{"id":149720,"date":"2005-10-06T00:00:00","date_gmt":"2005-10-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shemaroo-video-p-ltd-and-ors-vs-movie-tee-vee-enterprises-and-ors-on-6-october-2005-2"},"modified":"2018-03-02T17:30:48","modified_gmt":"2018-03-02T12:00:48","slug":"shemaroo-video-p-ltd-and-ors-vs-movie-tee-vee-enterprises-and-ors-on-6-october-2005-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shemaroo-video-p-ltd-and-ors-vs-movie-tee-vee-enterprises-and-ors-on-6-october-2005-2","title":{"rendered":"Shemaroo Video P. Ltd. And Ors. vs Movie Tee Vee Enterprises And Ors. on 6 October, 2005"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shemaroo Video P. Ltd. And Ors. vs Movie Tee Vee Enterprises And Ors. on 6 October, 2005<\/div>\n
Equivalent citations: 2005 (6) BomCR 485<\/div>\n
Author: S Kamdar<\/div>\n
Bench: S Kamdar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.U. Kamdar, J.<\/p>\n
1. The present notice of motion is taken out in  the suit preferred by the plaintiff for a  declaration that the defendant has no right, title  and interest nor any licence to exploit or exhibit  in any manner films known as ‘Karz’ and ‘Hero’, nor  any right to sell or distribute the aforesaid  movies in CD and DVD formats. A further order is  sought by way of permanent injunction restraining  the defendants from infringing the copy rights of  the plaintiff vested in them under the agreement  dated 20.9.2002 inrespect of the aforesaid two  movies. In nutshell the facts of the present case  are briefly enumerated as under :\n<\/p>\n
 2. The plaintiff No. 1 is a company inter-alia  carrying on business in exploiting the films in the  form of VCD’s (Video Compact Disc), DVD’s (Digitial  Versatile Discs) and tapes and distribute and sell  for exhibiting the same. The plaintiff No. 2 is a  company who is inter-alia carrying on business of a  purchaser of Hindi movies and the plaintiff No. 2 is  the producer of these two movies which are the  subject matter of the suit being ‘Hero’ and ‘Karz’.  The defendant No. 1 and 2 are also doing  distribution and exploitation of the films.\n<\/p>\n
 3. It is the case of the plaintiff that some time  in or about 1980 a movie known as ‘Karz’ was  produced and sometime in or about 1983 a movie  known as ‘Hero’ was produced by the plaintiff No. 2.  On 4.5.1983 and 1.5.85 the plaintiff entered into  two agreements with the defendant No. 1 and  conferred on the defendant No. 1 exclusive rights on  the aforesaid two films for distributing,  exhibiting and exploitation of the aforesaid two  movies in “16mm video and reduced sizes”. The said  rights are conferred on the defendant No. 1 by the  plaintiff No. 2 for a period of 99 years. It is the  case of the plaintiff that the rights which are  conferred on the defendant No. 1 by the plaintiff  No. 2 is only video rights and that is only in the  video format i.e. VHS Video magnetic tape format  (VHS). It is the case of the plaintiff that it is  so because in the year 1983-1985 only video format  was in use in India and no other format such as VCD  and DVD were yet introduced in India and therefore  by necessary implication the rights conferred under  the said two agreement is only in the video format  and not in the VCD and DVD format. It is the case  of the plaintiffs that thus inspite of the rights  conferred  on the defendant No. 1 by plaintiff  No. 2 under  the  tow  agreements  dated  4.5.1983  and 1.5.1985  in  so  far  as VCD and  DVD  rights  are concerned  the  plaintiff No. 2 continued to be  the holder  of  the copy rights, in so far as the  said two  films  are concerned.  Thus according  to  the plaintiff No. 2 he was entitled to enter into an  agreement for exploitation of VCD and DVD rights  inrespect of the two movies irrespective of  subsisting agreement in favour of the plaintiff  herein. It is his contention of the plaintiff No. 2  that he assigned his rights earlier in a company  known as ‘M\/s. Indus Mercantile Agencies’ for a  period of 10 years from the date of the delivery of  the print under the agreement dated 5.9.78.  According to the plaintiff these rights were  assigned by way of an agreement including the right  to copy or authorised copying of the said films on  VCD’s and DVD’s. The said right by way of  assignment was granted for a period of 10 years  from the delivery of the said film. It is the case  of the plaintiff that the said assignment in favour  of M\/s Indus Mercantile Agencies came to an end on  30.11.87 and subsequently the plaintiff No. 2  conferred the right on the plaintiff No. 1.  