Full Judgment Text
2023:DHC:2879
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of Decision : 28 April, 2023
+ CS(COMM) 57/2017, I.A. 15601/2017 (for directions u/S 151 of
CPC)
SAREGAMA INDIA LIMITED ..... Plaintiff
Through: Mr.Ankur Sangal and Ms.Trisha Nag,
Advocates.
versus
ZEE ENTERTAINMENT ENTERPRISES LIMITED ..... Defendant
Through: Ms.Petal Chandhok and Ms.Rupali
Gupta, Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
AMIT BANSAL, J. (Oral)
I.A. 5070/2023 (O-XIV R-5 of CPC)
1. The present application has been filed on behalf of the plaintiff under
Order XIV Rule 5 of the Civil Procedure Code, 1908 (CPC) to frame an
additional issue.
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2. Notice in the application was issued on 15 March, 2023 and reply
has been filed on behalf of the defendant.
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3. Following issues were framed on 28 November, 2019:
“ i) Whether the defendant is infringing the copyright of the
plaintiff in the plaintiff’s songs, including the underlying
literary and musical works contained therein? (OPP)
ii) Whether the defendant is stopped from challenging the
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rights of the plaintiff in the sound recordings and underlying
literary and musical works of the cinematograph films forming
the subject matter of the present suit? (OPP)
iii) Whether the plaintiff is entitled to any damages, if so, to
what amount? (OPP)
iv) Cost.
v) Relief. ”
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4. On 16 December, 2022, a Local Commissioner was appointed to
record the evidence in the matter. Evidence by way of affidavit has been
filed on behalf of the plaintiff, however, the evidence is yet to be recorded.
5. Senior counsel appearing on behalf of the plaintiff submits that while
preparing for the evidence in the matter, it came to the notice of the plaintiff
that inadvertently, the issue regarding rendition of accounts by the defendant
has not been framed. Accordingly, the present application has been filed to
frame an issue with regard to the aforesaid.
6. Senior counsel appearing on behalf of the plaintiff has drawn the
attention of the Court to paragraph 15 of the plaint where averments with
regard to rendition of accounts by the defendant have been made. The
contents of the said paragraph have been denied by the defendant in his
written statement.
7. Counsel appearing on behalf of the defendant submits that no such
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issue with regard to rendition of accounts was framed by the Court on 28
November, 2019, when the issues were being framed in the suit. This was
because the relationship between the plaintiff and the defendant was
governed by a License Agreement in terms of which annual license fee was
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payable by the defendant to the plaintiff. Therefore, there was no question of
the defendant providing a statement of accounts and hence, such an issue
was not framed. It is further submitted that the present application has been
filed in a highly belated matter i.e., more than three years after the framing
of issues.
8. In rejoinder, senior counsel appearing on behalf of the plaintiff
submits that the License Agreement between the plaintiff and the defendant
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was terminated on 30 December, 2016 and thereafter, there is no subsisting
contract between the parties and the payments are being made by the
defendant to the plaintiff only in terms of interim orders passed by this
Court.
9. I have heard the counsels for the parties.
10. In terms of Order XIV Rule 1 of the CPC, the Court is required to
frame issues upon all material propositions of fact or of law on which the
parties are at variance. Order XIV Rule 5 of the CPC empowers the Court to
amend issues or frame additional issues before passing a decree if such
issues may be necessary for determining the matters in controversy between
the parties.
11. At this stage, a reference may be made to paragraph 15 of the plaint,
which is set out below:
“ 15. That the Plaintiff submits that the likely losses, damages
and harm to the Plaintiff’s business due to the unlawful acts of
the Defendants are unquantifiable and irreparable and the
same can only be quantified by rendition of accounts by the
Defendant. However, at this stage, the Plaintiff has
provisionally valued the present suit for the purpose of
jurisdiction at Rs.1,10,00,000/- and seeks liberty of the Hon’ble
Court to enhance the same after the rendition of accounts by the
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Defendant. ”
12. In its written statement, the defendant has simply denied the contents
of the aforesaid paragraph and therefore, it is clear that the parties are at
variance on the issue, whether the plaintiff is entitled to rendition of
accounts and therefore, an issue to this effect is required to be framed for
proper adjudication of the present suit.
