Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. 1602 of 2014
Reserved on: April 24, 2015
Date of decision: May 22, 2015
SARTAJ SINGH PANNU ..... Petitioner
Through: Mr. Prasad Rao, Mr. Kailash Pandey
Mr. Ranjeet Singh, Ms. Arunima Pal, Advocates
versus
GURBANI MEDIA PVT LTD & ANR ..... Respondents
Through: Mr. Chander M. Lall, Advocate with
Mr. Gurmehar S.Sistani, Ms. Nancy Roy,
Mr. Anuj Nair, Ms. Nayamat Sistani, Advocates
CORAM: JUSTICE S. MURALIDHAR
J U D G M E N T
% 22.05.2015
Introduction
1. Sartaj Singh Pannu („Pannu‟), a young film Director, is the
Petitioner in this petition under Section 9 of the Arbitration and
Conciliation Act, 1996 („Act‟). Pannu seeks orders restraining Gurbani
Media Pvt. Ltd. (Respondent No.1) and its Chairman and Managing
Director Mr. Harinder Singh Sikka (Respondent No.2) („Sikka‟) from
releasing the film „Nanak Shah Fakir‟ without giving him credit as the
„sole Director‟ of the film.
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2. The Court has, in the judgment that follows, concluded that at the
present stage, without further evidence being led, it is not possible to
conclusively hold that Pannu is the sole Director of the film. The
Court has further concluded that the question whether for the purposes
of Section 2 (v) of the Copyright Act, 1962 (CR Act), a Director of a
film could be considered an „author‟ of an „artistic work‟ would also
depend on the facts of each case. In the present case that determination
is not possible without evidence being led in the arbitration
proceedings. The Court has further concluded that in any event in
terms of the CR Act such a right to be recognised as an „author‟ can be
waived voluntarily. Again, at the present stage, without evidence
being led, the Court is unable to conclude that Pannu was coerced or
otherwise compelled into waiving his rights to be acknowledged as a
Director of the film „Nanak Shah Fakir‟. The Court negatives the plea
of Pannu that independent of the CR Act he has moral rights to the
film, the waiver of which would be opposed to public policy.
Resultantly, the Court declines to grant Pannu the interim relief as
prayed for.
The Agreement
3. Pannu and Respondent No.1 entered into a „Service Agreement for
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Direction‟ on 15 January 2013 at New Delhi whereby Pannu was
engaged as Director of the film. The Agreement refers to Sikka as
„Producer‟ and „the party of the First Part‟. Pannu is described as „the
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Other Party‟ and „party of the second part‟. The preamble clauses in
the Agreement read as under:
“Whereas:
A. The Producer is, inter alia, in the business of
production, distribution and marketing of
cinematographic films including feature films, motion
pictures, advertisement films, television serials, music
videos etc. and other works within the meaning of the
Copyright Act, 1957 for worldwide exploitation on all
formats;
B. Producer has conceived of and is desirous of making a
Feature Film on the life and times of Guru Nanak Dev Ji
tentatively entitled as “Nanak Shah Fakir” and hereinafter
referred to as the “Film”.
C. The other Party has the skill and experience of film
Direction in the Indian film industry and has been
providing his services for the making of the said film for
past several months.
D. WHEREAS on resignation of the existing director of
the said film, the producer has approached the other Party
to provide his service as director in the making of the said
film and the other Party is willing to provide his services
as a Director of the said film.”
4. Clauses 1 and 2 of the Agreement read as under:
“1.The other party hereto agree to provide his service as
director for a motion picture in colour in HINDI, or any
other language as the party of the first part may decide on
the life and times of Guru Nanak Dev Ji tentatively titled
as “Nanak Shah Fakir”, hereinafter referred to as the
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„Film‟. The Lead and Character artistes, music director/s,
lyricist, Story screenplay & dialogue writer as well as all
technicians shall be selected and appointed by the party of
the first part.
2. The said Film shall be produced under the banner of
“Gurbani Media Private Limited” or under any other
banner as the Party of the First Part may deem fit and
proper, provided, however, that irrespective of the name
of the banner, the said Film shall be deemed to be and
treated as DIRECTED by Party of the Second Part.”
5. Clause 4 of the agreement set out the duties entrusted to Pannu and
Clause 5 the rights asserted by Sikka. The said clauses read as under:
“4. The party of the second part, in his capacity as a
director shall
(i) attend all pre-production and production
meetings, budget, conferences, rehearsals and like
matters and assist in the selection of locations, cast
and technicians;
(ii) shall cooperate with the Producer in the
preparation of the proper detailed production
schedule within the said budget (as decided by the
Producer) for the production of the said Film;
(iii) Liaise with the principal personnel involved in
the production of the said Film such as the art
director and the costume designer, principal
cinematographer etc;
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(iv) Direct the said Film at such locations, dates and
time specified in the production schedule and/or the
revised schedules (to be determined mutually) until
the completion of the said Film and the receipt of the
censor certificate. The Director shall not absent
himself on the dates, time and the locations specified
in the production schedule and/or the revised
schedules:
(v) Upon completion of the principal photography
and recording of the said Film, supervise in carrying
out the cutting, titling and editing, post-
synchronization, scoring, dubbing and completion in
order to make due and proper delivery of the said
Film to the Producer.
5. The party of the First Part shall be the sole and
exclusive owner of all the Intellectual Property rights
(IPR) in the said Film and the Script including moral
rights, and shall have the sole authority, right, legal
competence and capacity to deal with and exploit the
entire Rights of the said Picture in any manner it
may deem fit and proper. The Party of the Second
Part shall have no claim over the same under any
circumstance. Said IPR do and shall include re-
making, prequel and sequel rights, animated versions
and character replication of the Film as the same
shall vest with the Party of the First Part. However,
the Party of the Second Part agrees to extend full
cooperation to the Party of the First Part in selling
their rights to the various territorial distributors.”
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6. In consideration of the services, the Respondent No.1 agreed to pay
Pannu Rs. 20,11,000 in instalments as set out in Clause 8 of the
agreement. Under Clause 10 of the agreement, it was stated that in the
event of any delay or disruption that may occur for reasons attributable
to Pannu or if he was unable to deliver the work to the satisfaction of
the Respondent No.1 or if he was in breach of any term of the contract
then the Respondent No.1 could terminate the contract and bring in
appropriate resources to complete the film.