According to the plaintiffs an agreement was  entered into by the plaintiff No. 2 in favour of the  plaintiff No. 1 conferring the rights in the said  films on 20.9.2002. In the said agreement dated  20.9.2002 the VCD and DVD rights inrespect of the  said films are conferred on the plaintiff No. 1 and  the same is for a period of 1.10.2002 to 20.3.2007  i.e. for a period of 5 years and 6 months. It is  the case of the plaintiff No. 1 that pursuant to the  said agreement he has taken delivery of the said  films from the plaintiff No. 2 and thus he is fully  entitled to exploit the suit films by way of VCD  and DVD throughout the territories of India, Nepal,  Bhutan and other territories as mentioned in the  agreement. It is the case of the plaintiff No.  2  that sometime in or about October 2002 they came  across that a distributor known as M\/s. Gold Video  was distributing and selling the movies in VCD  format. It is thus the case of the plaintiff that  they realised that the defendant is also exploiting  the said movies in the of VCD and DVD formats. It  is the case of the plaintiff that the said M\/s.  Gold Video thereafter stopped distribution of the  said VCD’s. The defendant No. 1 thereafter by their  letter dated 28.12.2004 has called upon them to  stop from distribution of the said movies in the  VCD or DVD formats. By the said letter the  defendant No. 1 has claimed that they are the owners  of the video copy rights of films in all the  territories inrespect of the said films for a  period of 99 years and they have called upon the  plaintiffs to forthwith stop the sale of the video  films and hand over to the defendant No. 1 all the  plates and other equipments used or meant for  manufacture of Video C.D.’s of the said two suit  films. By letter dated 8.1.2005 the plaintiff  denied the said contention. However the defendant  No. 1 addressed a further letter on 17.1.2005 and  reiterated their rights. Correspondence were  exchanged between the parties and ultimately the  plaintiffs have filed the present suit inter-alia  claiming the aforesaid right in their favour and  sought an injunction that the defendant should not  be permitted to continue to exploit the films in  VCD’s and DVD’s.\n<\/p>\n
 4. Though the motion was placed for ad-interim  injunctions before me however since the parties  have already filed their affidavits both the  parties agreed that the motion can be heard finally  at this stage itself and dispose off. Accordingly  i have heard the parties at length and disposed off  the present motion finally.\n<\/p>\n
 5.  Mr.  Tulzapurkar learned counsel appearing for the  plaintiff have inter-alia contended that under the  two agreements dated 4.5.83 and 1.8.1985  what was  conferred  on the defendant No. 1 was merely  a limited right in a video film of the said films.  At that time according to him the video films were  available in what is known as VHS. He has drawn my  attention to the said agreement which is entered  into between the plaintiff No. 2 and the defendant  No. 1 inrespect of the movie known as ‘Karz’ on  4.5.1983 where under Clause 1 the rights are  conferred on the defendant No. 1 herein. The said  clause 7 and 9 of the said agreement were brought  to my attention. It was contended that inrespect  of the second agreement dated 1.5.85 for the movie  ‘Hero’ also the terms and conditions of the  agreement are identical. The said Clause 1, 6, 7 and 9 reads as under :\n<\/p>\n
“1.  For the consideration hereinabove  mentioned the lessors do hereby  assign, grant and transfer to the  lessees the sole and exclusive  rights of the said picture for  distribution, exhibition and  exploitation of the said picture  in 16mm, video and reduced sizes  for a period of 99 years for the  territories referred to above.\n<\/p>\n
 6.  The lessees alone are fully  entitled to distribute, exhibit  and exploit the said picture in 16  mm video and reduced sizes either  by themselves or by appointing  sub-distributors and\/or agents and  shall be entitled to transfer  their, right tiles and interests  in par and\/or full lease out, sell  or deal with any party or parties,  person or persons, government or  semi-government departments etc. <\/p>\n
