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2019 Supreme(Online)(MAD) 445
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 31.01.2019 CORAM THE HON'BLE MR.JUSTICE M.SUNDAR C.S.No.881 of 2018 and O.A.No.1192 of 2018 M/s.Novex Communications Pvt. Ltd.
Rep. by its authorised signatory Mr.S.Swaminathan Having its office at
17/7, NRCS Towers, 4th Floor Kodambakkam High Road, Nungambakkam Chennai – 600 034. ..Plaintiff Vs.
1.Hotel Sunway Manor Represented by its Vice President Mr.Lawrence
155/D, 100 Feet Road Mudialpet, Puducherry – 605 004. 2. Venugopal Inn Private Limited Represented by its Director Kugan Venugopal No.240, Jawaharlal Nehru Street Puducherry – 605 001.
3.M/s.Media One Rep. by its Managing Partner S.P.Suresh Kumar
500-A, Kamaraj Road Opp to ESI Hospital Uppilipalayam (PO), Coimbatore 641 015. .. Defendants This Civil Suit is preferred, under Order IV Rule 1 O.S. Rules Read with Order VII Rule 1 of CPC and under Sections 51, 55 and 62 of the Copyright Act, 1957 praying a) For a permanent injunction restraining the Defendants, their men, agents, servants, assigns, heirs, representatives, successors, affiliates or any other persons claiming through/under them from in any manner publicly performing or communicating the schedule mentioned sound recordings works of the plaintiff to the public or allowing their premises or any premises under their control to be used for the said purpose without license from the plaintiff or in otherwise infringing copyright in any work owned and licensed by the plaintiff.
b) Costs of the suit; and c) Pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and thereby render justice.
For Plaintiff : Mr.P.V.Balasubramaniam For Defendants : Mr.J.Srinivasamohan for D1 and D2 Mr.M.Arun for D3
JUDGMENT
Mr.P.V.Balasubramaniam, learned counsel of M/s.BFS Legal [Law Firm] on behalf of plaintiff and Mr.J.Srinivasa Mohan, learned counsel on record for defendants 1 and 2 and Mr.M.Arun, learned counsel on record for third defendant are before this Commercial Division.
2. There is an interlocutory application in O.A.No.1192 of 2018 and respondents 1 and 2 therein, who are defendants 1 and 2 respectively in this suit have filed a common counter affidavit dated 30.01.2019. With regard to third defendant their stated position is contained in plaint document No.36, dated 25.09.2018.
3. To be noted, the stated position of defendants 1 and 2 also has been articulated in the aforesaid counter affidavit.
4. Considering the narrow scope of the entire lis and the prayer, all the three learned counsel before me submitted and consented for disposal of main suit itself by exercise of powers of this Commercial Division to pass a summary judgment being powers under Order XIII-A of amended 'The Code of Civil Procedure, 1908' ('CPC' for brevity) as amended by 'The Commercial Courts Act, 2015' ('said Act' for brevity).
5. To be noted, the grounds on which a summary judgment can be passed are adumbrated in Rule 3 of Order XIII-A of amended CPC as amended by said Act. A perusal of Rule 3 of Order XIII-A of amended CPC as amended by said Act reveals that when the defendants have no real prospect of successfully defending the claim in the light of their stated position, a summary judgment can be passed when there is no other compelling reason as to why the claim in the suit should not be disposed of before recording oral evidence.
6. This takes us to the stated position of defendants. In the counter affidavit of respondents 1 and 2 in O.A.No.1192 of 2018, stated position of defendants is articulated in paragraphs 4, 5, 7 and 8, which read as follows:
'.........4. I deny the allegations in para 16 of the affidavit under counter. I categorically state that there are no celebrations, functions, live events, shows and performances on a large scale for Christmas, New Year Holiday season or any festive season. We do not invite any person/guest for the alleged non-existent events.
5. In as much as we do not organize any functions, or events, question of making any profits on such events does not arise. The banquet halls alone are given out on rent and nothing extra is charged. The event complained off by the plaintiff, is a private event, which is admitted in the plaint.
7. I hereby specifically deny the allegation that we conducted an event on 15.09.18 charging entry fees and cover charges. No such event was conducted. I specifically deny the allegation that we are making profits by charging entry fees, cover charges, ticketing charges anything between Rs.2,500/- to Rs.25,000/-. I submit the charge for the hall is on the basis of food provided per person. There are no additional charges. The further allegation that we are continuing with unauthorized use and public communication of sound recordings are specifically denied as false. We have strictly informed persons taking on rent the halls, not to play any songs that require license.
8. I submit that we hereby categorically state that there are no complaints after the alleged incident on 20.08.18. We are strictly following the Rule of law and as stated above have made it very clear to the persons taking banquets halls on rent not to play any music/song during their private event, without obtaining license, if such songs requires license. We hereby state that we would continue to do so.'
7. As mentioned and as alluded to supra, the stated position of third defendant is articulated in plaint document No.36 being a reply letter dated
25.09.2018 and the same reads as follows:
'Media One The right thoughts Date: 25.09.2018 Dear Mr.Priti Naik, We are writing this on behalf of your letter dated 4th September, 2018 regarding the recorded music used in the event conducted on 20th August, 2018 in The Sunway Manor, Pondicher