7. Under Clause 11 of the agreement, any and all information, data,
files, systems, publicity designs, promos, software, documentation and
other materials provided or used by Pannu would be considered as
confidential and proprietary property of the Respondent No.1. Clause
11 required Pannu or his licensees and assigns “not to copy, distribute,
or disclose, sell, assign, transfer any such Proprietary Information”. It
was specifically stated in Clause 12 that Pannu would not “disclose,
share, supply or provide any information related to the Film to anyone
including, but not limited to, the print media and electronic media,
without the prior written consent of the Producer”. Under Clause 13,
Respondent No.1 could terminate the contract if Pannu was in material
breach of any provision of the contract. As far as the Respondent No.1
was concerned such material breach would only mean failure to pay
the money pursuant to verification of bills submitted by Pannu.
Clause 18 of the agreement contained the arbitration clause. The
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disputes were to be referred to a sole Arbitrator to be appointed by the
parties and the place of arbitration was to be Delhi.
Allegations and counter-allegations
8. Pannu‟s case is that although para D of the preamble in the above
agreement states that there was an „existing director‟ of the film on
whose resignation Pannu was approached, the said Director, Mr. A.K.
Bir („Bir‟) was in fact only a Director of Photography („DoP‟). Pannu
states that Sikka exploited him till the completion of the shooting of
the film in October 2013. According to him, Sikka harboured
dishonest intentions which were evident from the fact that although
Pannu began shooting the film as Director since October 2012, it was
only in January 2013 that the agreement was executed. According to
Pannu he was new in Mumbai and became a victim of intimidating
tactics adopted by Sikka.
9. The case of Sikka, on the other hand, is that Bir in fact was the first
Director and Pannu was initially his assistant. According to Sikka,
Pannu made it difficult for Bir to continue as Director, and after Bir
left, Pannu stepped in as Director. Sikka alleges that Pannu started
falsely claiming to be a Co-producer, Director and writer of the film.
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On 24 October 2013, Sikka sent an email to Pannu asking him to
refrain from making such claims. Sikka states that even earlier in
October 2012, Pannu claimed to be the Director of the film when in
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fact Bir was the Director. Sikka stated that he even wrote to Tom
Alter, a veteran Bollywood actor, since Pannu had come to Sikka on
Tom Alter‟s recommendations.
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10. In a letter dated 24 October 2014 written to Pannu, Sikka referred
to an incident at Mullanpur where some of the shooting of the film
took place and stated that there were certain financial irregularities that
took place which compelled Sikka to withdraw Pannu‟s authority to
sign on cheque books on behalf of the Respondent No.1 and asked him
to concentrate only on direction. Towards the end of the letter Sikka
advised Pannu to “not interfere in the film any more” but stated that
“you shall indeed be given your due as a director.”
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11. On the very next day i.e. 25 October 2013, Pannu responded to
the mail by stating that it was full of false accusations. Sikka replied
on the same day stating that Pannu‟s contribution “as a director has
been taken on board and shall be given due credit as per your
contract”. Sikka stated that the film was complete and Pannu‟s role as
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Director had ended “today the 25 of Oct. 2013”. He asked Pannu to
submit a mail stating that “you, your company or any of your
associates are not in possession of any data, intellectual property,
MOVs or material directly or indirectly related to our film titled
„Nanak Shah Fakir‟.” Simultaneously, Sikka sent an email to Tom
Alter stating that Pannu‟s role as Director had ended. Sikka requested
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Tom Alter to advise Pannu to keep away from any future interference
in the film.
Pannu’s waiver
12. Sikka states that he discovered that Pannu had been stealing the
footage and digital data of the film in connivance with the Assistant
Director of the film. When Pannu was confronted, he allegedly
admitted to have taken visuals, data, MOVs and footage of the film.
According to Sikka, Pannu returned the said material and also gave a
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written undertaking to him on 22 November 2013 in the following
terms:
“I, Sartaj Singh Pannu, s/o Shri Prakash Singh
Pannu, resident of 103, A Wing, Payal Apartments,
Backside Yari Road, Versova, Andheri West,
Mumbai-400061, hereby certify that I have handed
over all the footage, data, MOV‟s etc to the producer
of the film titled „Nanak Shah Fakir‟. Hereinafter, I
am not in possession of any visuals, data, MOV‟s
footage etc of the said film. After this date, if I, my
company or my associates are found in possession of
any material related to the said film then I shall be
liable to be tried under the law. M/s Gurbani Media
(P) Ltd. shall be free to claim any kind of
consequential loss/damages or both from me.
I further certify that I am not working in parallel on
the said film titled „Nanak Shah Fakir‟ in another
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location/studio related to either sound/vfx/
music/DI/processing labs or all the above.
I shall abide by the producers decision to give me the
credit for the creative contribution so far done. And I
will not stake claim to any intellectual right/or work
yet to be done on the said film. If any material is
found in any VOD/Internet or any other platform,
through myself and any of the associates of mine, I
shall be wholly responsible for any punitive action or
other damages. I also understand that I do not have
any right to claim any kind of intellectual right or
profit or share in the said film and it is entirely at the
sole discretion of the producers”.
13. According to Sikka, despite the above letter, Pannu claimed on the
website of his company Sun Entertainment that he had co-produced
and directed the film and also announced a tentative date of release of
the film in December 2013. Meanwhile, Pannu wrote to the Indian
Motion Picture Producers‟ Association („IMPPA‟) stating that Sikka
had made false accusations against him. Sikka then wrote to Tom
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Alter on 2 January 2014 asking him to intervene. He mentioned the
fact that he had submitted a complaint to the Crime Branch, Mumbai.
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On 13 January 2014, Tom Alter wrote to Sikka stating that the issues
could be settled. He suggested that Pannu could remove the „harmless
announcement from his website‟ and Sikka could state in his credits
that Pannu is the co-writer and director of the film.
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14. It appears that with the intervention of Tom Alter an
agreement was reached between the parties. Pannu swore to an
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affidavit on 17 January 2014 as under:
“To Whom it May Concern
I, Sartaj Singh Pannu, S/o Shri Prakash Singh Pannu,
Resident of 103, A Wing, Payal Apartments, Backside
Yari Road, Versova, Andheri West, Mumbai.400 061, do
hereby declare as under:
1. That I have handed over all the footage, data MOVs
etc. to Sh. Harinder Singh Sikka of M/s. Gurbani Media
(P) Ltd., the producer of the film titled „Nanak Shah
Fakir‟ and hereafter, I am not in possession of any
visuals, data, MOVs, footage etc. of the said film. After
this date, if I, my company or my associates are found in
possession of any material related to the film, then I shall
be liable to be tried under the law. M/s. Gurbani Media
(P) Ltd. shall be free to claim any kind of consequential
loss or damages or both from me.
2. That I am not working in parallel on the said film
titled „Nanak Shah Fakir‟ in any other location/studio
related to either sound/vfx/music/DI/processing labs or
all the above.