13. The Court while framing an issue need not go into the fact that
whether any of the parties would be ultimately able to prove the aforesaid
issue or not. Therefore, the submission of the defendant that the defendant is
maintaining any accounts or not is not relevant at this stage.
14. Undoubtedly, there is an inordinate delay on behalf of the plaintiff in
moving the present application. However, in view of the provisions of Order
XIV Rule 5 of the CPC, an application for framing additional issues cannot
be rejected only on the ground of delay, if otherwise, the Court is of the
view that additional issues are required to be framed in the facts and
circumstances of the case and such issues are necessary for determining the
controversy between the parties.
15. In view of the above, I am of the considered view that the additional
issue as sought to be framed is essential for the just and effective
adjudication of the controversy in the present case and therefore, has to be
framed.
16. Filing of the aforesaid application in a belated manner has caused
delay in the recording of evidence. Hence, the plaintiff is directed to pay
costs of Rs.50,000/- to the defendant.
17. Accordingly, the present application is allowed.
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I.A. 5071/2023 (O-XI R-5 of CPC)
18. The present application has been filed on behalf of the plaintiff under
Order XI Rule 5 of the Civil Procedure Code, 1908 (CPC) as applicable to
commercial suits under the Commercial Courts Act, 2015 seeking to placing
on record additional documents.
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19. Notice in the application was issued on 15 March, 2023 and reply
has been filed on behalf of the defendant.
20. By way of the present application, the plaintiff seeks to place on
record the documents, as provided in paragraph 7 of the application.
21. Senior counsel for the plaintiff submits that the aforesaid documents
are sought to be filed to counter the case set up by the defendant in its
written statement and hence, the said documents could not be filed along
with the plaint. It is further submitted that the aforesaid documents are being
filed in terms of Section 55(2) of the Copyright Act, 1957 to show
presumption of ownership of copyright of the plaintiff in respect of the
sound recordings and underlying literary and musical works.
22. It is further submitted that the documents now sought to be filed are
relevant and necessary for the adjudication of the present case. The
recording of evidence is yet to begin in the present case and therefore, no
prejudice would be caused to the defendant if the aforesaid documents are
taken on record. Reliance is placed on the following judgments:
(i) Jai Pal Shishodia v. Poonam Rathore , 2012 SCC OnLine Del
3679
(ii) Atcom Technology Co. Ltd. v. Rahul Gupta , 2023 SCC OnLine
Del 1110
(iii) Mohd. Islamuddin v. S.S. Kapoor , 2022 SCC OnLine Del 3608
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23. In the reply to the present application, the submissions made on behalf
of the defendant are as follows:
i. It was the plaintiff’s obligation to establish title in the works that are
subject matter of the present suit at the time of filing the suit and
therefore, the plaintiff should have filed the aforesaid documents
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along with the plaint. Reliance is placed on the e-mail dated 27
December, 2016 sent by the defendant to the plaintiff, where the
defendant had called upon the plaintiff to supply the catalogue of its
entire repertoire.
ii. Reliance is also placed on an earlier suit, being CS(COMM) 3/2017
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filed by the defendant against the plaintiff on 2 January, 2017. The
defendant herein, who was the plaintiff in the said suit had
specifically stated that the plaintiff in the present suit does not have
any rights in respect of its claimed repertoire.
iii. The documents sought to be filed by way of the present application
are not covered within the scope of Order XI Rule 1 (c) (ii) of the
CPC as applicable to commercial suits and the said documents being
in power and possession of the plaintiff should have been filed along
with the plaint.
