S. MURALIDHAR, J.

1. This is a suit by the Indian Singers Rights Association (ISRA) filed against Chapter 25 Bar and Restaurant operating at the Metropolitan Mall in Pushp Vihar, New Delhi.

2. The prayers in the suit are for a permanent injunction restraining the Defendant and all other acting for and on its behalf from communicating to the public the Plaintiffs repertoire comprising of Performer's performances of all its members and that of the members of its sister societies which it is authorized to administer in India without paying royalties to and obtaining a clearance from the Plaintiff Society or doing any other that will infringe the Plaintiffs Performer's rights through any medium including but not limited to Radio Stations, TV and usage by Mobile Companies and violating the Right to Receive Royalties (the R3) and their Performer's Rights.

3. The suit was filed along with an application for interim injunction. Summons was issued in the suit and notice in the application for stay on 18th August 2015. The order dated 10th September 2015 reflects that Mr. Saurabh Yadav, Defendant No.1 was deleted from the array of parties as he was a tenant and was not available in the said address. The tracking reports of the postal authority and the courier agency showed that notice had been served and delivered on Defendant No. 2 (now the sole Defendant) i.e. the Chapter 25 Bar and Restaurant. On finding that no one was appearing on its behalf, the Court set the sole Defendant ex-parte.

4. In IA No. 14261 of 2015, by the order dated 10th September 2015 the Court issued an order of interim injunction restraining the Defendant and everyone acting on its behalf from “communicating to the public, the Plaintiffs repertoire comprising of Performances of all its members and works of its societies which the Plaintiff is authorised to administer in India, without obtaining a "Performer's Rights Clearance Certificate" from the Plaintiff or doing any other act infringing the Plaintiffs members Performers rights till further orders.”

5. The Plaintiff thereafter filed the affidavit of Mr. Sandeep Tandon, a constituted attorney of the Plaintiff. The un-rebutted evidence led by the Plaintiff depicts the following uncontested facts.

6. The Plaintiff is a company limited by guarantee registered under Section 25 of the Companies Act, 1956. The certificate of incorporation dated 3rd May 2013 is Ex.PW-1/2. After the amendment to the Copyright Act, 1957 by the Copyright (Amendment) Act, 2012, the Plaintiff was one of the first societies to be registered for protection of Performers Rights described under Section 38 of the Copyright Act, 1957 (Act).

7. Under Section 38 A (1)(a)(iii) of the Act, the performers right which is an exclusive right includes the right to make a sound recording or a visual recording of the performance including “communication of it to the public.” The proviso to Section 38 (2) of the Act states that notwithstanding anything contained in the said sub-section “the performer shall be entitled for royalties in case of making of the performances for commercial use.”

8. Section 39 A (1) of the Act inter-alia states that Section 18 shall “with necessary adaptations and modifications” apply in relation to the reproduction right in any broadcast and the performers right in any performance as they apply in relation to copyright in a work. Section 18 provides for assignment of copyright. The fourth proviso to Section 18(1) reads as under:-

“Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilisation of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void.”

9. The Plaintiff's members are Singers as a category of Performers. Ea