3. That I shall abide by the producers decision to give me
the credit for the creative contribution so far done. And I
will not stake claim to any intellectual property or work
OMP 1602/2014 Page 11 of 43
yet to be done on the said film. If any material is found
in any VOD/Internet or any other platform, through
myself or by any of the associates of mine, I shall be
wholly responsible for that and shall also be liable to any
punitive action and other damages.
4. I further hereby state that I am not the Co-Producer of
the said film, not the Co-Writer, nor do I have any claim
in any manner whatsoever, on the film or to any other
credit, except for para 3 above. I am therefore
withdrawing all my complaints from IMPPA and crime
branch Mumbai as well as removing from my companies
websites all claims made by me with respect to the said
film based on the life and teaching of Guru Nanak.
5. That I understand that I do not have any right to claim
any kind of intellectual right or profit or share in the said
film, it is entirely at the sole discretion of the producers.
6. That in past I have used foul and abusive language
against the producer of the said film i.e., Shri Harinder
Singh Sikka and I deeply regret and sincerely apologise
for such foul and abusive language used be me towards
Shri Harinder S Sikka. I assure that I shall refrain myself
from using such unparliamentary/derogatory language
towards him in future.
7. That I also place on record my deep regret for my
misbehaviour and consequent hurt caused to Sh. AK Bir
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(Padam Shree), Bhai Nirmal Singh (Padam Shree) and
others. I do hope that taking into account my
inexperience and relative immaturity, I shall be pardoned
by the elderly gentlemen of high repute. If I am found
flouting any of the above undertaking made by me, M/s.
Gurbani Media Pvt. Ltd and/or Shri Harinder Singh
Sikka would be free to proceed against me in the Court
of law.
8. That I am making this statement in sound state of
mind out of my free will and without any pressure on
me.”
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15. On the basis of the above affidavit, on 22 January 2014 Sikka
addressed a letter to the Senior Inspector of the Crime Branch, Yellow
Gate Police Station, Mumbai enclosing Pannu‟s affidavit which had
been signed in the presence of Tom Alter as witness. Sikka mentioned
in the letter that Pannu has “not only apologized for his conduct and
misbehaviour, he has also categorically stated that the claims made by
him to the Crime Branch are incorrect and false”.
Events post the waiver
16. Pannu, however, now claims that he signed the stamp papers
containing the affidavit on the persuasion and inducement of Sikka as
well as Tom Alter and that he was assured that by doing so he would
get his legitimate dues. Pannu states that he had made a mistake in
OMP 1602/2014 Page 13 of 43
trusting Sikka who proved to be „incorrigible‟ as he thereafter went
about making statements and press releases falsely claiming to be the
Director of the film. Pannu states that he, therefore, got a legal notice
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dated 27 June 2014 issued to Sikka in which inter alia he claimed
that Sikka had got him to sign the affidavit “by exerting duress over
him using the false/malicious FIR registered by you by using your
money power”. The legal notice called upon Sikka to ensure
recognition of the directorial services rendered by Pannu in the film in
his credits failing which he would seek appropriate legal redress.
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17. On 8 July 2014, Sikka replied denying the allegations.
Meanwhile, Pannu approached the Indian Film and Television
Directors‟ Association („IFTDA‟) requesting them to take action to
stop Sikka from misrepresenting to the media as well as the film
industry that he was the Director of the film. IFTDA in turn requested
the Federation of Western India Cine Employees („FWICE‟) to issue a
letter to IMPPA not to approve the publicity/promos of the film, if any
name other than Pannu was displayed as Director. On that basis,
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FWICE wrote to the IMPPA on 16 July 2014 forwarding the request.
18. According to Pannu, the police then started applying pressure
seeking to have him arrested. Pannu applied for anticipatory bail on
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31 July 2014. A statement was made by the police at Yellow Gate
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Police Station on 4 August 2014 that they had been entrusted with the
investigation of FIR No. 2 of 2014. Pannu got issued a public notice
OMP 1602/2014 Page 14 of 43
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on 17 September 2014 in the newspapers stating that he alone should
be recognized as Director of the film. He also issued a legal notice on
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21 September 2014 to various distributors and marketing agents of
the film.
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19. On 26 September 2014 Tom Alter gave an affidavit, to no one in
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particular, stating that he had prevailed upon Pannu on 17 January
2014 to sign the affidavit prepared by Sikka who had stated that he
would give Pannu due credit in the „Nanak Shah Fakir‟ as its director
and co-writer, and also withdraw the FIR registered against Pannu. In
the affidavit Tom Alter stated that he had been acting as a mediator
between Pannu and Sikka. He acknowledged having signed as a
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witness to the affidavit dated 17 January 2014.
20. Pannu, in the meanwhile, appears to have collected letters and e-
mails from various technical personnel involved in the making of the
film acknowledging him as the director of the film. In an email
responding to some of the allegations, Sikka alleged that Bir had been
signed as a Director as well as DoP in August 2012 and held this
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position till 31 December 2012. He stated that Bir who resigned in
December 2012, complained to Sikka and Tom Alter about the
cheating, fraud and abusive language by Pannu. Bir also filed a
complaint with the IFTDA and other associations. Sikka stated that
when Bir resigned he was left with no option but to sign a legal
OMP 1602/2014 Page 15 of 43
contract with Pannu as a Director in January 2013. Sikka stated that he
discovered gross financial irregularities and so withdrew Pannu‟s
authority to sign cheques on behalf of the Respondent No.1.
21. Sikka stated that after removing Pannu as Director in October 2013
he had filed a complaint with the Crime Branch, Mumbai, together
with evidence supporting the theft and fraud by Pannu and his coterie.
He claimed that Pannu apologised to him and returned the stolen film
comprising over four-hours of uncropped and un-watermarked
footage. Sikka claimed that based on Pannu's apology and Tom Alter‟s
repeated requests, he withdrew his complaint from the Crime Branch.
He alleged that Pannu was nevertheless making false claims on his
website that he was the co-producer and writer of the film. Although
Sikka had another FIR registered against Pannu, he claimed to have
deliberately avoided proceeding further lest Pannu‟s career be ruined.
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Sikka also claimed that from 25 October 2013 onwards he had
redone the film and kept Pannu and his coterie away from all the
studios during the film‟s VFX, edit, DI and other creative work. Sikka
claimed that Pannu owed him over Rs. 4 lakhs (with interest) which he
failed to repay despite Tom Alter‟s assurances.
Proceedings in the Bombay High Court
22. Pannu filed Arbitration Petition No. 1682 of 2014 in the High
Court of Judicature at Bombay under Section 9 of the Act against
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Gurbani Media Pvt. Ltd. and Sikka inter alia seeking to restrain them
from distributing, publishing, screening or in any other manner doing
any act of releasing the film „Nanak Shah Fakir‟ without
acknowledging Pannu as the sole Director. The petition was filed on
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17 October 2014. Sikka filed a reply to the said petition on 18
November 2014.