 7.  The lessors do hereby declare that  the lesser are\/truly well and  sufficiently entitled to the said  rights hereby assigned granted and  transferred to the lessees and  that the lessors have not  encumbered or alienated the same  in any manner whatsoever so as to  prevent the lessors from entering  into agreement for exclusive  distribution, exhibition and  exploitation of the picture as  herein above provided. The  lessors hereby covenant with the  lesses’s that the lessors will not  hereinafter encumber or alienate  the rights inrespect of the said  hereby assigned, granted and  transferred for the territories  hereinabove mentioned.\n<\/p>\n
 9.  The lessors further agree and  undertake nor to supply any 16mm  and reduce size prints in colour  and or Black and White or any  part\/parts thereof, of the said  picture to any party or persons  and or exploit the same  non-commercially in any gauge in  the territories assigned to the  lessees and as specified  hereinabove and the lessees will  have the right to stop such  illegal non-commercial  exploitation in any gauge.”\n<\/p>\n
 6. By relying upon the aforesaid clauses the  learned counsel for the plaintiff has contended  that what was conferred under the aforesaid two  agreements by the plaintiff No. 2 to the defendant  was only 16mm video and reduced sizes” exploitation  rights in the said pictures. It was contended that  words ‘video and reduced sizes’ does not include  VCD’s and DVD’s. However Clause 9 of the said  agreement goes a step further and confers also the  right on the defendant to commercially exploit the  film in any gauge. Learned counsel has contended  that on the reading of the Clauses 1, 6, 7 and 9  together it is clear that what was conferred on the  defendant No. 1 was exploitation of video rights and  the movies on 16mm reduced sizes. It has been  contended that when the words ‘video rights and  reduced sizes” is provided in the agreement the  same does not include the VCD and DVD rights. It  has been contended by the learned counsel for the  plaintiff that the VCD and DVD as a technology was  unknown to India in 1983-85 when the aforesaid  lease agreements were entered into between the  plaintiff and the defendant herein. He has further  contended that once the said technology was not  available in India at the relevant time then the  interpretation of the agreements has to be  restricted in the light of the said technology  available at that time because it was not in  contemplation of the parties while entering into an  agreement that the VCD and DVD technology will  arrive in India subsequently and that the party  will be entitled to exploit the said movies in the  VCD and DVD format also. It is thus contended that  the rights which was conferred under the said two  agreements to the defendants are limited rights in  the exploitation of the film only in the video  format i.e. VHS films and is not extended to the  exploitation of the film under the format of DVD  and or VCD. It has been further contended that the  interpretation of the agreement has to be on the  basis of harmonious construction of all the clauses  together and it has been contended that on reading  Clauses 1, 6, 7, and 9 together it is very clear  that VCD and DVD rights were only conferred on the  defendant and therefore the defendant is not  entitled to exploit the same and the plaintiff who  has been conferred the said VCD and DVD rights by  an agreement of 20.9.2002 they are entitled to use  the said films for VCD and DVD rights.\n<\/p>\n
 7. In support of the aforesaid contention the  learned counsel has drawn my attention to two  judgments of the Single judge of this court in the  case of Video Master and Anr. v. Nishi Productions and Ors. reported in 1998(3) Bom. C.R. 782,  particularly para-8 of the said  judgment. He has also brought to my attention the  judgment of the learned single judge of the Madras  High Court Raj Video Vision v. K. Mohan Krishnan and Anr.  reported in 1999 PTC (19) 110  and has  brought to my attention para-10 of the said  judgment which reads as under :\n<\/p>\n
 “1O.  One of the arguments which can be  made herein is that the original  assignors viz. the produces,  have not kept the video rights  with them and therefore, it  presumed that the said right was  not reserved by the producers,  The obvious reason is that in the  year 1961 neither the assignors  nor the assignees could have  dreamt of telecasting or video  rights for exploitation or  exhibition or distribution or  printing transferring master  cassettes, etc. However, the  conclusion which can be arrived at  is that when the producers  themselves were not aware of their  future rights accrued due to  scientific advancements, it cannot  be said they had already  transferred the rights not in existence by way of assignments.  The assignments cannot be made on  rights not ion existence and  therefore it can be safely decided  that  the video rights of the film were  not  given to the  assignees M\/s.  Azam  and Company  and  the assignee in turn an assignors  could not have assigned the video  rights to the 2nd defendant  herein.\n<\/p>\n
