Yashoda Thakore vs. Kuchipudi Dance Centre And Ors

$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M)-IPD 10/2023 & CM APPL. 27785/2023
YASHODA THAKORE ..... Petitioner
Through: Mr. Prasanna S. and Ms. Swati
Arya, Advs.

versus

KUCHIPUDI DANCE CENTRE AND ORS ..... Respondents
Through: None

CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (O R A L)
% 12.07.2023


1. Swapnasundari, a dancer of renown and repute, instituted CS
(Comm) 671/2021, before the learned District Judge (Commercial Court)
(“the learned Commercial Court”, hereinafter) against Yashoda Thakore,
one of her students, who had performed a dance item in St. Petersburg,
Russia, during the months of January 2012 and 2013. It was
Swapnasundari’s contention that the said dance item was her creation,
over which she held copyright and that, therefore, in performing the dance
item, for commercial purpose, without her leave and license, Ms. Thakore
had infringed the copyright held by her.

The Kuchipudi Dance Centre, founded and run by Swapnasundari
2.
from her residence in New Moti Bagh, New Delhi-110023, and
Swapnasundari herself, were Plaintiffs 1 and 2 in the suit, with Yashoda
Thakore and YouTube LLC being impleaded as Defendants 1 and 2. The
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address provided for the Kuchipudi Dance Centre and for Swapnasundari
was the same, i.e. Bungalow No. 33, New Moti Bagh, New Delhl-110023.
Yashoda Thakore, admittedly, resides in Hyderabad.

3. Yashoda Thakore and Swapnasundari shall be referred to,
hereinafter, by their respective status before this Court, as the petitioner
and Respondent 2 respectively.

4. The petitioner moved an application before the learned Trial Court

under Order VII Rule 10 of the Code of Civil Procedure, 1908 (CPC),
submitting that the suit was bad for want of territorial jurisdiction and,
therefore, praying for return of the suit to the respondents for presentation
before a court having jurisdiction to deal with the matter.

5. The said application stands rejected by the learned District Judge
(Commercial Court) (“the learned Commercial Court”) vide order dated
28 April 2023, which has been challenged by the petitioner by means of
the present petition, instituted under Article 227 of the Constitution of the
India.

6. Para 30 in the suit, whereby the institution of the suit before the

learned Commercial Court in Delhi was sought to be justified, read thus:
“30. The Hon’ble Court has the territorial jurisdiction to try and
entertain the present suit as the Plaintiff resides in and/or carries on her
business from New Delhi. Further, the cause of action has arisen in
New Delhi as infringing videos are accessible from New Delhi. By
1
virtue, thereof, Section 62(2)
of the Copyright Act, 1957, this Hon’ble

1

62. Jurisdiction of court over matters arising under this Chapter . –
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Court has the territorial jurisdiction to try and entertain the present
suit.”

7. The petitioner’s contention, per contra – which has been espoused
by Mr. Prasanna, learned Counsel, before me, as well – was that Section
2
62 of the Copyright Act could not apply in view of Section 6 of the
Commercial Courts Act, 2015 (whereunder the suit was instituted) read
3
with Section 20
of the Code of Civil Procedure, 1908 (“the CPC”).

8. A reading of the impugned order dated 28 April 2023, of the

learned Commercial Court, reveals that the learned Commercial Court has
essentially proceeded on the basis of the principles enunciated by the
Division Bench of this Court in Ultra Home Construction Pvt. Ltd. v.
4
Purushottam Kumar Choubey
.

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9. Mr. Prasanna, learned Counsel for the petitioner does not dispute
the applicability, to the present case, of the decision in Ultra Home
4
Construction . His contention is, however, that the decision in Ultra
4
Home Construction is per incuriam, as it is contrary to the explanation
to Section 6 of the Commercial Courts Act, 2015, which it does not
notice, and which, he submits, has necessarily to be accorded strict
interpretation, as per a catena of authorities on the point. He has also
placed reliance on the judgment of the Supreme Court in Solidaire India
5
Ltd. v. Fairgrowth Financial Services Ltd.


Having heard Mr. Prasanna, I regret my inability to agree with his
10.
contention.

