Defendant Nos. 2 and 3 have filed this Application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint. As indicated in the order dated 25-2-2008, the counsel appearing on behalf of defendant Nos. 2 and 3 as well as the other defendants, all of whom supported this prayer for rejection of the plaint, raised the following two fundamental questions with regard to the maintainability of the suit :-

1. Whether, in view of the provisions of sections 33 and 34 of the Copyright Act, 1957, a suit for infringement of copyright would be maintainable at the instance of a registered copyright society in the absence of the owner of the copyright?

2. Whether, in view of the provisions of section 61 of the Copyright Act, 1957, inasmuch as the owner of the copyright has not been made a party to the present suit, the same would be liable to be rejected on the ground of non-impleadment of a necessary party?

The parties and the reliefs claimed :

2. Before I consider the two questions, it would be necessary to indicate who the parties are and what is the nature of the reliefs sought in the present case. As disclosed in the plaint, the plaintiff is a company incorporated under the provisions of the Companies Act, 1956. It is also a copyright society registered under Section 33 of the Copyright Act, 1957. The registrar of copyrights has issued a certificate dated 7-5-1996 under section 33(3) of the Copyright Act, 1957 in favour of the plaintiff. By virtue of the said certificate, the plaintiff is permitted to commence and carry on the copyright business in sound recordings.

3. It is further stated in the plaint that various owners of copyrights in different sound recordings in respect of recorded music have entered into in agreements with the plaintiff being a registered copyright society enabling the plaintiff to administer their rights by issuing licences in respect thereof. One such agreement has been filed at page 20 of the documents file and it is between Saregama India Ltd. and the plaintiff. The agreement is dated 1-4-2003. In the said agreement it is categorically stated in the recitals that Saregama India Ltd. is the owner of the copyright in various sound recordings and that by virtue of its membership of the plaintiff society, it has agreed to authorise/grant to the plaintiff, in respect of its sound recordings, its rights of communication to the public (including broadcast/telecast and public performance rights) on the terms and conditions mentioned in the agreement. By virtue of clause 1 of the agreement, the owner granted and authorised the plaintiff it's right of communication to the public in respect of its sound recordings. The owner also authorised the plaintiff to grant licences, collect and distribute revenue on behalf of the owner, whether on the plaintiffs own account, or through its duly appointed agents. The plaintiff was also entitled to realise all fees and licence fees payable in respect of such recordings (the rights of communication to the public of which have been granted to the plaintiff) from any person, authority, firm or company. The owner also authorised the plaintiff to realise and receive payments of all such fees and licence fees from All India Radio, any other broadcasting/telecasting organisation and/or any other person, authority, firm or company in respect of communication of the recordings to the public. It was specifically stipulated that the owner shall have no right to claim such amounts from any of the parties referred to above.

4. Clause 2 of the agreement deals with enforcements. It stipulates that ancillary to the rights granted in clause 1 to the plaintiff and/or its agents, in case of any infringement of the right to communication to the public of any of the recordings which constitute the subject matter of the agreement, the owner authorises the plaintiff to, inter alia, swear affidavits, institute, commence or conduct civil, criminal and/or administrative pro