 8. On the other hand the learned counsel for the  defendant has contended that the argument advanced  by the plaintiff is totally devoid of any merits.  It has been contended that what was conferred on  the defendant by the plaintiff was distribution,  exploitation and exhibition of the picture in the  format of 16mm video and reduced sizes for a  period of 99 years. and the reduced sizes can be  in any gauge. It has been contended that when you  confer video rights and in reduced sizes it will  include a further advanced version of the video  cassettes in the format of VCD’s and DVD’s because  it is nothing but a reduced size of a video tapes  (VHS). It has been further contended that both  the DVD’s and VCD’s and VHS tapes can be exploited  via the medium of video rights. The right  conferred under the agreement is not only to  exhibit the film through the VHS tapes via the  video media but it can be exploited in any form of  the video tapes as long as it can be exploited via  the media of video. It has been contended that  the word video exploitation include the  exploitation by the VCD and DVD tapes and thus the  rights conferred under the two agreements is  comprehensive rights including VCD and DVD rights  inrespect of the said films. He has also drawn my  attention to the agreement dated 20.9.2002 entered  into between the plaintiff No. 2 and the plaintiff  No. 1 and has brought to my attention that the said  agreement is not only inrespect of the VCD and DVD  but is also inrespect of the VHS. Thus  deliberately in breach of the defendants rights  under the said two agreements, the plaintiff No. 2  has conferred video rights on the plaintiff No. 1  and permitted him to exploit the said video rights  through all the tapes known as VHS, VCD and DVD.  Thus it has been contended that the argument  advanced by the learned counsel is infact contrary  to the facts on record because admittedly though  the plaintiff has argued that only VHS rights are  given to the defendant No. 1 and 2 still the  agreement dated 20.9.2002 indicates that the said  rights are also conferred again by the plaintiff  No. 2 in breach of the said lease agreement to the  plaintiff No. 1. Learned counsel has further  argued that when rights are given in 16mm size  film and of any reduced gauge then the video  rights can be included in any form of tapes and  there is no restriction under the lease agreements  that the said video rights can be utilised only in  the format of VHS tapes. It has been further  contended that the word ‘reduced sizes’ infact  includes the VCD and DVD because VCD and DVD is  nothing but a reduced size of the video tapes.  Learned counsel for the defendant has relied upon  a judgment of this court in the case of Maganlal Savani and Anr. v. Rupam Pictures (p) Ltd. and Ors. reported in 2000 (4) Bom. C.R. 400  particularly  para-6 thereof which reads as under :\n<\/p>\n
 6 What is assigned to the first  plaintiff is the exploitation,  distribution and exhibition commercially  or otherwise of the picture. In this  context we have to give a wider meaning of  the term ‘exploitation’ Exploitation of a  film takes in all the scientifically and  technological device that may even in  future also and the plaintiff could make  use of those inventions given such an  interpretation of the word “exploitation”  the objection raised by the first  plaintiff in conducting satellite  telecasting of the picture “Chupke chupke”  will per se violative of the provisions of  the agreement. The similar view has been  taken by this court in the context of  interpreting similar contract in Notice of  Motion No.  8663\/99 dated 17th August  1999. I need not go into the details of  that order because the matter has been  taken in appeal before the Division Bench  of this court and the Division bench of  this court by order dated 10.1.2000 in  Appeal No.  1246\/99 upheld the order of  the learned single Judge and held that the  exploitation is taking of the kind of  exploit, including the internet, satellite  telecast. It is profitable to quote the  observation of the Division Bench.\n<\/p>\n
