JUDGMENT

1. This Commercial Division Summary Suit is instituted for recovery of a sum of Rs.1,63,70,640.00 along with further interest at the rate of 12% p.a. on the principal amount of Rs.1,55,61,382.00 from the date of the institution of the suit till realization.

2. In response to the service of writ of summons, the defendant entered appearance.

3. Thereupon, the plaintiff has taken out this Summons for Judgment. The defendant has filed an application seeking leave to defend the suit. The plaintiff has filed an affidavit in reply to the application seeking leave to defend the suit.

4. The material averments in the plaint can be summarized as under:

The plaintiff is a company registered under Companies Act, 1956. It was originally registered as a Copyright Society under the provisions of Sec. 33 of the Copyright Act, 1957. The plaintiff has been granted assignments of Copyright in various sound recordings by its members for, inter alia, broadcasting through FM radio channels. The defendant is a radio broadcasting company operating FM radio stations.

5. The defendant had entered into Voluntary License Agreement (VLA) for their Phase II FM stations with the plaintiff and has been using the plaintiff's sound recordings since 2006. On 12 th April, 2018 the plaintiff has executed 1st VLA with the defendant for broadcast of its repertoire through 44 radio stations run by defendant in various cities across India. The 1 st VLA was executed for a term of one year from 1 st April, 2018 to 31/3/2019, under which standard license fee was fixed at Rs.2,400.00 per needle hour or 20% of net advertising revenue (NAR), whichever was higher. Another agreement was executed on 12/4/2018 for 14 other FM radio stations established under Phase III licensing regime. The license fee payable under 2nd VLA was Rs.6.00 lakhs per month as indicated in schedule III appended thereto.

6. On 11/4/2019 the parties executed a renewal agreement seeking to extend the term of 1st VLA for a further period of two years from 1/4/2019 to 31/3/2021 subject to certain modifications. The renewal agreement provided for a flat rate towards license fees being Rs.34.00 lakhs per month for each radio station from 1/4/2019 to 31/3/2020 and Rs.35.00 lakhs per month exclusive of GST and other levies for each radio station from 1/4/2020 to 31/3/2021. The license fee payable was in respect of 44 radio station under 1st VLA. Another separate renewal agreement was executed on 11/4/2019 in respect of 2nd VLA to extend the arrangement under 2 nd VLA for a period of two years from 1/4/2019 to 31/3/2021. The license fees was retained at Rs.6.00 lakhs per month exclusive of GST and other levies in respect of radio stations referred to in 2nd VLA.

7. The plaintiff asserts that the defendant abided by the contractual obligations under the 1st and 2nd VLA and the corresponding renewal agreements and made the payments against the invoices raised from April, 2018 to March, 2020. In May, 2020 defendant sought, inter alia, a huge concession of 75% in the license fee from April, 2020 to September, 2020 on account of the situation faced by the radio industry due to Covid 19 pandemic. The plaintiff declined to accede to the request of the defendant. Yet, the defendant deposited a sum of Rs.18.00 lakhs per month as license fee for the months April, May and June, 2020. The defendant took a stand that though the contract provided for a lump sum payment, the understanding between the parties has always been that the calculation is a close approximation of the 2% rate that has been decided in 2010 by the Copyright Board and which was likely to be reviewed. The plaintiff categorically declined to agree with the said stand of the defendant. There were exchange of correspondence between the parties. Nonetheless, the defendant continued to broadcast the plaintiff's repertoire through all 58 radio stations until the end of September, 2020.

8. Vide communication dtd. 8/10/2020 the defendant claimed that it