23. In their pleadings, both parties maintained their respective stands.
Enclosed with each of their affidavits were documents purporting to
support their contentions. With his affidavit, Sikka placed on record
emails that he had received from several persons including one dated
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6 October 2014, of Honey Trehan, Casting Director, supporting his
stand.
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24. On 4 December 2014, Pannu got a legal notice issued to Sikka
and Gurbani Media P. Ltd. calling them to pay Rs. 50 lakhs towards
“immense suffering, loss, prejudice, damages, besides mental anguish,
loss of image, defamation, and trauma both mentally and physically”
caused to Pannu. Pannu also proposed names of sole Arbitrator and
sought Sikka‟s consent.
25. In the Bombay High Court, Sikka raised a preliminary objection to
the maintainability of the petition. Inter alia Sikka contended that the
registered office of Respondent No. 1 was in Delhi and the agreement
OMP 1602/2014 Page 17 of 43
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dated 15 January 2013 was also entered into at Delhi. On 26
November 2014, the Bombay High Court accepted the preliminary
objection raised by Sikka and the petition was dismissed as withdrawn
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with liberty to move the appropriate Court. Thereafter, on 12
December 2014 the present petition was filed by the Petitioner.
Proceedings in this Court
26. Notice in this petition was accepted by Sikka who appeared in
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person on 17 December 2014. He informed the Court that at that
stage no permission had yet been taken of appropriate authorities
including the Censor Board for release of the film in India. He stated
that he intended to apply for necessary permission for release of the
film in India in January 2015. After recording the said submission, the
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Court listed the petition for hearing on 6 February 2015.
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27. The Court thereafter heard arguments on 6 February, 4 March
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and 5 March 2015. On 8 April 2015, the Court passed the following
order:
“1. Mr. C.M. Lall, learned counsel for the Respondent
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states that on or before 10 April 2015, an affidavit will
be tendered of Mr. Harinder Singh Sikka, Chairman &
Managing Director, Gurbani Media Pvt. Ltd. on the
following aspects:
(i) Whether a censorship certificate has been
obtained for the film „Nanak Shah Fakir‟ from the
OMP 1602/2014 Page 18 of 43
Censor Board, and if so a copy of the said
certificate and a copy of the application made for
censorship certificate be enclosed.
(ii) The actual credits for direction and production
appearing in the film submitted for censorship
certificate.
(iii) The truth of the interview purportedly given by
Mr. Sikka carried on the website
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BollywoodLife.com with the dateline of 5 April
2015 (a hard copy of which has been provided to
Mr. Lall in the Court).
(iv) Whether while applying for censorship
certificate in Singapore the Petitioner was shown as
the sole Director of the film?
(v) Whether in email addressed to the Petitioner on
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16 October 2013 (a hard copy of which has been
provided to Mr. Lall in the Court) it was stated by
Mr. Sikka that the film was of 2 hrs 35 minutes
duration and has been „locked‟ and would not be
changed thereafter and whether in fact any changes
were made thereafter?
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2. List on 10 April 2015.”
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28. Further arguments were heard on 10 April 2015when inter alia ,
Mr. C.M. Lall, learned counsel for the Respondents tendered a copy of
the certificate issued by the Central Board of Film Certification
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(„CBFC‟) dated 13 March 2015 for the film „Nanak Shah Fakir‟
OMP 1602/2014 Page 19 of 43
(Hindi) Colour. The Court also recorded the statement of Mr. Lall that
he would be filing an affidavit of Mr. Sikka in due course.
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29. In his affidavit dated 13 April 2015, Mr. Sikka stated that “at
least 30% of the film was shot under the direction of Mr. A.K. Bir”
and “after Pannu was removed from the project, substantial changes
were made to the final cut of the film at a huge cost”. Mr. Sikka added
that “four songs were picturized by Mr. A.K. Bir and myself, the
process of which was started in 2014, well after removing Mr. Sartaj
Singh Pannu in Oct 2013”. He added that songs sung by well known
signers were filmed after the exit of Pannu and “today form part of the
film”. He also stated that after the exit of Pannu, “in November 2013,
the entire digital imaging and special effects were included” in which
Pannu had “no role to play”. He further added that in the application
for censorship certificate submitted with the CBFC “we had
mentioned the name of Mr. A.K. Bir as the Director. Even in the film
credits the name of Mr. A.K. Bir is stated as the Director”. He stated
that he had not given any interview to any newspaper or television
channel or any other interview whatsoever, wherein he claimed to be
the Director. He enclosed with the affidavit a newspaper article dated
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6 April 2015 in which Pannu was claiming directorship of the film
although the issue was sub judice . As regards the censor certificate
issued by the authorities in Singapore, Mr. Sikka enclosed with the
affidavit copies of the relevant emails exchanged. Mr. Lall submitted
OMP 1602/2014 Page 20 of 43
that the name of the Director was not provided by Sikka and was
probably picked up from the internet.
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30. A rejoinder affidavit was filed on 13 April 2015 by Pannu in
which he stated that Sikka had knowingly filed a false affidavit “to
mislead, subvert the course of justice” and that Pannu was “deeply
distressed/disturbed by the utter false statements on oath” made by
Sikka It was urged that the Respondent No. 2 was liable for contempt
of Court and perjury. Enclosed therewith were affidavits of several of
the crew associated with making of the film including Sandeep Patil,
Ashok Halder, Mrinal Das, Preetisheel G Singh, Archit D Rastogi,
Mark Troy D‟Souza, Honey Trehan and several others. Most of the
affidavits were related to the shooting of the film which took place at
Mullanpur where according to the deponents of the affidavits, Bir was
not a Director but was working as DoP. Pannu further asserted that
Sikka had earlier falsely claimed himself to be a Director during the
screenings of the film at the Cannes Film Festival, the film festivals in
Toronto and in the United States. He was now falsely stating that he
had not made any such claim. Pannu asserted that the entire movie,
right from the first schedule of shooting till its completion, had been
made under his „sole direction‟. Inter alia, Pannu stated that on the
release of the music of the film the name of the Director was not
mentioned on the CD cover.