11. The Division Bench of this Court has, in Ultra Home
4
Construction , clearly held, following the judgment of the Supreme Court
6
in Indian Performing Rights Society Ltd. v. Sanjay Dalia , that Section
62 of the Copyright Act provides an additional forum for institution of a
suit alleging infringement of copyright, over and above the forum which,
by operation of Section 20 of the CPC, would have jurisdiction in the
4
matter. The relevant passages from Ultra Home Construction
may be
reproduced thus:
“13. By virtue of the Supreme Court decision in Sanjay
Dalia
6
( supra ) this deeming provision contained in the explanation in
section 20 of the Code has been read into section 134(2) of the Trade
Marks Act, 1999 and section 62(2) of the Copyright Act, 1957 for the
purposes of isolating the place where the plaintiff can be said to carry
on business. It will be noted that though the expression “carries on
business” is used in all the three provisions (i.e., section 20 of the Code,

5
2001 3 SCC 71
6
(2015) 10 SCC 161
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section 134(2) of the Trade marks Act, 1999 and section 62(2) of the
Copyright Act, 1957), the deeming provision contained in the
Explanation in section 20 of the Code has not been expressly
incorporated in the other two provisions. But, the Supreme Court has,
in the said decision, given the expression “carries on business” used in
relation to a corporation in the context of a defendant in section 20 of
the Code the same meaning when it is used in relation to a plaintiff
under the said sections 134(2) and 62(2). It would be instructive to note
the following observations of the Supreme Court in the said decision:

“14. Considering the very language of Section 62 of the
Copyright Act and Section 134 of the Trade Marks Act, an
additional forum has been provided by including a District
Court within whose limits the plaintiff actually and voluntarily
resides or carries on business or personally works for gain. The
object of the provisions was to enable the plaintiff to institute a
suit at a place where he or they resided or carried on business,
not to enable them to drag the defendant further away from such
a place also as is being done in the instant cases. In our opinion,
the expression “notwithstanding anything contained in the
Code of Civil Procedure” does not oust the applicability of the
provisions of Section 20 of the Code of Civil Procedure and it is
clear that additional remedy has been provided to the plaintiff
so as to file a suit where he is residing or carrying on business,
etc. as the case may be . Section 20 of the Code of Civil
Procedure enables a plaintiff to file a suit where the defendant
resides or where cause of action arose. Section 20( a ) and
Section 20( b ) usually provides the venue where the defendant
or any of them resides, carries on business or personally works
for gain. Section 20( c ) of the Code of Civil Procedure enables a
plaintiff to institute a suit where the cause of action wholly or in
part, arises. The Explanation to Section 20 CPC has been added
to the effect that corporation shall be deemed to carry on
business at its sole or principal office in India or in respect of
any cause of action arising at any place where it has subordinate
office at such place. Thus, “corporation” can be sued at a place
having its sole or principal office and where cause of action
wholly or in part, arises at a place where it has also a
subordinate office at such place.

15. The learned author Mulla in Code of Civil Procedure,
th
18 Edn., has observed that under clauses (a) to (c) of Section
20, the plaintiff has a choice of forum to institute a suit. The
intendment of the Explanation to Section 20 of the Code of
Civil Procedure is that once the corporation has a subordinate
office in the place where the cause of action arises wholly or in
part, it cannot be heard to say that it cannot be sued there
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because it did not carry on business at that place. The linking of
the place with the cause of action in the Explanation where
subordinate office of the corporation is situated is reflective of
the intention of the legislature and such a place has to be the
place of the filing of the suit and not the principal place of
business. Ordinarily the suit has to be filed at the place where
there is principal place of business of the corporation.”

*

“18. On a due and anxious consideration of the provisions
contained in Section 20 CPC, Section 62 of the Copyright Act
and Section 134 of the Trade Marks Act, and the object with
which the latter provisions have been enacted, it is clear that if a
cause of action has arisen wholly or in part, where the plaintiff
is residing or having its principal office/carries on business or
personally works for gain, the suit can be filed at such
place(s). The plaintiff(s) can also institute a suit at a place
where he is residing, carrying on business or personally works
for gain dehors the fact that the cause of action has not arisen
at a place where he/they are residing or any one of them is
residing, carries on business or personally works for gain.
However, this right to institute suit at such a place has to be
read subject to certain restrictions, such as in case the plaintiff is
residing or carrying on business at a particular place/having its
head office and at such place cause of action has also arisen
wholly or in part, the plaintiff cannot ignore such a place under
the guise that he is carrying on business at other far-flung places
also . The very intendment of the insertion of provision in the
Copyright Act and the Trade Marks Act is the convenience of
the plaintiff . The rule of convenience of the parties has been
given a statutory expression in Section 20 CPC as well. The
interpretation of provisions has to be such which prevents the
mischief of causing inconvenience to the parties.

