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2002 Supreme(Del) 1854
High Court Of Delhi
CHANCELLOR.MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD,TRADING AS OXFORD UNIVERSITY PRESS - Appellant
Versus
ORIENT LONGMAN PRIVATE LIMITED - Respondent
L.P.A. 4425 of 2002
Decided On : 12/19/2002
Amit Dutta, ANIL SHARMA, K.N.BHATT, M.Alam, NIL MASON, PRAVIN ANAND, RAJESH ROSHAN, V.P.Singh, V.S.Yadav, VIVEK DHOLAKIA
Headnote:copyright Act, 1957 - Section 22 — Interim injunction — Publication of copyrighted work in breach of agreement — Where under a subsisting agreement, the defendant had undertaken not to publish or cause to be published any work on the same subject at or about the price of sale which might reasonably be regarded as conflicting or likely to conflict with the sale of copyrighted works of the plaintiff without its consent in writing for her lifetime plus 60 years as provided in Section 22 of the Copyright Act unless the agreement was terminated earlier as provided therein, defendant should be injuncted from publishing works on same subject designed to cater the same readership — Said negative covenant in the agreement not an agreement in restraint of trade within the meaning of Section 27 of the Contract Act — Ex parte ad interim injunction already in force made absolute — Civil Procedure Code, 1908, Order 39 Rules 1, 2, 4 — Contract Act, 1872, Section 27.
Held:
The negative covenant in later part of Clause 13 whereby defendant No. 3 undertook not to publish or cause to be published any work on the same subject at or about the price the sale of which might reasonably be regarded as conflicting or likely to conflict with the sale of copyrighted works without the consent in writing of plaintiff, in the agreement dated 24th August 1994 which still subsists, thereforee, can be legally enforced against defendant No. 3 being not in restraint of trade. During the course of argument, it was pointed out on behalf of plaintiff that a cheque for Rs. 96,27,567.48 for the financial year ending 31st March 2002 was sent to defendant No. 3 towards royalty which she got encashed. Aforesaid covenant cannot be regarded as wholly one sided or unreasonable as defendant No. 3 would further get royalty during the legal term at the rate noticed in Para 7 of the agreement. Further, Volumes 2 and 3 in question of the Course and Activity Books and Course and Activity Books 2 and 3 published by the plaintiff are on the same subject of English language teaching and based on similar communicative approach to teaching English. Not only that they are designed to cater the same readership segment i.e. classes 2 and 3 and are also competitively priced. Having reached this conclusion the plaintiff must be held to have prima facie made out case for making aforesaid order dated 7th May 2002 pending suit absolute. Obviously, balance of convenience in the case is in favor of plaintiff who is likely to suffer irreparable injury if the ex parte ad interim injunction ordered is not confirmed.
( 1 ) THIS order will govern the disposal of I. A. Nos. 4425/2002 filed under Order 39 Rules 1 and 2 read with Section 151, CPC by the plaintiff and 5527 / 2002 under Order 39 Rule 4 read with Section 151, CPC filed by the defendants.
( 2 ) SUIT was filed for permanent injunction restraining defendants 1 to 3, their officers, servants, representatives and agents from publishing, distributing, marketing and selling The New Communicative Course NETWORK ENGLISH in Volumes (1 to 5), inter alia, alleging that the plaintiff entered into an agreement dated 24th August, 1994 with defendant No. 3 and J. A. Mason and pursuant thereto the later jointly authored and delivered to the former for publication series of 3 books titled communicate in English and these books were first published inl993-94 and revised in 1995-96. Revised books were brought out under the new title learning to Communicate series (1 to 5 ). Two special editions of books were brought out, one in 1997 which was meant for DAY Schools and another in 2000 which was meant for Manipur Schools. Books were again revised in the year 1999-2000 and were brought out under the title new Learning to Communicate series which comprised of Course Books (1 to 5) and Activity Books (1 to 5 ). Sale figures of said books upto 2000-2001 have been set out in para 23 of the plaint. It is further alleged that plaintiff has learnt on or about 5th April, 2002 that defendant No. 1 is proposing to publish series of five course books titled the New Communicative Course NETWORK ENGLISH and corresponding series of five activity Books titled the New Communicative Course NETWORK ENGLISH Activity Book authored by defendant No. 3 which are intended to be used as text books in the schools for classes 1 to 5 in the same manner as copyrighted works of the plaintiff are being used. Plaintiff has been able to obtain copies of Course Book and Activity Book Volumes 2 and 3 of the impugned works which are being filed along with plaint. Defendant No. 3 seems to have entered into some arrangement with defendant No. 1 and/or defendant No. 2 for the purpose. Said volumes 2 and 3 have been printed by defendants 4 and 5 and are due to be released shortly in the market. It is further alleged that defendant No. 1 is a long standing competitor of the plaintiff in educational publishing, particularly school textbooks in English language course. Said volumes are on the same subject; based on the same communicative approach to teaching English; designed to cater to the same readership segment and are very competitively priced. Their design-methodology, plan, arrangement, structure and pattern are also similar to copyrighted works new I Learning to communicate of the plaintiff. It is also alleged that defendant No. 3 has authored said volumes 2 and 3 in breach of Clause 13 of the agreement dated 24th Angus, 1994 in collusion with defendants 1 and 2 and the interest of the plaintiff, thus, needs to be protected.
( 3 ) IN said LA. 4425/2002 by the order dated 7th May, 2002 the defendants were restrained from taking out Volumes 2 and 3 in question till 17th May, 2002 for which summons and notices were issued. This ex-parte adinterim injunction continues to operate till date.
( 4 ) DEFENDANTS 1 to 5 contested the suit by filing written statement. It is allege that series bearing the title communicate in English was created as a result of an agreement dated 21st May, 1993 in between defendant No. 3 Paul Gunashekar and the plaintiff. Initially the books were titled as middle School English Course . They were finally published under the title communicate in English in 1994. Revised series under the new title learning to Communicate written by defendant No. 3 and J, A. Mason was published in 1995. This series was created under the aegis of the agreement dated 24th May, 1994. Series was subsequently revised for the DAV educational schools and Manipur Catholic schools under the agreements dated 27th J
