Full Judgment Text
2010:BHC-OS:4091
Arbp348.10 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.348 OF 2010
WITH
ARBITRATION PETITION NO.349 OF 2010
WITH
ARBITRATION PETITION NO.450 OF 2010
AND WITH
CHAMBER SUMMONS NO. OF 2010
M/s. Magic Lantern Productions, through
Ms.Rajita Sharma, Partner having their its’s
office at E2/203, Inlaks Nagar,
Yari Road, Near MandirMasjid,
Andheri (W), Mumbai 400061 ... Petitioner
Vs.
Creative Eye Ltd.,
Kailash Plaza, Plot No.12A,
New Linki Road, Opp.Laxmi Industrial Estate,
Andheri (W), Mumbai 400053 ... Respondent
Viacom 18 Media Pvt.Ltd., 36B, Dr. R. K.
Shirodkar Marg, Parel (East), Mumbai 400012 .. Intervener/Applicant
Mr. Rajiv Kumar with Mr. Jamshed Mistry with Mr.Rohan Cama, Advocates
for the petitioner.
Mr. Birendra Saraf i/by Ms. Anuja Jhunjhunwala for the respondent.
Mr.V. R. Dhond i/by M/s.Naik & Naik for the Intervenor/applicant.
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CORAM : ANOOP V. MOHTA, J.
th
DATED : 26 March, 2010.
JUDGMENT:
1 All these Petitions are under Section 9 of the Arbitration and
Conciliation Act, 1996 (for short, the Act) for various interim reliefs
pending the institution and continuation of arbitration proceedings arising
out of Memorandum of Understanding (MOU) dated 12.10.2009 between
the parties.
2 The basic facts, issues and the MOU, apart from parties, are common.
Therefore, this common judgment.
3 The basic facts as averred are as under:
The partner of the petitioner, Ms.Rajita Sharma, is a writer and
producer by profession, and had conceptualized the storyline for a
television serial concerning the love story between a Brahmin boy and a
Kayastha girl residing in Lucknow and the prejudices their love affair
evokes from the society as well as from the traditional family of the boy.
4 It is relevant to note, as averred, that by an Oral Agreement between
the parties herein it was agreed that the aforesaid concept created and
owned by the petitioner herein, would be used in a television serial to be
jointly produced by the parties herein with Viacom 18 Media Pvt.Ltd.,
(hereinafter referred to as “Viacom”). Under the said Oral Agreement, it
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was agreed that the petitioner will provide contents and creative
supervision, while the Respondents would be responsible for procuring
finance for the project. To facilitate the above procuring of the finances
and finalization of the budget for the project, the petitioner, upon the
express request of the Respondents therein, furnished a detailed note of the
th
concept for the said television serial on 25 August 2009.
th
5 Pursuant to the above, on 27 August 2009, Viacom entered into a
Production Agreement with the Respondent herein whereunder it was
agreed that a television serial tentatively titled “ISHQ” to be produced by
the parties under the terms and conditions more particularly set out in the
said agreement, and to be aired on the Colours channel (hereinafter
referred to as the “said channel”).
6 Thereafter for the purpose of formalising the aforesaid Oral
Agreement between the parties herein, a series of three MOU in questions
came to be entered into between the parties. The three MOUs pertain to
three individual aspects relating to the conceptualisation and production of
the aforesaid television serial “ISHQ”. The concept was registered under
the name “Prem Vivaah” which was later on changed to “Ishq” in the
contract between Viacom (Intervener) and Respondents finally renamed
and marketed and presented by the name “Yeh Pyaar Na Hoga Kam”.
7 The three MOUs are :
(i) Writers MOU
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(ii)Coproduction MOU
(iii)Creative Directors MOU
8 Under the Writers MOU it was inter alia agreed between the parties
that the petitioner, through its partners, would continue to write and
develop the content of the serial to the satisfaction of the said channel. It is
pertinent to note that clause 4 of the said Writers MOU states as follows:
“Notwithstanding anything otherwise mentioned in the
agreement the writer shall remain associates/engaged with the
project till its completion association/engagement shall
commence on execution of this agreement”
9 Furthermore, under the said MOU, it was provided as follows:
Clause 10
“The credit titles till the existence of this agreement shall be granted
under: Concept, Story, Screenplay and Dialogues Writer.”