 “We find no infirmity in the  prima-facie opinion expressed by  the learned single judge that the  phrase all other rights attached  to such exploitation cannot be  read to mean that the other rights  referred only to television rights  and the Clause shows that the  plaintiff is the sole, exclusive  and perpetual copyright holder for  exploitation of the films in  question.\n<\/p>\n
 In view of this, I find that the agreement  executed between the first plaintiff and  the first defendant will take in satellite  telecast of the said film also.”\n<\/p>\n
 9. He has also relied upon an unreported  judgment in the case of Maganlal Savani v.  Khosla Enterprises and Ors. decided by the learned  single judge of this court in Notice of Motion No.   863 of 1989 in suit No.  925 of 1999 decided on  17.8.1999 wherein in a similar controversy this  court has held as under :\n<\/p>\n
 “7 In my view, the most natural  meaning to be given to the aforesaid  clause is that the plaintiff has been  given perpetual copyrights of  exploitation, distribution and exhibition  of films. These rights include the rights  of television and all other rights  attached to such exploitation. The phrase  all  other  rights  attached  to  such exploitation  cannot be read to  mean  that the  other  rights  referred  only  to television rights. The clause clearly  shows that the plaintiff is the sole  exclusive and perpetual copyright holder  for exploitation of the films. The size  of of the pictures viz. 35mm as well as  any reduced sizes or sizes cannot be read  to mean that all other rights where the  film is exhibited through the medium of  video cassettes and DVD has been excluded.  Ultimately what was assigned to the  plaintiff was the right to exploit and  exhibit the films through different sizes  of the film and by the medium of  television. Video cassettes, VCD and DVD  are only improved versions of exhibiting  the film. What was earlier done by the  spool containing the film is now being  done by video cassettes and DVDs.  Satellite broadcasting can also not be  said to be excluded from the television  rights which had been granted to the  plaintiff. By using the satellite  channels the plaintiff is still exhibiting  the films on television. In fact the  clause clearly indicates that all rights  for exploiting the film had been assigned  to the plaintiff.”\n<\/p>\n
 10. I have considered the rival submissions  and I am of the opinion that the arguments  advanced by the learned counsel for the plaintiff  is devoid of any merits. I am of the opinion that  on a conjoin reading of the Clauses-6,7 and 9 of  both the agreements together it is very clear that  what was is conferred in a lease of 99 years is  the rights for films in 16mm sizes video  exploitation and in similar sizes of any gauge.  The rights are not conferred only for exploitation  of the movies via the VHS tapes as contended by  the learned counsel for the plaintiff. Thus if  the rights are conferred by the agreement is  inrespect of the exploitation of the film via the  mode or channel of video then the method or manner  in which the said exploitation can be made cannot  be restricted to the existing methods at a time  when the said agreement was executed. If there is  any advanced technology introduced then in that  event the right in the nature of exploitation of  the said videos by way of advanced technology  cannot be restricted or precluded if essentially  the right to exploit the said movies is vested in  a party by a video media. In this lease agreement  video rights are not restricted only in respect of  the VHS tapes. The argument that it was not in  contemplation of the parties that there can be a  VCD’s and DVDS form of tapes for the purpose  exhibition of a film on a video is merely required  to be rejected for the simple reason that the  words “reduced sizes” introduced in the agreement  indicates that it was in contemplation of the  parties while executing the agreement that video  exploitation can be in any reduced sizes in the  films and tapes. Apart from the aforesaid I am of  the opinion that the second judgment cited by the  learned counsel for the defendant supports my  reasoning that the word exploitation of film takes  in its sweep all formats of technology which may  be invented in future also. The judgment of  Nijar, J has in terms held that video cassettes  are also can be in improved version of exploiting  the films and when there is a right given of  exploitation of the films in 35 mm as well as  reduced sizes then in that event the party is  entitled to exploit the movies of any films in VCD  and DVDS. I am of the further opinion that if an  agreement between the parties does not restrict  their rights of exploitation of films by existing  technology then it is not open to the court to  introduce such restriction by a process of  interpretation of the said agreement.\n<\/p>\n
