Readiness and willingness should be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned, and the mere non-mentioning of these two words in the plaint cannot lead to an inference of the absence of the same.

Prathiba M. Singh, J.

I.A. 5758/2018 (u/O VII Rule 11 CPC)

1. Plaintiff No.1 Mr. R. S. Aggarwal (hereinafter, ‘author’), is an author of mathematics books prescribed for students in schools and colleges, and has authored over 100 academic books. He has also co-authored some books with Plaintiff Nos.2 & 3, who are his brothers and which are prescribed at various levels for the students from pre-primary and post graduate levels.

2. The Defendant No.3, S. Chand Company (hereinafter, ‘publisher’), a publishing house has published various books of the Plaintiffs. There were several agreements entered into between the Plaintiffs and the Defendant No.3 dated 5th January, 1991, 2nd April, 1997, 28th October, 1992 and 28th October, 1997. These agreements are publishing agreements wherein the Defendant No.3 has the right to publish the books as also their translations and adaptations. The authors were to be paid royalty at the rate of 10% of the published prices for all copies of their books sold and value realised. Statement of accounts has to be given annually to the author by May of every year and payment was to be made by September. The publisher had the first option to publish any book of the author in future. If the publisher wished to publish/edit/revise any of the books, the author had to agree to edit and revise the same. If the author refused to do so, then the publisher had the option of engaging a third party for the said purpose but the charges would be deducted from the royalty payable. In case of a translation, the author could supply the translated manuscript and the publisher could publish the same. Only if the author was unable to translate, the publisher could get it done from a third party and deduct the said charges from the royalties payable.

3. The suit was filed on the premise that some of the academic books, which were published by the publisher, were a verbatim reproduction of the books of the Plaintiffs, and were not authored by them. The same was brought to the notice of the publisher immediately, who undertook not to publish further editions of the infringing books. On another occasion, a book authored by a 3rd party was attributed and promoted as a book authored by Plaintiff No.1. The infringing books were authored by Defendant No.1 Mr. P.K. Aggarwal and Defendant No.2 Mr. Bhagwat Swaroop Sharma. The Plaintiffs also came across unauthorised translations of their books. According to the Plaintiffs, the royalty statements were not being properly provided and the accounts were being misrepresented. Under these circumstances, the Plaintiffs filed the present suit for infringement of copyright seeking the following reliefs:-

“a. An order of permanent injunction restraining Defendant Nos.1 and 2, their partners as the case may be, their officers, servants and agents, affiliated entities, and all others acting for and on their behalf from reproducing, substantially or otherwise, the contents of any of the suit books including Quantitative Aptitude and the Reasoning books, in any manner amounting to infringement of copyright and violation of moral rights vested with the Plaintiffs;

b. An order for permanent injunction restraining Defendant No. 3, its partners or proprietors, as the case may be, its officers, servants and agents from publishing, distributing, offering for sale, advertising, directly or indirectly dealing any business whatsoever using the name Dr. R.S. Aggarwal in relation to any books other than the suit books amounting to invasion of Plaintiff No.1's right to publicity/privacy etc.

c. An order of permanent injunction restraining Defendant No. 3 from misrepresenting Defendant No.1's book titled 'A Handbook of Test of Reasoning and Quantitative Aptitude' and/ or the book titled 'Advanced Approach to Non-Verbal and Logical Reasoning' and/or any other book as if it has been authored by the Plaintiffs amounting to passing off.

d. An order for specific performance requiring Defendant No.3 to perform it