Clause 11 :
th
“This above agreement is effective from 27 August, 2009 and shall
be in existence till the life of the said program/serial.”
10 Under the CoProduction MOU it was agreed that the petitioner and
the respondent herein would jointly produce the said television serial
th
pursuant to the agreement dated 27 August 2009 entered into between
the Respondent herein and Viacom. It was further agreed that no financial
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investment would be made by the petitioner herein and all the financial
requirements would be arranged for/met by the respondent herein.
11 Furthermore in the clause 15 it was stated that the MOU could be
terminated only in the following circumstances:
(a) If the serial is stopped, ceased or discontinued,
temporarily or permanently by the channel or by virtue of
Court Order restraining the exhibition of the said serial.
However, temporary cessation of production which resumes
within 60 days from such cessation, shall not affect this MOU
and all terms and conditions contained herein shall continue to
be binding on both parties in equal force and measure.
(b) If the commissioning agreement between CEL and
channel stands terminated or cancelled for any reason
whatsoever.”
Furthermore it bears mention that under clause 17 it was
clearly stated that “this MOU may not be altered or amended
except by an instrument of writing signed by both parties”.
12 By third MOU, referred to as the Creative Directors MOU, it was
agreed between the parties that the partners of the Petitioner herein would
act as the Creative Directors for the said television serial. In the MOU,
Clause 9 provides that “The Credit Title agreed between the parties shall be
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“Creative Director””. Further, Clause 10 of the said MOU/agreement states
as follows:
“The association shall stand termination in case of breach by either
parties or if the production of the said serial is stopped, ceased or
discontinued, temporarily or permanently by the, broadcast channel or by
virtue of the Court Order restraining the exhibition of the said serial.
However temporary cessation of production which resumes within 60 days
from such cessation, shall not affect this Agreement and all terms and
conditions contained herein shall continue to be binding on both parties in
equal force and measure”.
Clause 13 of the MOU, expressly provided that the instant MOU would
remain “in existence till the life of the said program.
13 As alleged, the respondent failed to fulfill its production obligations
under the MOU. Therefore, the petitioner made several oral
representations and also on 7.12.2009, 11.12.2009 and 14.12.2009
emailed and met personally for the same. Separate notices were
exchanged on 21.12.2009 and 24.12.2009, through the Advocates also. On
28.12.2009, the first episode of the said Serial was aired on the said
channel.
14 The petitioner further averred that he was and still ready to comply
with its obligations under the MOU, and will continue to do so in future.
The obligations on the petitioner were to write the script and to provide
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creative vision and content, which the petitioner and its partners duly
fulfilled by providing the concept (for 260 episodes), larger story (for about
a 100 episodes), characterization (for 260 episodes), character graphs (260
episodes), episodic story, screenplay and dialogue drafts and by
supervising the set construction and propping the same to the channel’s
satisfaction (for 260 episodes). The creative vision for the show and has
set it up creatively (for the 260 episodes) which creative vision includes
supervision of costumes, look, casting, briefing to actors and directors,
cameramen, hairstylists, makeup artists etc. The petitioner has averred that
as coproducer its contribution to the said serial was already in place and
approved by the channel for 260 episodes, and the petitioner has not
faltered in complying with its obligations under the said MOU.
15 The petitioner has averred that if the respondent proceeds with it’s
threatened stand of excluding the names of the petitioner and it’s partner
th
from the titles of the said show after 5 episode, grave harm and prejudice
will be caused to the petitioner and it’s partners, who have expanded
considerable time, efforts and money towards conceputulising, creating
and finalising various aspect of said shows as stated hereinabove.
16 The petitioner in this background filed the two petitions on
29.12.2009 and Arbitration Petition No.450/2010 on 8.1.2010. The
petitioner basically prayed similar reliefs in all these matters in the
following terms:
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(a) Pending the institution, continuation and conclusion of the
arbitration proceedings and for a period of three months thereafter, for an
appropriate order or direction of this Hon’ble Court directing the
respondent herein to fulfill its commitments stipulated in the said MOU,
and to refrain from taking any coercive steps including airing any further
episodes of the said serial until due compliance with the aforesaid
commitments.
