Code, 1908 - Order XXXIX, Rule 1 - Grant of temporary injunction. - In absence of prima facie case and balance of convenience in favour of applicant, temporary injunction cannot be granted. - The mandatory injunction and/or temporary injunction as sought on the basis of averments, is not made out at this stage. The foundation of the suit if revolving around prior consent or permission even "of whatsoever nature" just cannot be considered to grant the interim relief so prayed in view of the admitted position on record that the appellant/plaintiff was fully aware of alleged use of motorbike in the film, at least around July 2013. No such step was taken immediately. There are no specific dates on record about the date of use of motorbike and or its possession. By that time, the film/promos covering all medias have already been released the film clip/photographs and the Promo of the song.
The principle of prima facie case is not made out, unless the prayers as prayed for, are granted. Mere averments are not sufficient to accept the case of the appellant/ plaintiff, in the present facts and circumstances of the case. The balance of convenience, equity in no way supports the appellant/plaintiff’s averments and/or his case. The Court just cannot overlook commercial aspect of production of edited film at announced date and effects of release of songs in Promo and/or even latter point of time. It is difficult to dissect, in the present case at the instance of the appellant, the song and/or the scene in question. This itself covers the aspect of irreparable loss and injury and the conduct. The appellant, assuming for a moment, is got hurt because of his sentimentally attached motorbike has been used by the defendants without his permission, that itself cannot be the reason to overlook the background so referred above including earlier friendship and so also the commercial interest of the defendants and/or related parties, including other person/parties with whom all other subsequent agreements have already been entered into, based upon the edited films as proposed to be released and now already released in Middle East and by tomorrow in India also. The suit and whatever rights flowing from it unless decided including the compensation, if any which the appellant/plaintiff reserve right to claim, is another facet which is also against the appellant/plaintiff.
1. In view of the urgency shown, the matter is taken on board at 3 pm. Heard by consent of parties finally.
2. “Zanjeer” is the film (The film) which is releasing tomorrow i.e. 06.09.2013. The film is already released in Middle East country.
3. The trial Judge, after considering the material placed on record, refused to grant ad interim relief on 04.09.2013. Therefore, this Appeal and Application for interim injunction to delete the song “Mumbai Ke Hero” from the film prior to release on Friday, 6.09.2013. The prayer is also made in the alternative, if Defendants unable to comply with such prayers prior to 6.09.2013, to restrain even from releasing the film on 6.09.2013. Prayer is also made against the Respondents to forthwith withdraw all materials in the form posters, banners, visual marketing through any media which shows the use of “motorbike”.
4. The Appellant, a resident of Nagpur, is a owner of a imported “motorbike” in question. The use of the “motorbike” in picturing the song by the Defendants without prior permission/consent, is the bone of contention.
5. Admittedly, even as per the averments, the motorbike was not in possession of the Appellant/plaintiff at least for four months. The vehicle was in custody of Defendant No.1 at Mumbai, who is Director of the film. Defendant No.2 is the production House. The reference is also made of one Mr. Mehra, who is admittedly not a party to the proceedings. Appellant, Defendant No.1 and Mr. Mehra are known to each other. At the relevant time, their relations were good and friendly. Therefore, for whatsoever may be the reason, the motorbike was kept with Defendant No.1. There is no averment or case that the motorbike was at any time stolen and/or misplaced. The positive case is that the motorbike was handed over by the Appellant for a joy ride to Defendant No.1. The concept of joy ride is well known. There are no averments to show that on which date and under what circumstances, the Plaintiff unable to take the possession of the motorbike immediately. Even no criminal complaint filed, at any point of time, probably because of good relations between the parties. There is nothing to show that any restriction whatsoever even orally intimated and/or informed to Respondent No.1, not to use the motorbike other than the alleged personal joy ride. The motorbike now in possession of the Appellant/plaintiff who is alleged to be sentimentally attached to it.
6. Under what circumstances, with direct and/or implied permission or without permission, the motorbike was used alleged to be by Respondents 1 and 2, is a matter of trial. Mere averments as well as supporting affidavit itself is not sufficient to adjudicate the case of Appellant/plaintiff to show that the motorbike was used without his consent/permission. No case of requirement of any written permission averred. The possession of motorbike remained with Defendant No.1 at Mumbai for four months is the area which just cannot be overlooked while considering the case of misuse of motorbike, as well as, the breach of alleged trust or friendship, if any.
7. The film industry and basically the producers and/or production incharge have agencies to bring in and/or put in various equipments and materials to be used for making a particular shot of film. The industry is definitely depend upon independent persons. This also includes the necessary machineries and/or vehicles required for the shooting. Under what circumstances and at whose instance the motorbike used by the Defendant as alleged is again a matter of trial. The various possibilities, in such circumstances and basically when we are dealing with the film industry and their requirements, through the agencies, apart from the goods relations between the parties at the relevant time that resulted into giving custody of sentimentally attached motorbike to Defendant No.1 for four months.
8. The Plaintiff's prayers in the Suit, basically the declaration that Defendants 1 and 2, without