OMP 1602/2014 Page 21 of 43
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31. On 16 April 2015 another affidavit was filed by Pannu placing on
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record a letter dated 11 October 2014 of the IFTDA whereby a
request was made to the IMPPA to take immediate action against
Sikka since in the posters of the film there was no mention of the
name of Pannu as Director. The letter ended by saying that “It was the
unbiased decision of the Joint Dispute Settlement Committee,
endorsed by producer‟s own email which confirms that our member‟s
name be included as Director in the promos/publicity/credit titles,
interviews of the film „Nanak Shah Fakir”. While enclosing a copy of
the said letter along with relevant documents, it was stated that
recognition had to be given to Pannu since more than forty members
of the team which made the film vouched for him as Director of the
th
film. Also enclosed with the affidavit was the letter dated 14
November 2014 sent by Sikka to IMPPA stating that since Pannu had
approached the High Court at Bombay, the matter was sub judice and
no longer under the purview of the IMPPA, FWICE and other
federations.
th
32. The film 'Nanak Shah Fakir' was released on 17 April 2015 in
several cinema halls in the country and even abroad. Meanwhile,
th
arguments continued and judgment was reserved on 20 April 2015.
Soon thereafter, news items appeared in the print and electronic media
nd st
on 22 April 2015, with the dateline of 21 April 2015, that Sikka had
decided to withdraw the film following the directions of the Sikh
religious body, the Akal Takht. The news items mentioned that the
OMP 1602/2014 Page 22 of 43
Government of Punjab had already suspended the screening of the
film for two months. The news articles mentioned that Sikka had
“gracefully followed Akal Takht‟s direction” and that the Akal Takht
would constitute a panel and advise the changes to be made in the
film.
33. In view of the above developments, the case was listed for
th
directions on 24 April 2015 and the following order was passed on
that date:
“1. The case was directed to be listed today in light of the
Press reports which indicated that Mr. Harinder Singh
Sikka, Respondent No.2, bowing to the request of the
Akal Takht has temporarily and unconditionally
withdrawn the film from all the cinema halls in India and
elsewhere. Mr. Lall, learned counsel appearing for the
Respondents, confirms this fact and states that Mr. Sikka
will file an affidavit bringing on record the recent
developments. The affidavit be filed within three days
with an advance copy to learned counsel for the
Petitioner.
2. Orders reserved.”
th
34. Sikka has since filed an affidavit dated 29 April 2015 confirming
the above developments. In the said affidavit Sikka stated that the
changes suggested by the Akal Takht might entail re-shooting of select
scenes, re-working the sound design and “creative alterations and
corrections.”
OMP 1602/2014 Page 23 of 43
Submissions of counsel for the Petitioner
35. Mr. Prasad Rao, learned counsel for the Petitioner, submitted:
(i) It is inconceivable that in a feature film, the „captain‟ of the
team making the film, viz., the Director, will not be
acknowledged in the credits of the film for any reason
whatsoever.
(ii) Pannu was the „sole‟ Director of the film and had a right to
be acknowledged as such. Bir was never a Director but only the
DoP. The assertions by Sikka on affidavit to the contrary were
pure falsehood and ought to be rejected. Reliance is placed on
the affidavits of the technical crew who have consistently
acknowledged that Pannu was the sole Director of the film.
(iii) As far as the Copyright Act („CR Act‟) was concerned,
even if in terms of Section 2 (d) (v) the „author‟ in relation to a
cinematograph film or sound recording is only the producer, it
did not mean that a Director was not an author in relation to a
„literary or dramatic work‟, „a musical work‟ and „an artistic
work”. As regards the definition „artistic work‟ under Section 2
(c) of the Act, the role of the Director could be related to sub-
clause (iii) under which an artistic work included “any other
work of artistic craftsmanship”. It is submitted that a Director
can be stated to be a “craftsman” as he is bringing to life a scene
in a film which comprises of several elements. Reference was
OMP 1602/2014 Page 24 of 43
made to an article titled “Moral rights and the English business
community” by Robyn Durie published in 1991.
(iv) There were two independent sets of rights flowing even
under Section 2 (d) of the CR Act. Section 14 which defined
„copyright‟ relating to a cinematograph film dealt with the
commercial rights of exploitation of a film. Section 57 of the
CR Act was concerned with the moral rights of an author,
which were independent of the rights of commercial
exploitation. The failed attempt at introducing an amendment to
Section 2 (d) (v) of the CR Act in 2010 to include a director as a
joint author only meant that in relation to cinematograph film a
Director may not have the commercial rights of exploitation of
the film. It made no difference to the moral rights of a Director
in relation to the film which was acknowledged under Section
57 of the CR Act.
(v) Even de hors the CR Act, as a creator of an artistic work, as
a film maker, a Director had a right to be acknowledged and be
given credit as such. That right could not be taken away either
by statute or by a contract.
(vi) Since the public had a right to know who the Director of a
film was, and under the Cinematograph Act it was mandatory to
disclose that information, any contract under which that right
OMP 1602/2014 Page 25 of 43
was waived would be opposed to public policy and be hit by
Section 23 of the Contract Act, 1872. Alternatively, such waiver
to be valid had to be voluntary.
th
(vii) Neither the letter dated 27 November 2013 nor the
th
subsequent affidavit dated 17 January 2014 given by Pannu
was voluntary. Both were given under extreme distress, duress
and coercion and therefore not valid under law. Tom Alter‟s
th
affidavit dated 26 September 2014 substantiated this
contention of Pannu. The FIRs and the criminal proceedings
arising therefrom were false and invalid. They were used to
coerce Pannu into giving up his right to be acknowledged as
Director.
(viii) The importance attached to the disclosure of the name of
the Director of the film was evident from the information
sought by the CBFC in the application made to it for grant of
censorship certificate. Even in awards announced for the films
considerable importance is given to the prize announced for the
best Director. Pannu was not agreeable to Sikka‟s offer of
acknowledging him for creative contribution, but not as sole
Director, as that would be adding insult to injury.
OMP 1602/2014 Page 26 of 43
(ix) Since the entire reputation of a Director depended on being
acknowledged as the maker of the film, and since the Director
enjoyed a pre-eminent position as far as the credits for the film
was concerned, the failure of Sikka to do so would cause
irreparable harm and injury to Pannu which can never be
adequately compensated in terms of damages. The balance of
convenience in the Court issuing a mandatory interim injunction
restraining Respondent No.1 and Sikka from exhibiting the film
without giving credit to Pannu as the film‟s sole Director was
therefore entirely in favour of Pannu.
Submissions of counsel for the Respondents
36. In reply to the above arguments, it was submitted by Mr. C.M.
Lall, learned counsel for the Respondents, that:
(i) The case of the Respondents was based not only on the
provisions of the CR Act but also on the rights and obligations
flowing from the contract between the parties. As far as the CR
Act is concerned, under Section 2 (d) (v) of the CR Act only the
producer of a cinematograph film is acknowledged as its author.
Even under Section 14 (d) of the Act the exclusive rights in
respect of a cinematograph film are available only to the author.
Under Section 17(a) the author is the first owner of the
copyright in the cinematograph film and it is he who can be
OMP 1602/2014 Page 27 of 43
acknowledged as the owner having the right to assign it in
favour of anyone else under Section 18 of the Act.