(b) Pending the institution, continuation and conclusion of the
arbitration proceedings and for a period of three months thereafter, for a
temporary order and injunction restraining the respondent herein, its
servants, agents, associates and/or any other person acting by, through or
under them, from acting or purporting to act in furtherance of the
st
purported notice of termination dated 21 December, 2009, and from in
any manner disturbing, obstructing or adversely affecting the operation of
th
the said MOU dated 12 October 2009 entered into between the petitioner
and the respondent herein.
(c ) Pending the institution, continuation and conclusion of the said
arbitration proceedings and for a period of three months thereafter, for a
temporary order and injunction of this Hon’ble Court restraining the
respondent and/or its agents, associates, servants or any other person
claiming by, through or under them from publishing/forwarding for
publication any correspondence, letters or other media publicity with
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objectionable contents/allegations against the petitioner herein and/or its
partners and/or its employees and associates.
(d ) Pending the institution, continuation and conclusion of the said
arbitration proceedings and for a period of three months thereafter, the
petitioner is entitled to an order of this Hon’ble Court directing that the
respondents complies with it’s obligation under the said MOU, to ensure
display of the names of the petitioner herein and it’s partners in the credit
titles in the said serial pertaining to concept, story, screenplay and
dialogues.
17 In Arbitration Petition No.349/2010, the reliefs are for claiming the
credit, title pertaining to concept story, screenplay and dialogue. In
Arbitration Petition No.450/2010, the claim is in respect of credit title in
the serial pertaining to coproduction thereof.
18 The respondent resisted the same by filing reply on various grounds.
A rejoinder is also filed by the petitioner. A chamber summons is taken out
by Viacom 18 Media Pvt.Ltd., to intervene in the matter.
19 The rights of the petitioner, based upon the MOU is a matter of trial
and inquiry. At this stage, specially in view of the fact that the particular
serial and episodes have already been broadcasted and telecasted as
produced by the respondent by getting every episodes produced through
some other person than the petitioner, though revolving around the basic
storyline and the concept, but the screenplay and dialogues had been
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written by other person than the petitioner under the creative direction of
other director. The broadcaster/ producer has right over such episode/
serial, as recognized under the Copyright Act. The position cannot be
restored back. The serials/episodes, for whatever may be the reason have
already been telecasted under the particular names and banners and,
therefore, now to grant any reliefs to the petitioner without deciding the
merits of her claim and rights, will create more complications and
problems than solving it. The petitioner needs to prove her case first and
then only the relief as prayed can be granted, under Section 9 of the Act.
20 During the final hearing of the matter before the Tribunal, if case is
made out and if it is proved that the respondent is in breach and not the
petitioner, then appropriate relief/compensation/damages may be awarded
by the Arbitral Tribuanl. Therefore, there is no case for interim order or
relief as sought in the present petitions. There is no question of passing of
any order of injunction. Section 9 of the Act cannot be utilised to decide
the merit of the said MOU at this stage itself. Let the Arbitrator do that
after giving full opportunity to both the parties. No prima facie case is
made out. The balance of convenience and equity also do not support the
petitioner.
21 The learned counsel for the petitioner has strongly relied on Suresh
Jindal vs. Rizsoli Corriere Della Sera Prodzoini T.V.S.p.a. And ors., AIR
1991, SC 2092 [ 1991 Supp (2) SCC 3 ] and contended that the
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entitlement of the claim of damages for excluding him from participating in
the production of films is not sufficient. The petitioner wants the
recognition and acknowledgment of their efforts in making the
episodes/serial as the basic concept and idea which are registered and
recognised have been misused and will be misused by the respondent. In
the present case, as noted, the petitioner did render some services/help to
the respondent and the production was commenced, accordingly, but for
the reasons which are in dispute, the said contract/MOU could not be acted
upon by both the parties. The petitioner themselves unable to continue
with the working though agreed. The reason for that is again a matter of
trial and inquiry. The fact remains that the respondent required to obtain
the services of other screenplay and script writer and got the every episode
produced and released as stipulated and announced. This factor itself is
distinct and distinguishes the Supreme Court judgment so relied upon. The
episodes which have been already released by giving credit to the
concerned person/screenplay writer or producer or CoDirectors, and
admittedly which were not made and/or even not attended by the
petitioner in any way except first few, cannot claim such rights. As
recorded above, it is difficult to accept the case of the petitioner to put their
name even on such already released and/or broadcasted serial/episodes. It
is totally unjust and impermissible. The credit needs to be given to the
person who has actually done or made and/or created the particular
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episode from time to time.