 11. The judgment cited by the learned counsel  for the plaintiff of the learned single judge of  this court Sakhare, J in my opinion does not apply  to the facts of the present case. The issue  before the court was whether the television right  and satellite broadcast right is similar or  different i.e. cable rights or T.V. rights are  same or different. The Learned Judge has come to  the conclusion that T.V. distribution of films  being different the cable rights and telecast  right differ from original terrestrial TV rights  and thus the learned single judge held that the  said satellite rights are not included in the  words T.V. rights In so far the judgment of the  Madras High Court is concerned I do not agree with  the view which has been advanced by the learned  judge. In any event I am of the view that the  judgment of the Madras High Court has no  application to the facts of the case because there  the case was what was conferred on the parties was T.V. rights for exploitation of the films which  is totally different from video rights. It was  not the case that the T.V. rights are exploited  by any other advanced method. It was a case of  totally different nature of right. However in the  light of the judgment of this court referred to  above I am of the opinion that the video rights  covers in itself exploitation of the film through  the media of video, VHS tapes, VCD’s or DVD’s or  any other advanced version of tape but the  exploitation of the film must be through the media  of video exploitation only and no other media and  method of exploitation. T.V. rights and video  rights  are  totally different categories and  not improved  version  of the rights.  In my view  the judgment  of  the  Madras  High  Court  has  no application  to the facts of the present case.  I am of the opinion that on true and correct  interpretation of the agreement before me the  defendants.1 and 2 are entitled to exploit the  video rights of both the films under the aforesaid  two agreements including the exploitation by the  VCD’s and DVD’s cassettes apart from VHS  cassettes. I am also of the further opinion that  the plaintiff No. 2 is advancing false and  frivolous arguments because though in the course  of the argument it is contended that VHS rights  are conferred on the defendants dated 20.9.2002  agreement indicates that even the VHS rights are  purported to have conferred by the plaintiff No. 1  by the plaintiff No. 2 directly and contrary to the  two lease agreements which according to the  plaintiff confers the VHS video rights on the  defendant No. 1 and 2. I am thus of the opinion  that a person whose conduct is of such a nature  that who commits a breach of the agreement and  enters into another agreement and thereafter with  a view to protect atleast part of its rights in  the agreement enters into such a frivolous kind of  litigation as in the present case is not entitled  to any relief much less the equitable relief of  the injunction in the present case. Therefore  also I reject the contention of alleged claim of  breach of copy rights as pleaded by the plaintiff.  I am also of the prima-facie opinion that the  plaintiff having failed to make out any  prima-facie case and in view of the fact that  defendant No. 1 and 2 are exploiting their copy  rights within the rights as conferred under the  said two agreement the plaintiff is not entitled  to any injunction on the alleged ground of breach  of   copy rights.  I therefore dismiss the  motion. The  plaintiffs  to  pay  costs  of  the  motion quantified at  Rs 10,000\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shemaroo Video P. Ltd. And Ors. vs Movie Tee Vee Enterprises And Ors. on 6 October, 2005 Equivalent citations: 2005 (6) BomCR 485 Author: S Kamdar Bench: S Kamdar JUDGMENT S.U. Kamdar, J. 1. The present notice of motion is taken out in the suit preferred by the plaintiff for a declaration […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-149720","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShemaroo Video P. Ltd. And Ors. vs Movie Tee Vee Enterprises And Ors. on 6 October, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shemaroo-video-p-ltd-and-ors-vs-movie-tee-vee-enterprises-and-ors-on-6-october-2005-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shemaroo Video P. Ltd. 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