(ii) The legislative intent behind Section 2 (d) (v) was plain that
a Director was not the „author‟ of a cinematograph film, for the
purposes of either Section 14 or Section 57 of the CR Act.
Outside of the CR Act there could be no copyright or even a
moral right in a work. The failed attempt in 2010 at amending
the law to overcome the lacuna and a comparison with the
provisions in Sections 10 (1A) and 77 (6) of the Copyright,
Designs and Patent Act, 1988 of the United Kingdom (UK) ,
only reinforced the above legal position.
(iii) The expression „artistic craftsmanship‟ in Section 2 (c) (iii)
of the CR Act had to reflect the production of durable
handmade objects in a skilful way. It was never meant to and
could not be interpreted to include the contribution by a
Director to the making of a cinematograph film. Likewise he
could not be an author, much less a joint author in relation to a
literary or dramatic work or a musical work.
(iv) Even for the purposes of Section 57, moral rights would
vest only in the „author‟. Therefore, under the CR Act, there
was no moral right of a Director in a cinematograph film. There
OMP 1602/2014 Page 28 of 43
was no copyright or even a moral right outside of the CR Act
and the same was evident in Section 16.
(v) Under Section 21(1) of the CR Act, the author of a work
may relinquish any or all of the rights comprised in the
copyright by giving the notice in the prescribed form to the
Registrar of Copyright or by way of public notice. That the
rights if any of the Director including moral rights could be
waived was implicit in the provisions of the CR Act. However,
for such waiver to be valid, it had to be voluntary.
(vi) There was no public policy involved as far as the
acknowledgement of the rights of a Director in a film was
concerned. It is possible that a person may not want to be
acknowledged as a Director.
(vii) The agreement signed by both parties itself states that there
was a director previous to Pannu on whose exit Pannu was
engaged. Bir was the Director of the film earlier to December
2012 and subsequent to October 2013 and was involved at the
post-production stage as well. Pannu directed around 70% of
the film, and was not its sole Director.
OMP 1602/2014 Page 29 of 43
th
(viii) Pannu had by letter dated 27 November 2013 and his
th
affidavit dated 17 January 2014, voluntarily waived his rights
to be acknowledged as Director. The waiver by Pannu of his
right to be acknowledged as Director not just once but twice
was voluntary. The affidavits now produced by Pannu of crew
members including that of Tom Alter could be only tested in
evidence and could not be taken to be conclusive of the question
whether Pannu had in fact waived his rights under any coercion
or duress.
(ix) Pannu had been caught „red handed‟ stealing the film
material and falsely claiming to be the co-producer. In the film
industry, this was a serious misconduct which could not be
excused. Pannu consciously took a call on avoiding the criminal
proceedings and therefore waived his rights to be acknowledged
as Director. It was on that basis that Sikka withdrew the
criminal case against Pannu. In the circumstances, Sikka was
justified in insisting that Pannu should not be mentioned as
Director in the credits as that would harm the reputation of the
film which was based on the story of a pious person. Sikka was
nevertheless prepared to give Pannu credit for having made
„creative contribution‟ to the film.
(x)The relief of an interim mandatory injunction as prayed for
could never be granted by the Court. Pannu had himself prayed
OMP 1602/2014 Page 30 of 43
for an alternative relief of damages. The balance of convenience
was in favour of the Respondents. They cannot be compelled at
an interlocutory stage to give Pannu credit as sole Director as
that was without factual or legal basis.
Was Pannu the sole Director of the film?
37. The first issue that arises is whether Pannu was the „sole‟ Director
of „Nanak Shah Fakir‟ as claimed by him? To recall the agreement
th
dated 15 January 2013 between the parties, it is seen that in the
preamble clause (D) there is a reference to “resignation of the existing
director of the said film”. Although it was argued by Mr. Rao that this
was an erroneous statement, it appears that even from the letters of the
film crew produced by Pannu along with the petition filed by him in
the Bombay High Court, and in the affidavits placed of such crew
members before the Court, it is acknowledged that in the initial phase
the services of Bir was engaged both as Director and DoP. Apart from
Sikka‟s own affidavits asserting that Bir was initially the Director,
th
there is a letter of Honey Trehan dated 6 October 2014 addressed to
Bir in which he states that Bir was both the Director as well as DoP.
st
Bir‟s letter dated 1 July 2014 addressed to IFTDA also states that
“Even though I was signed as the Director and the DOP by M/s.
Gurbani Media Pvt. Ltd, he (Pannu) continued to overly dishonour the
agreement by making compulsive indulgence in directorial venture
nd
with the help of 2 camera operator.”
OMP 1602/2014 Page 31 of 43
38. In the affidavits of some of the film crew enclosed with Pannu‟s
th
affidavit dated 13 April 2015 it is stated that at the Mullanpur
shooting it was Pannu and not Bir who was the Director and that Bir
was the DoP. One of the affidavits is of Honey Trehan. In a sense
therefore Honey Trehan appears to be contradicting himself. The other
person who has given an affidavit is Archit D. Rastogi who states that
at Mullanpur it was Pannu who was directing the film and Bir was the
DoP. However, before the Bombay High Court, Sikka produced an
th
email of Rastogi dated 8 November 2014 in which he states that “I
was made aware that Shri A.K. Bir was signed as the Director of
Photography & Director for the said film in August 2010 and
remained in position till December 2012.” Rastogi further stated that
“post this Mr. A.K. Bir joined back after Mr. Sartaj Singh Pannu was
removed from his service in October 2013”.
39. The above affidavits depict a contested position on whether Pannu
was the „sole‟ Director as claimed by him. The supporting affidavits
produced by Pannu are silent on whether, prior to the Mullanpur phase
of shooting, Bir was indeed the Director and whether he re-joined as
Director after October 2013 when Pannu quit as Director. On his part
Sikka does not deny that Pannu was one of the Directors of the film.
He, however, asserts that 30% of the film was shot with Bir as
Director. He further states that Bir was the Director at the post-
production stage. Pannu has not averred that the statement made in the
th
preamble Clause D of the agreement dated 15 January 2013 about the
OMP 1602/2014 Page 32 of 43
„resignation‟ of the „existing Director‟ is incorrect. The assertions to
the contrary during arguments by Mr. Rao cannot possibly rewrite that
clause. Pannu also has not been able to contradict Sikka‟s assertion
that it was Bir, and not Pannu, who was involved in the post-
production phase of the film, which was within the scope of the
Director‟s work in terms of the agreement. Then there is Sikka‟s
assertion that after Pannu left, Bir as Director had picturized four
songs that were added to the film.