iv. Without prejudice to the aforesaid submissions, even if the documents
were covered within the scope of Order XI Rule 1 (c) (ii) of the CPC
as applicable to commercial suits, at the very latest, they should have
been filed along with the replication. Therefore, the additional
documents cannot be permitted to be taken on record at this stage.
v. The plaintiff has failed to show any reasonable cause for not filing the
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aforesaid documents with the replication. Reliance in this regard is
placed on the judgments in Nitin Gupta v. Texmaco Infrastructure &
Holding Limited , 2019 SCC OnLine Del 8367, Bela Creation Pvt.
Ltd. v. Anuj Textiles , 2022 SCC OnLine Del 1366 and Rishi Raj v.
Saregama India Ltd. , 2021 SCC OnLine Del 4897.
24. I have heard the counsels for the parties.
25. At the very outset, reference may be made to some of the relevant
dates in the present suit.
DATE EVENT
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19 January, 2017 Suit was filed.
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13 July, 2017 Written statement was filed.
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13 February, 2018 Replication was filed.
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28 November, 2019 Issues were framed.
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28 September, 2020 Evidence by way of affidavit was
filed.
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13 March, 2023 The present application was filed.
26. Now, a reference may be made to the relevant provisions of Order XI
Rule 1 (1), (4) and (5) of the CPC as applicable to commercial suits:
“1. Disclosure and discovery of documents
(1) Plaintiff shall file a list of all documents and photocopies of
all documents, in its power, possession, control or custody,
pertaining to the suit, along with the plaint, including:-
(a) documents referred and relied on by the plaintiff in the
plaint;
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(b) documents relating to any matter in question in the
proceedings, in the power, possession, control or custody of
the plaintiff, as on the date of filing the plaint, irrespective of
whether the same is in support of or adverse to the plaintiff’s
case;
(c) nothing in this Rule shall apply to documents produced
by plaintiffs and relevant only -
(i) for the cross-examination of the defendant’s witnesses, or
(ii) in answer to any case set-up by the defendant subsequent
to the filing of the plaint , or
(iii) handed over to a witness merely to refresh his memory.
(4) In case of urgent filings, the plaintiff may seek leave to rely on
additional documents, as part of the above declaration on oath
and subject to grant of such leave by Court, the plaintiff shall file
such additional documents in Court, within thirty days of filing
the suit, along with a declaration on oath that the plaintiff has
produced all documents in its power, possession, control or
custody, pertaining to the facts and circumstances of the
proceedings initiated by the plaintiff and that the plaintiff does
not have any other documents, in its power, possession, control or
custody.
(5) The plaintiff shall not be allowed to rely on documents, which
were in the plaintiff’s power, possession, control or custody and
not disclosed along with plaint or within the extended period set
out above, save and except by leave of Court. Such leave shall be
granted only upon the plaintiff establishing reasonable cause for
non-disclosure along with the plaint.”
27. A perusal of the aforesaid provisions would show that in all
commercial suits, the plaintiff is obliged to file a list of documents and
photocopies of documents in its power, possession, control or custody
pertaining to the suit along with the plaint. These documents would include
documents referred and relied in the plaint as well as documents relating to
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any matter in question in the proceedings, even if the same is adverse to the
plaintiff’s case.
28. Sub-Rule (1) (c) provides certain exceptions to the aforesaid Rule. In
terms of Sub-Rule (1) (c) (ii) of Order XI Rule 1, an exception is provided in
respect of the documents, which are in answer to any case set up by the
defendant subsequent to the filing of the plaint.
29. Sub-Rule (5) mandates that the plaintiff shall not be allowed to rely
on documents which were in the plaintiff’s power, possession, control or
custody and not disclosed in the plaint and nor filed within the extended
period as provided in sub-Rule (4) except with the leave of the Court and
upon showing reasonable cause for the same.