19. The intendment of the aforesaid provisions inserted in
the Copyright Act and the Trade Marks Act is to provide a
forum to the plaintiff where he is residing, carrying on business
or personally works for gain. The object is to ensure that the
plaintiff is not deterred from instituting infringement
proceedings “because the court in which proceedings are to be
instituted is at a considerable distance from the place of their
ordinary residence”. The impediment created to the plaintiff by
Section 20 CPC of going to a place where it was not having
ordinary residence or principal place of business was sought to
be removed by virtue of the aforesaid provisions of the
Copyright Act and the Trade Marks Act. Where the corporation
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is having ordinary residence/principal place of business and
cause of action has also arisen at that place, it has to institute a
suit at the said place and not at other places. The provisions of
Section 62 of the Copyright Act and Section 134 of the Trade
Marks Act never intended to operate in the field where the
plaintiff is having its principal place of business at a particular
place and the cause of action has also arisen at that place so as
to enable it to file a suit at a distant place where its subordinate
office is situated though at such place no cause of action has
arisen . Such interpretation would cause great harm and would
be juxtaposed to the very legislative intendment of the
provisions so enacted.

20. In our opinion, in a case where the cause of action has
arisen at a place where the plaintiff is residing or where there
are more than one such persons, any of them actually or
voluntarily resides or carries on business or personally works
for gain would oust the jurisdiction of other place where the
cause of action has not arisen though at such a place, by virtue
of having subordinate office, the plaintiff instituting a suit or
other proceedings might be carrying on business or personally
works for gain.

21. At the same time, the provisions of Section 62 of the
Copyright Act and Section 134 of the Trade Marks Act have
removed the embargo of suing at place of accrual of cause of
action wholly or in part, with regard to a place where the
plaintiff or any of them ordinarily resides, carries on business
or personally works for gain . We agree to the aforesaid extent
that the impediment imposed under Section 20 CPC to a
plaintiff to institute a suit in a court where the defendant resides
or carries on business or where the cause of action wholly or in
part arises, has been removed
. But the right is subject to the
rider in case the plaintiff resides or has its principal place of
business/carries on business or personally works for gain at a
place where cause of action has also arisen, suit should be filed
at that place not at other places where the plaintiff is having
branch offices, etc .

22.
There is no doubt about it that the words used in Section
62 of the Copyright Act and Section 134 of the Trade Marks
Act, “notwithstanding anything contained in CPC or any other
law for the time being in force”, emphasise that the requirement
of Section 20 CPC would not have to be complied with by the
plaintiff if he resides or carries on business in the local limits of
the court where he has filed the suit but, in our view, at the
same time, as the provision providing for an additional forum,
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cannot be interpreted in the manner that it has authorised the
plaintiff to institute a suit at a different place other than the
place where he is ordinarily residing or having principal office
and incidentally where the cause of action wholly or in part has
also arisen. The impugned judgments, in our considered view,
do not take away the additional forum and fundamental basis of
conferring the right and advantage to the authors of the
Copyright Act and the Trade Marks Act provided under the
aforesaid provisions.”

*

52. In our opinion, the provisions of Section 62 of the Copyright
Act and Section 134 of the Trade Marks Act have to be interpreted in
the purposive manner. No doubt about it that a suit can be filed by the
plaintiff at a place where he is residing or carrying on business or
personally works for gain. He need not travel to file a suit to a place
where the defendant is residing or cause of action wholly or in part
arises. However, if the plaintiff is residing or carrying on business, etc.
at a place where the cause of action, wholly or in part, has also arisen,
he has to file a suit at that place, as discussed above ”
.