22 Before the Supreme Court, Suresh Jindal (Supra) a Suit for specific
performance was filed and injunction was sought restraining the
defendant/respondent from proceeding with the production and exhibition
of a film and also for a direction to display the name as a coproducer.
The present Petitions are under Section 9 of the Act. The Arbitration
proceeding based upon the MOU not yet commenced. The remedy here
also to get the relief of specific performance, but for granting adinterim
relief, as noted above, no primafacie case is made out by the petitioner.
All elements as contemplated under Order 39 of Code of Civil Procedure
(CPC) are missing. The production of a film and distribution of the same at
one stroke just cannot be compared with the production of T.V. Serial
basically when the requirement is to broadcast one episode at one time on
day to day or weekly basis. The initial concept may be modified, tested
and/or even changed in every episode as per the demand. There is no
strict jacket formula, to telecast or broadcast or direct every episode as per
the basic concept as announced initially. In the present case, factually
every episode if written separately by other screenplay/writer and
produced accordingly under the direction of different Director, the claim of
petitioner to put their name and/or to give them credit in the present facts
and circumstances is unacceptable.
23 The aspects of copyrights of the broadcaster, once the serial or
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episodes are released just cannot be overlooked in such matters. The
broadcasters have exclusive right once the serial/episode are released.
That right just cannot be interfered with at this stage. The credit so
claimed, based upon the alleged concept or format of the said
serial/episode, once it is assigned by the petitioner to the respondent,
based upon the agreement/MOU itself, therefore also cannot be granted
except the monetary claim, if any. The petitioner cannot claim credit or
rights even though they have not provided the services to the respondent
and specially after termination of these agreements.
24 Resultantly, as there is no case made out for any and/or any ad
interim relief, all these Petitions are dismissed. However, all points are kept
open to be agitated before the Arbitral Tribunal.
25 In view of above, the chamber summons is also disposed of. No costs.
(ANOOP V. MOHTA, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.348 OF 2010
WITH
ARBITRATION PETITION NO.349 OF 2010
WITH
ARBITRATION PETITION NO.450 OF 2010
AND WITH
CHAMBER SUMMONS NO. OF 2010
M/s. Magic Lantern Productions, through
Ms.Rajita Sharma, Partner having their its’s
office at E2/203, Inlaks Nagar,
Yari Road, Near MandirMasjid,
Andheri (W), Mumbai 400061 ... Petitioner
Vs.
Creative Eye Ltd.,
Kailash Plaza, Plot No.12A,
New Linki Road, Opp.Laxmi Industrial Estate,
Andheri (W), Mumbai 400053 ... Respondent
Viacom 18 Media Pvt.Ltd., 36B, Dr. R. K.
Shirodkar Marg, Parel (East), Mumbai 400012 .. Intervener/Applicant
Mr. Rajiv Kumar with Mr. Jamshed Mistry with Mr.Rohan Cama, Advocates
for the petitioner.
Mr. Birendra Saraf i/by Ms. Anuja Jhunjhunwala for the respondent.
Mr.V. R. Dhond i/by M/s.Naik & Naik for the Intervenor/applicant.
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CORAM : ANOOP V. MOHTA, J.
th
DATED : 26 March, 2010.
JUDGMENT:
1 All these Petitions are under Section 9 of the Arbitration and
Conciliation Act, 1996 (for short, the Act) for various interim reliefs
pending the institution and continuation of arbitration proceedings arising
out of Memorandum of Understanding (MOU) dated 12.10.2009 between
the parties.
2 The basic facts, issues and the MOU, apart from parties, are common.
Therefore, this common judgment.
3 The basic facts as averred are as under:
The partner of the petitioner, Ms.Rajita Sharma, is a writer and
producer by profession, and had conceptualized the storyline for a
television serial concerning the love story between a Brahmin boy and a
Kayastha girl residing in Lucknow and the prejudices their love affair
evokes from the society as well as from the traditional family of the boy.