40. Although Mr. Rao repeatedly urged that Sikka had falsely claimed
to be the Director of the film, Mr. Lall denied that Sikka ever made
such a claim. Mr. Lall emphasised that Sikka was justified in denying
Pannu credit as Director but was prepared to acknowledge his
„creative contribution‟. Mr. Rao however stated on instructions that
Pannu would not be content with anything short of being credited as
„sole Director‟.
41. Given the conflicting positions that emerge from the above
documents and pleadings, it is unsafe for the Court at this stage to
come to even a prima facie conclusion on the question whether Pannu
was, as asserted by him, the „sole‟ Director of the film. That question
requires a detailed examination of the evidence including the cross-
examination of the deponents of the various affidavits that have been
tendered.
OMP 1602/2014 Page 33 of 43
The position of the Director under the CR Act
42. The next question that arises is since even Sikka acknowledges
that Pannu is a Director of the film, although not its sole Director, can
Sikka justifiably deny Pannu credit as Director in the posters, publicity
material and the credits appearing in the film? If the answer to the
above question is in the negative, the further question that would arise
is whether the Court in exercise of its power under Section 9 of the
Act can issue an interim mandatory injunction to the Respondents not
to continue exhibiting the film without giving Pannu credit as Director
or whether the only remedy available to Pannu is to seek damages?
The answers to the above questions require examination of the nature
and extent of the rights of a Director of a cinematograph film under
the CR Act and otherwise.
43. Section 16 of the CR Act makes it explicit that there shall be no
person entitled to copyright “otherwise than under and in accordance
with the provisions of this Act”. As regards a cinematograph film and
its sound recording, Section 2 (d) (v) acknowledges only the producer
of the film as the author. It does seem anomalous that a Director of a
film, who is usually the moving force behind the creative work that
goes into its making, would not be statutorily acknowledged as an
author or even as joint author. This is even more evident when the
provisions of the corresponding law in the U.K. are examined. Under
Section 10(1A) of the Copyright, Designs and Patent Act, 1988 in the
OMP 1602/2014 Page 34 of 43
UK, a film shall be treated as a work of “joint authorship unless the
producer and the principal director are the same person”. Under
Section 9 (1) an „author‟ in relation to a work is “the person who
creates it”. Section 9 (2) (ab) states that both the producer and the
principal director are the „author‟ of a film. Section 77 (6) of the UK
Act states: “The director of a film has the right to be identified
whenever the film is shown in public or communicated to the public or
copies of the film are issued to the public”. The absence of any similar
provisions in the Indian CR Act is telling.
44. An attempt was made in 2010 to fill this lacuna. An amendment
was moved in the Indian Parliament by the Minister of Information &
Broadcasting but the entire discussion appeared to centre around on
the rights of a director to royalties. The proposed amendment sought
to introduce in Section 2(d) (v) the „principal Director‟ also as an
author of a cinematograph film. That would have also taken care of
Section 57 of the Act which recognizes the moral rights of authors.
The Minister, who tabled the amendments, was unable to convince the
Standing Committee which turned down the amendments. The
Minister spoke eloquently when he stated:
“All over the world, there is equitable distribution of royalties.
But unfortunately this is not what has been happening in India.
Actually, I wanted to give this right to the principal director of
films as well. Ultimately, in a film, who are the real artists?
They are those who sing songs, those who perform, and those
who direct the film. Now a Director is kept out of any profits of
OMP 1602/2014 Page 35 of 43
the film. He is the one who actually creates the architecture of
the film. But unfortunately he does not share any part of the
royalty because there is no risk capital involved. It is the
producer who risks his capital. Though I made this
recommendation to the Standing Committee that the
principal director should also partake of the profit, the
Standing Committee had thought in its wisdom that the time
has not come for the principal director to be included and
he too share in the profit of the business. So, I have, in fact,
dropped those amendments and I have not pressed on
them ”. (emphasis supplied)
45. With the amendment not getting passed, as of now the CR Act
does not acknowledge a director as an „author‟ in relation to a
cinematograph film. Since the moral rights flowing from Section 57 of
the CR Act also presuppose authorship, it would appear that in relation
to a cinematograph film, a Director would not be able to assert any
moral rights either. However, that is not the end of the matter. The
alternative argument of Mr. Rao appearing for Pannu is that
notwithstanding the failed attempt at amending Section 2 (d) (v) of the
CR Act, the right of a Director of a film to be acknowledged as an
„author‟ of a „literary or dramatic work‟ [under Section 2 (d) (i)], or
„musical work‟ [under Section 2 (d) (ii)] or „artistic work‟ [under
Section 2 (d) (iii)] and to the extent the above works are computer
generated [under Section 2 (d) (v)] remains unaffected. The argument
is posited on the Director being integral to and involved in all
departments of film making. The argument foregrounds an image of a
director as a „captain‟ of a film making team. This right, according to
OMP 1602/2014 Page 36 of 43
Mr. Rao, is independent of the right to commercially exploit the
copyright in a film which may have been the central focus of the failed
attempt at amending the law. Even while it is conceded that for a
literary or dramatic work or a musical work, there would have to be a
statutory recognition as „co-author‟, it is submitted by Mr. Rao that a
Director is a creator of an „artistic work‟, i.e. a work of „artistic
craftsmanship‟[Section 2 (c) (iii)].
46. Indeed, there have been remarkable film directors whose work
transcends the category of „direction‟. These are the genre of Directors
who are renowned „film makers‟. Illustratively, Satyajit Ray, Akiro
Kurasawa, Ingmar Bergman, Alfred Hitchcock are legendary figures
who belong to the genre of „film makers‟. They are known to have
been intimately involved not just in directing the film but in every
aspect of its making from its conception to the final product exhibited
on the screen. Indeed, it is not unusual that a director will typically be
involved in all or many of the stages of film making - the development
of the story line, the casting of actors, the lyrics, the musical score, the
dialogues, and during the actual filming, the position or angle of the
camera, the lights, the layout of the scene, ensuring continuity and so
on. Everything that happens in a film usually passes through the
Director. The extent of involvement of the Director in departments
other than direction will obviously vary from case to case. A „film
maker‟ Director brings to the film a characteristic style. Ingmar
Bergman is known to have adopted certain techniques different from
OMP 1602/2014 Page 37 of 43
his contemporaries. In a book titled ‘Ingmar Bergman: A Reference
Guide’ by Birgitta Steene (Amsterdam University Press, 2005) there is
the following quote attributed to him (at p.139): “I say my films are
good craftsmanship. I am diligent, conscientious and extremely
careful. I make my work for daily use and not for eternity. My pride is
that of a craftsman.”