12. It is perfectly clear, therefore, both from Indian Performing Rights
6 4
Society as well as from Ultra Home Construction
, that the non obstante
clause, with which Section 62 of the Copyright Act commences, enables a
plaintiff to institute a suit where she, or he, resides or works for gain, and
is in addition to the venue for institution of the suit as envisaged by
Section 20 of the CPC. The only caveat, to this right, is that, if the
plaintiff has his principle place of work at one place, where the cause of
action has also arisen, the suit would have to be instituted there, and not at
some other distant place where the plaintiff may also have a subordinate
office. This caveat has no application in the present case, on facts.

6
13. The decision in Indian Performing Rights Society , as followed in
4
Ultra Home Construction , therefore, defeats, in its entirety, the argument
of Mr Prasanna. Mr Prasanna’s contention that these decisions have been
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rendered without considering Section 6 of the Commercial Courts Act is
plainly unacceptable, as the Explanation to Section 6 incorporates, by
reference, Sections 16 to 20 of the CPC, which have been considered in
both these decisions.

14. Besides, the interpretation placed by Mr. Prasanna on the

explanation to Section 6 of the Commercial Courts Act ignores the fact
that the Explanation is precisely that, i.e. an explanation to the main
provision. Section 6 is an enabling provision, and not one which ousts
jurisdiction vested, by any other provision, in any Court. It contains no
obstante clause, unlike Section 62 of the Section 6, which does. In fact,
the submission of Mr. Prasanna that Section 6 of the Commercial Courts
Act would prevail over Section 62 of the Copyright Act is, besides being
6
contrary to the law enunciated in Indian Performing Rights Society and
4
Ultra Home Construction
, in the teeth of Section 62(2) of the Copyright
Act, which accords pre-eminence, via the non obstante clause , to Section
62 over the CPC.

15. By no stretch of imagination can Section 6 of the Commercial

Courts Act be treated, therefore, as a provision which excludes the
applicability of Section 62 of the Copyright Act. Section 6 of the
Commercial Courts Act, read with Section 16 to 20 of the CPC, operate in
their own distinct sphere. That sphere, has held by the Supreme Court in
6
Indian Performing Rights Society and by the Division Bench of this
4
Court in Ultra Home Construction , is distinct and different from the
sphere in which 62 of the Copyright Act operates. Both the decisions
clarify that a plaintiff seeking to institute a suit for infringement of
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copyright can institute a suit within the Court having jurisdiction either
under Section 62 of the Copyright Act or under Section 16 to 20 of the
CPC.

4
16. The plea, of Mr Prasanna, that Ultra Home Construction
is per
incuriam is, therefore, completely bereft of merit.

5
17. Adverting, now, the judgment of the Supreme Court in Solidaire

, it
is seen that the dispute in that case is completely distinct, in contour and
complexion, to the dispute which arises in the present case. In that case,
the Court was concerned with a situation in which there were two statutes
conferring jurisdiction over the same cause of action or two different
Courts, in which each was found to be a special statute. Significantly,
there is a significant finding, in the said decision, that the two statutes,
namely the Special Court (Trial of Offences Relating to Transactions
and Securities) Act, 1992 and the Sick Industrial Companies (Special
Provisions) Act, 1985 were in conflict with each other on the aspect of
territorial jurisdiction. It was in these circumstances that the Supreme
Court held that the later statute would prevail.

18. In view of the ruling of the Division Bench of this Court in Ultra

4
Home Construction , there is, clearly, no conflict between Section 62 of
the Copyright Act and Sections 16 to 20 of the CPC. They are
supplementary to each other, and neither provision ousts the other. The
5
decision in Solidaire
cannot, therefore, assist Mr Prasanna.

19. Mr. Prasanna has candidly acknowledged that, but for his
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4
contention that the decision in Ultra Home Construction is violative of
Section 6 of the Commercial Courts Act, the case is otherwise covered by
4
the decision in Ultra Home Construction
.

20. In view of the aforesaid, the learned Commercial Court cannot be
said to have erred in fact or in law or on the aspect of jurisdiction in
holding as it did.

21. The impugned order, therefore, does not make out a case for

interference within the limited jurisdiction vested in this Court by Article
227 of the Constitution of India.

22. The petition is accordingly dismissed in limine .

23. As prayed by Mr. Prasanna, the petitioner is granted a further
period of 2 weeks to deposit the costs as directed by the learned
Commercial Court.


C.HARI SHANKAR, J
JULY 12, 2023
ar

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