4 It is relevant to note, as averred, that by an Oral Agreement between
the parties herein it was agreed that the aforesaid concept created and
owned by the petitioner herein, would be used in a television serial to be
jointly produced by the parties herein with Viacom 18 Media Pvt.Ltd.,
(hereinafter referred to as “Viacom”). Under the said Oral Agreement, it
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was agreed that the petitioner will provide contents and creative
supervision, while the Respondents would be responsible for procuring
finance for the project. To facilitate the above procuring of the finances
and finalization of the budget for the project, the petitioner, upon the
express request of the Respondents therein, furnished a detailed note of the
th
concept for the said television serial on 25 August 2009.
th
5 Pursuant to the above, on 27 August 2009, Viacom entered into a
Production Agreement with the Respondent herein whereunder it was
agreed that a television serial tentatively titled “ISHQ” to be produced by
the parties under the terms and conditions more particularly set out in the
said agreement, and to be aired on the Colours channel (hereinafter
referred to as the “said channel”).
6 Thereafter for the purpose of formalising the aforesaid Oral
Agreement between the parties herein, a series of three MOU in questions
came to be entered into between the parties. The three MOUs pertain to
three individual aspects relating to the conceptualisation and production of
the aforesaid television serial “ISHQ”. The concept was registered under
the name “Prem Vivaah” which was later on changed to “Ishq” in the
contract between Viacom (Intervener) and Respondents finally renamed
and marketed and presented by the name “Yeh Pyaar Na Hoga Kam”.
7 The three MOUs are :
(i) Writers MOU
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(ii)Coproduction MOU
(iii)Creative Directors MOU
8 Under the Writers MOU it was inter alia agreed between the parties
that the petitioner, through its partners, would continue to write and
develop the content of the serial to the satisfaction of the said channel. It is
pertinent to note that clause 4 of the said Writers MOU states as follows:
“Notwithstanding anything otherwise mentioned in the
agreement the writer shall remain associates/engaged with the
project till its completion association/engagement shall
commence on execution of this agreement”
9 Furthermore, under the said MOU, it was provided as follows:
Clause 10
“The credit titles till the existence of this agreement shall be granted
under: Concept, Story, Screenplay and Dialogues Writer.”
Clause 11 :
th
“This above agreement is effective from 27 August, 2009 and shall
be in existence till the life of the said program/serial.”
10 Under the CoProduction MOU it was agreed that the petitioner and
the respondent herein would jointly produce the said television serial
th
pursuant to the agreement dated 27 August 2009 entered into between
the Respondent herein and Viacom. It was further agreed that no financial
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investment would be made by the petitioner herein and all the financial
requirements would be arranged for/met by the respondent herein.
11 Furthermore in the clause 15 it was stated that the MOU could be
terminated only in the following circumstances:
(a) If the serial is stopped, ceased or discontinued,
temporarily or permanently by the channel or by virtue of
Court Order restraining the exhibition of the said serial.
However, temporary cessation of production which resumes
within 60 days from such cessation, shall not affect this MOU
and all terms and conditions contained herein shall continue to
be binding on both parties in equal force and measure.
(b) If the commissioning agreement between CEL and
channel stands terminated or cancelled for any reason
whatsoever.”
Furthermore it bears mention that under clause 17 it was
clearly stated that “this MOU may not be altered or amended
except by an instrument of writing signed by both parties”.
12 By third MOU, referred to as the Creative Directors MOU, it was
agreed between the parties that the partners of the Petitioner herein would
act as the Creative Directors for the said television serial. In the MOU,
Clause 9 provides that “The Credit Title agreed between the parties shall be
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“Creative Director””. Further, Clause 10 of the said MOU/agreement states
as follows:
“The association shall stand termination in case of breach by either
parties or if the production of the said serial is stopped, ceased or
discontinued, temporarily or permanently by the, broadcast channel or by
virtue of the Court Order restraining the exhibition of the said serial.
However temporary cessation of production which resumes within 60 days
from such cessation, shall not affect this Agreement and all terms and
conditions contained herein shall continue to be binding on both parties in
equal force and measure”.
Clause 13 of the MOU, expressly provided that the instant MOU would
remain “in existence till the life of the said program.