47. Turning to Section 2 (d) (i) of the CR Act, it is clear that an author
in the case of a literary ordematric work would be the author of the
work. Unless it is shown that a Director contributed substantively to
the ultimate product, which would be a matter for evidence, it would
be difficult to conclude that a Director has an automatic right of joint
authorship in respect of the above works merely because he provided
certain inputs. The same would be the position as far as a musical
work [defined under Section 2 (d) (ii)] is concerned, where it is the
composer alone who is acknowledged as the author.
48. Turning to an author of an „artistic work‟ in terms of Section 2 (d)
(iii), the considerations may be different. The expression „artistic
work‟ is defined under Section 2 (c) (iii) of the CR Act to mean “any
other work of artistic craftsmanship”. Although it was sought to be
suggested by Mr. Lall that craftsmanship means some actual work
done by hands like painting or sculpting, the Court is not prepared to
adopt such a narrow interpretation of the expression. What constitutes
a work of art has evolved over time. We are in an age of multimedia
OMP 1602/2014 Page 38 of 43
art installations, where an artist might work on several media, in a
single comprehensive presentation, to express or convey a creative
moment or feeling or emotion. When it comes to directing or making a
film, the „directorial touches‟ that a Director imparts to the film cannot
be confined to any particular oeuvre. The expression „artistic
craftsmanship‟ is wide enough to accommodate the effort of a film
maker director who brings to the final product a distinctive style, an
„artistic touch‟ so as to qualify for acknowledgment as an „artist‟ in
relation to an „artistic work‟.
49. At the same time, it is not every directorial effort that can qualify
for being considered an „artistic work‟. That will again depend on an
evaluation or assessment of the work, by experts, based upon some
objective criteria. The most apposite analogy would be the work of
juries in film festivals. Whether the work of a Director in a particular
film can be stated to be a work of artistic craftsmanship will be a
matter for evidence. In the case on hand, it is difficult for the Court at
the present stage to form even a prima facie opinion that Pannu‟s
directorial effort in the film is a work of artistic craftsmanship.
Waiver of the right of a Director
50. Even if one were to proceed on the basis that Pannu is able to
somehow conclusively establish that he is the sole Director of the film,
and further that his effort qualifies as a work of „artistic
OMP 1602/2014 Page 39 of 43
craftsmanship‟, the further question that arises is whether he could
have, and did in fact, voluntarily waive his right to be given credit as
the Director of the film? The further question is whether the Director
can also waive his moral right if any to be acknowledged as the
Director of a film.
51. The submission of Mr. Rao that outside of the CR Act there exists
a moral right in a work of art does not appear to have a statutory basis.
For the purposes of Section 57 it is only an author in relation to any
copyrighted work who can assert moral rights. Prima facie, it appears
that Section 57 is tied up with the concept of „author‟ as defined under
the CR Act.
52. In response to a query whether a Director can decide to not want
his name to be associated with a film which he considers harmful to
his reputation, Mr. Rao submitted that such a waiver would be
contrary to public policy since the public would have a right to know
who the Director of a film was. However, the Court is not prepared to
go as far as to deny the right of a Director to waive his right to be
credited as such if for any reason he does not want his name to be
associated with the film. As long as the waiver is voluntary, it cannot
be said to be opposed to public policy. The mandatory declaration of
the name of the Director in the application for a censor certificate is
sufficient to satisfy the requirement of the right of the public to know
who the Director is.
OMP 1602/2014 Page 40 of 43
53. Turning to the facts of the present case the waiver by Pannu of his
right to be recognized as a Director is explicit both in a letter written
th
by him to Sikka on 27 November 2013 and in the subsequent
th
affidavit given by him on 17 January 2014. Although Pannu asserts
that the said letter and the affidavit were signed by him under duress
th
and coercion and also relies on the affidavit of Tom Alter dated 26
September 2014 in support, the Court is of the view that this is a
matter which will require a detailed examination of the evidence to be
led by the parties. Pannu appears to have benefited from such waiver
since Sikka withdrew his criminal complaint against Pannu as a result
of the waiver.
54. Again, it would be unsafe to proceed on the basis of Pannu's
affidavits that the criminal case against him was false and fabricated.
If indeed the affidavit dated 17th January 2014 was obtained by Sikka
from Pannu under coercion and duress, Pannu could have at any time
soon thereafter resiled from such affidavit and be prepared to face the
criminal proceedings. However, Pannu does not appear to have
adopted that course. He also did not take steps to have the said
criminal complaint quashed. It is difficult at this stage for the Court to
take a view one way or the other on these assertions.
55. The net result is that at present the Court is unable to even prima
facie conclude that Pannu was compelled to waive his rights to be
acknowledged as Director of the film under duress and coercion and
OMP 1602/2014 Page 41 of 43
that therefore such waiver should not be taken note of by the Court,
while deciding Pannu‟s plea that the film should not be released
without giving him due credit as a Director.
Can the relief of a mandatory temporary injunction be granted?
56. The last issue of course is whether the Court can in any event at
this stage restrain the continued exhibition of the film without Pannu
being given the credit as a Director. The Courts does not find it
possible to grant such a relief at this stage. This is one of those cases
where the grant of such an interim relief would amount to grant of the
final relief at the interlocutory stage.
57. For the above reasons, the Court is of the view that Pannu has been
unable to make out a prima facie case that he should be given credit,
even at this stage, as the sole Director of the film 'Nanak Shah Fakir'.
Further, the balance of convenience in granting such interim relief also
does not appear to be in his favour. If Pannu succeeds ultimately in
showing that he was wrongly denied credit, his plea for the alternate
relief of damages can be considered at that stage.
Conclusion
58. Consequently, the Court is unable to grant Pannu any of the
interim reliefs as prayed for at this stage. This order will not preclude
OMP 1602/2014 Page 42 of 43
the parties from seeking appropriate interim reliefs in the arbitral
proceedings in accordance with law. The Court clarifies that this order
contains its prima facie observations on merits and will not influence
the final determination of the issues and the contentions thereon of the
parties in the arbitral proceedings.
59. The parties have requested the Court to appoint a sole Arbitrator,
in this petition itself, to adjudicate their disputes. The Court
accordingly appoints Justice K.P.S. Radhakrishnan, a former judge of
the Supreme Court, as sole Arbitrator to adjudicate their disputes,
including their claims and counter-claims. The arbitration will take
place under the aegis of the Delhi International Arbitration Centre
(DAC). The fees of the learned Arbitrator will be in terms of the Delhi
Arbitration Centre (Arbitrators Fees) Rules.
60. The petition is disposed of in the above terms but with no order as
to costs. A certified copy of this order be delivered forthwith to the
learned Arbitrator and the Additional Coordinator, DAC.
S.MURALIDHAR, J
MAY 22, 2015
mg
OMP 1602/2014 Page 43 of 43