30. In Nitin Gupta (supra), relied upon by the defendant, a Co-ordinate
Bench of this Court had observed as under:
“ 38. Unless, the Commercial Divisions, while dealing with the
commercial suits, so start enforcing Rules legislated for
commercial suits, and refuse to entertain applications for late
filing of documents, especially with respect to documents of
suspicious character and continue to show leniency in the name
of ‘interest of justice’ and ‘a litigant ought not to suffer for
default of advocate’, the commercial suits will start suffering
from the same malady with which the ordinary suits have come
to suffer and owing whereto the need for the Commercial Courts
Act, 2015 was felt. Commercial Division is thus not required to
entertain or allow applications for late filing of documents,
without any good cause being established for non-disclosure
thereof along with pleadings. The plaintiff herein has utterly
failed in this regard. The application nowhere explains as to why
the plaintiff, if had obtained the said letter from the defendant,
did not remember the same and make disclosure of the same at
the time of filing the police complaint and/or at the time of filing
of this suit, even if the letter had been misplaced or was not
immediately available. The form prescribed for filing affidavit of
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documents requires a litigant in a commercial suit to, even if not
immediately possessed of a relevant document, disclose the same.
A litigant who fails to do so and also does not satisfy the Court
while seeking to belatedly file the document, why no disclosure
of such document was made, cannot be permitted to so file
documents. ”
31. In Rishi Raj (supra), a Co-ordinate Bench of this Court was dealing
with an application for filing additional documents by the plaintiff after the
issues had been framed. The plaintiff sought to place on record certain
agreements which could not be filed due to inadvertence. Relying upon the
judgment of the Supreme Court in Sudhir Kumar @ S. Baliyan v. Kumar
G.B. , 2021 SCC OnLine SC 734, the Co-ordinate Bench dismissed the
application on the ground that no reasonable cause was given by the plaintiff
for not filing the additional documents with the plaint. Inadvertent error
could not be a reasonable cause for taking on record additional documents
three years after the suit was filed and when issues in the suit had already
been framed.
32. In Bela Creation (supra), another Co-ordinate Bench of this Court
relying upon the judgment of the Supreme Court in Sudhir Kumar (supra)
upheld the order of the Trial Court dismissing the application for additional
documents filed on behalf of the defendant. The Court rejected the ground of
negligence of the previously engaged counsel, for not filing the documents
with the written statement. It was further observed that “reasonable cause”
refers to a cause which was outside the control of the party seeking to file
additional documents.
33. On behalf of the plaintiff, reliance is being placed on the judgment of
a Division Bench of this Court in Jai Pal Shishodia (supra) to submit that
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the purpose of trial of a case in India is to discover the truth.
34. The aforesaid judgment is of the year 2012, much before the
amendments made in the Civil Procedure Code with regard to commercial
disputes. Therefore, the aforesaid observations would have limited
application in the context of the present case.
35. Reliance is also placed on the judgment of a Co-ordinate Bench of
this Court in Mohd. Islamuddin (supra). In the said case, the plaintiff had
given an explanation that the plaint was filed during the currency of Covid-
19 pandemic, during which period it was difficult to contact the counsel. No
such cause, much less any other cause has been given by the plaintiff in the
present case.
36. Similarly, reliance placed by the plaintiff on the judgment of a Co-
Ordinate Bench of this Court in Atcom Technology (supra), is also
misplaced. Once again in the aforesaid case, the defendants had stated in the
application for taking on record additional documents that the written
statement was filed on an urgent basis during Covid-19 pandemic and
therefore, certain documents were missed out and could not be filed with the
written statement. No such reasons have been given in the present
application.