13 As alleged, the respondent failed to fulfill its production obligations
under the MOU. Therefore, the petitioner made several oral
representations and also on 7.12.2009, 11.12.2009 and 14.12.2009
emailed and met personally for the same. Separate notices were
exchanged on 21.12.2009 and 24.12.2009, through the Advocates also. On
28.12.2009, the first episode of the said Serial was aired on the said
channel.
14 The petitioner further averred that he was and still ready to comply
with its obligations under the MOU, and will continue to do so in future.
The obligations on the petitioner were to write the script and to provide
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creative vision and content, which the petitioner and its partners duly
fulfilled by providing the concept (for 260 episodes), larger story (for about
a 100 episodes), characterization (for 260 episodes), character graphs (260
episodes), episodic story, screenplay and dialogue drafts and by
supervising the set construction and propping the same to the channel’s
satisfaction (for 260 episodes). The creative vision for the show and has
set it up creatively (for the 260 episodes) which creative vision includes
supervision of costumes, look, casting, briefing to actors and directors,
cameramen, hairstylists, makeup artists etc. The petitioner has averred that
as coproducer its contribution to the said serial was already in place and
approved by the channel for 260 episodes, and the petitioner has not
faltered in complying with its obligations under the said MOU.
15 The petitioner has averred that if the respondent proceeds with it’s
threatened stand of excluding the names of the petitioner and it’s partner
th
from the titles of the said show after 5 episode, grave harm and prejudice
will be caused to the petitioner and it’s partners, who have expanded
considerable time, efforts and money towards conceputulising, creating
and finalising various aspect of said shows as stated hereinabove.
16 The petitioner in this background filed the two petitions on
29.12.2009 and Arbitration Petition No.450/2010 on 8.1.2010. The
petitioner basically prayed similar reliefs in all these matters in the
following terms:
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(a) Pending the institution, continuation and conclusion of the
arbitration proceedings and for a period of three months thereafter, for an
appropriate order or direction of this Hon’ble Court directing the
respondent herein to fulfill its commitments stipulated in the said MOU,
and to refrain from taking any coercive steps including airing any further
episodes of the said serial until due compliance with the aforesaid
commitments.
(b) Pending the institution, continuation and conclusion of the
arbitration proceedings and for a period of three months thereafter, for a
temporary order and injunction restraining the respondent herein, its
servants, agents, associates and/or any other person acting by, through or
under them, from acting or purporting to act in furtherance of the
st
purported notice of termination dated 21 December, 2009, and from in
any manner disturbing, obstructing or adversely affecting the operation of
th
the said MOU dated 12 October 2009 entered into between the petitioner
and the respondent herein.
(c ) Pending the institution, continuation and conclusion of the said
arbitration proceedings and for a period of three months thereafter, for a
temporary order and injunction of this Hon’ble Court restraining the
respondent and/or its agents, associates, servants or any other person
claiming by, through or under them from publishing/forwarding for
publication any correspondence, letters or other media publicity with
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objectionable contents/allegations against the petitioner herein and/or its
partners and/or its employees and associates.
(d ) Pending the institution, continuation and conclusion of the said
arbitration proceedings and for a period of three months thereafter, the
petitioner is entitled to an order of this Hon’ble Court directing that the
respondents complies with it’s obligation under the said MOU, to ensure
display of the names of the petitioner herein and it’s partners in the credit
titles in the said serial pertaining to concept, story, screenplay and
dialogues.
17 In Arbitration Petition No.349/2010, the reliefs are for claiming the
credit, title pertaining to concept story, screenplay and dialogue. In
Arbitration Petition No.450/2010, the claim is in respect of credit title in
the serial pertaining to coproduction thereof.
18 The respondent resisted the same by filing reply on various grounds.
A rejoinder is also filed by the petitioner. A chamber summons is taken out
by Viacom 18 Media Pvt.Ltd., to intervene in the matter.
19 The rights of the petitioner, based upon the MOU is a matter of trial
and inquiry. At this stage, specially in view of the fact that the particular
serial and episodes have already been broadcasted and telecasted as
produced by the respondent by getting every episodes produced through
some other person than the petitioner, though revolving around the basic
storyline and the concept, but the screenplay and dialogues had been
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written by other person than the petitioner under the creative direction of
other director. The broadcaster/ producer has right over such episode/
serial, as recognized under the Copyright Act. The position cannot be
restored back. The serials/episodes, for whatever may be the reason have
already been telecasted under the particular names and banners and,
therefore, now to grant any reliefs to the petitioner without deciding the
merits of her claim and rights, will create more complications and
problems than solving it. The petitioner needs to prove her case first and
then only the relief as prayed can be granted, under Section 9 of the Act.
20 During the final hearing of the matter before the Tribunal, if case is
made out and if it is proved that the respondent is in breach and not the
petitioner, then appropriate relief/compensation/damages may be awarded
by the Arbitral Tribuanl. Therefore, there is no case for interim order or
relief as sought in the present petitions. There is no question of passing of
any order of injunction. Section 9 of the Act cannot be utilised to decide
the merit of the said MOU at this stage itself. Let the Arbitrator do that
after giving full opportunity to both the parties. No prima facie case is
made out. The balance of convenience and equity also do not support the
petitioner.
21 The learned counsel for the petitioner has strongly relied on Suresh
Jindal vs. Rizsoli Corriere Della Sera Prodzoini T.V.S.p.a. And ors., AIR
1991, SC 2092 [ 1991 Supp (2) SCC 3 ] and contended that the
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entitlement of the claim of damages for excluding him from participating in
the production of films is not sufficient. The petitioner wants the
recognition and acknowledgment of their efforts in making the
episodes/serial as the basic concept and idea which are registered and
recognised have been misused and will be misused by the respondent. In
the present case, as noted, the petitioner did render some services/help to
the respondent and the production was commenced, accordingly, but for
the reasons which are in dispute, the said contract/MOU could not be acted
upon by both the parties. The petitioner themselves unable to continue
with the working though agreed. The reason for that is again a matter of
trial and inquiry. The fact remains that the respondent required to obtain
the services of other screenplay and script writer and got the every episode
produced and released as stipulated and announced. This factor itself is
distinct and distinguishes the Supreme Court judgment so relied upon. The
episodes which have been already released by giving credit to the
concerned person/screenplay writer or producer or CoDirectors, and
admittedly which were not made and/or even not attended by the
petitioner in any way except first few, cannot claim such rights. As
recorded above, it is difficult to accept the case of the petitioner to put their
name even on such already released and/or broadcasted serial/episodes. It
is totally unjust and impermissible. The credit needs to be given to the
person who has actually done or made and/or created the particular
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episode from time to time.
22 Before the Supreme Court, Suresh Jindal (Supra) a Suit for specific
performance was filed and injunction was sought restraining the
defendant/respondent from proceeding with the production and exhibition
of a film and also for a direction to display the name as a coproducer.
The present Petitions are under Section 9 of the Act. The Arbitration
proceeding based upon the MOU not yet commenced. The remedy here
also to get the relief of specific performance, but for granting adinterim
relief, as noted above, no primafacie case is made out by the petitioner.
All elements as contemplated under Order 39 of Code of Civil Procedure
(CPC) are missing. The production of a film and distribution of the same at
one stroke just cannot be compared with the production of T.V. Serial
basically when the requirement is to broadcast one episode at one time on
day to day or weekly basis. The initial concept may be modified, tested
and/or even changed in every episode as per the demand. There is no
strict jacket formula, to telecast or broadcast or direct every episode as per
the basic concept as announced initially. In the present case, factually
every episode if written separately by other screenplay/writer and
produced accordingly under the direction of different Director, the claim of
petitioner to put their name and/or to give them credit in the present facts
and circumstances is unacceptable.
23 The aspects of copyrights of the broadcaster, once the serial or
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episodes are released just cannot be overlooked in such matters. The
broadcasters have exclusive right once the serial/episode are released.
That right just cannot be interfered with at this stage. The credit so
claimed, based upon the alleged concept or format of the said
serial/episode, once it is assigned by the petitioner to the respondent,
based upon the agreement/MOU itself, therefore also cannot be granted
except the monetary claim, if any. The petitioner cannot claim credit or
rights even though they have not provided the services to the respondent
and specially after termination of these agreements.
24 Resultantly, as there is no case made out for any and/or any ad
interim relief, all these Petitions are dismissed. However, all points are kept
open to be agitated before the Arbitral Tribunal.
25 In view of above, the chamber summons is also disposed of. No costs.
(ANOOP V. MOHTA, J.)
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