37. At this stage, a reference may be made to the relevant passages form
the application, which are set out below:
“ 7. That therefore, in answer to the case set up by the Defendant
in its Written Statement subsequent to the filing of the Plaint, the
Plaintiff is seeking the leave of this Hon’ble Court to file the
following documents marked as Document-D1 (Colly): -
a. Inlay Card of the Cinematograph Film “Sambandh”
b. Inlay Card of the Cinematograph Film “Gunga Jumna”
c. Inlay Card of the Cinematograph Film “Mr Romeo”
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d. Inlay Card of the Cinematograph Film “Malavarcha Phool”
e. Extract from the website of the Central Board of Film
Certification for the Cinematograph Film “Gunga Jumna”
8. That the necessity for filing the aforesaid documents has only
arisen in view of the case set out by the Defendant in its Written
Statement. The Plaintiff is filing the aforesaid documents in
order to counter the case set up by the Defendant and hence the
said documents could not have been filed/disclosed at the time of
the filing of the present suit. Therefore, the Plaintiff has set out a
reasonable cause for the non-disclosure of the aforesaid
documents at the time of the filing of the Plaint.
9. That the additional documents sought to be brought on record
by the Plaintiff by way of the present application are relevant and
necessary for the adjudication of the present dispute, as they
establish the presumption of ownership of the copyright in favour
of the Plaintiff.
10. That present suit is at the stage of the recording of evidence
and the Plaintiff has not yet begun to lead its evidence in the
present suit. Therefore, no prejudice would be caused to the
Defendant if the present application is allowed as the Defendant
would have ample opportunity to counter the same as a part of its
evidence affidavit. However, grave loss will be suffered by the
Plaintiff if the same is not allowed. ”
38. The plaintiff has invoked sub-Rule (1) (c) (ii) of Order XI Rule 1 read
with sub-Rule (5) of Order XI Rule 1 of the CPC to file additional
documents. As is evident from the passages set out above, it has specifically
been pleaded by the plaintiff that the aforesaid documents are being filed to
counter the case set up by the defendant and hence, could not be filed at the
time of filing of the suit. However, no explanation has been given by the
plaintiff as to why the aforesaid documents were not filed along with the
replication. Further, the plaintiff has failed to provide any reasonable cause
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for filing the aforesaid documents at this stage, 5 years after the replication
was filed.
39. In a commercial suit, the plaintiff cannot be permitted to file
additional documents at any stage of the suit on the ground that the same are
in response to the case set up by the defendant in the written statement.
Permitting a party to file additional documents at any stage would make a
complete mockery of Order XI of the CPC as applicable to commercial
suits. The whole object of the aforesaid provisions of the CPC pertaining to
commercial suits would be defeated if a party is permitted to file additional
documents at any stage of the suit.
40. It is also relevant to note that the documents sought to be filed by the
plaintiff are towards presumption of ownership of copyright in the works
that are the subject matter of the present suit. Admittedly, the said
documents were in power and possession of the plaintiff when the suit was
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filed. The issues framed by the Court on 28 November, 2019 also show that
the onus to prove, whether the defendant is infringing the copyright of the
plaintiff’s songs, is on the plaintiff. Therefore, even otherwise, the aforesaid
documents ought to have been filed by the plaintiff along with the plaint.
41. In view of the observations made above, the present application is
dismissed.
CS(COMM) 57/2017
42. In view of the aforesaid observations, an additional issue is framed in
the present suit in the following terms:
vi) Whether the plaintiff is entitled to a decree of rendition of accounts?
(OPP)
43. Evidence by way of affidavit has already been filed on behalf of the
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plaintiff.
44. Counsel for the plaintiff submits that no additional affidavit of
evidence would be required to be filed on account of framing the aforesaid
additional issue.
45. I am informed by the counsels for the parties that the matter is listed
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before the Local Commissioner for recording of the evidence on 4 May,
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2023 and 10 May, 2023.
46. In view thereof, the period of three months for recording of evidence
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would commence from 4 May, 2023.
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47. List before the Joint Registrar on 28 August, 2023 for monitoring of
the recording of evidence.
AMIT BANSAL, J.
APRIL 28, 2023
at/ sr
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