Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J. rejected bail and dismissed the petition.

The facts of the case are that, the petitioner, a driver by profession resident of Haryana was apprehended for alleged possession of 1 Kilogram 008 Grams of opium and was arrested under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Dharampur, District Solan, H.P. and was in judicial custody. The petitioner earlier preferred for regular bail before the Special Judge-III, Solan, which was rejected. Hence, the instant bail petition was filed.

The petitioner was represented by counsel Vivek Sharma and the respondent was represented by counsel R.P. Singh, Raju Ram Rahi and Gaurav Sharma.

It was submitted that petitioner is driver by profession and is in habit of consumption of opium. It was further stated that he has been booked for possession of poppy straw in 2017 but was acquitted of the charges later and has also been found in possession of 15 bottles of country liquor in the same year and was fined Rs 1500. It was further stated that the explanation with respect to source of contraband was also found false.

The Court based on the facts and submissions, observed that the reverse onus is on the petitioner under the NDPS Act, and the balance of convenience is not in his favour.

In the light of given facts and arguments the bail is rejected and petition dismissed. [Ashish v. State of Himachal Pradesh, 2020 SCC OnLine HP 692 , decided on 15-06-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of I.P. Mukerji and Md. Nizamuddin, JJ., allowed an appeal filed against the order of the Single Judge whereby he had rejected the appellant-plaintiff’s application for grant of interim injunction restraining the respondent-defendant from using the subject trademark.

The appellant and the respondent were in the business of manufacturing TMT bars. The appellant was the registered proprietor of the word mark “Shyam” and label marks featuring this word prominently. The appellant filed a suit for infringement of the said trademark and passing off against the respondent. The interlocutory application filed by the appellant for grant of interim injunction till the disposal of the suit was rejected by the Single Judge as noted above. Aggrieved thereby, the appellant approached the High Court.

Two main contentions advanced on behalf of the respondent were: Firstly, that the registration of the mark “Shyam”, which is the name of a God, was invalid. And secondly, it was contended that the appellant filed the suit after a considerable delay and, therefore, the defence of acquiescence was available to the respondent.

Regarding the first contention, the High Court, relying on Lal Babu Priyadarshi v. Amritpal Singh, (2015) 16 SCC 795, held that it could not be said as an infallible principle of law that registration of the word “Shyam” was invalid and it should be cancelled. The respondent has to prove, by leading cogent evidence, before the Board, that indeed the name ‘Shyam’ refers to God only, is not distinctive of the appellant, is generic and common. Hence, its registration was invalid. Since, at the instant stage, the respondent was not able to establish this even prima facie, the Court rejected the first contention.

Coming to the second contention, the Court noted that the appellant was aware of the use of their trademark by the respondent since at least December 2015. Yet, the appellant took their own time in filing the suit and applying for an injunction, i.e., in 2019. However, the Court was of the view that the appellant could not be accused of acquiescing to the use of their trademark by the respondent, though it could be said that they took no action to restrain the respondent from using it. Reliance was placed on Power Control Appliances v. Sumeet Machines (P) Ltd., (1994) 2 SCC 448, wherein the Supreme Court has said that acquiescence would only arise out of the positive acts and not merely by silence or inaction. It has gone to the extent of saying that acquiescence was “one facet of delay”.

In such view of the matter of the Court, considering the prima facie case and balance of convenience, ordered that the respondent would be injuncted from using the trademark in question till the disposal of the infringement suit filed by the appellant, which effect from 1-5-2020, by which date, the respondent was permitted to clear the existing stock. [Shyam Steel Industries Ltd., v. Shyam Sel & Power Ltd., 2019 SCC OnLine Cal 5177, decided on 24-12-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A writ petition was entertained by Manoj K. Tiwari, J. where the petitioner was aggrieved by the order passed by the Appellate Court, where it set aside the status quo passed by the learned trial court. 

The Court observed the appellate jurisdiction over the original jurisdiction of the Courts and noted that, grant of temporary injunction was discretionary and appellate court should not interfere with such discretion of court of first instance except where discretion had been shown to exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions, as held by the Supreme Court in Esha Ekta Appartments CHS Ltd. v. Municipal Corporation of Mumbai, (2012)4 SCC 689. It was also observed that the appellate courts when called upon to consider the correctness of an order of injunction passed by the trial courts which had reversed the order of lower courts, the Supreme Court had held that, “In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. 

‘An appeal against exercise of discretion was said to be an appeal on principle. Appellate court doesn’t reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion had been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court took a different view may not justify interference with the trial court’s exercise of discretion.’

Hence, the Court stated that scope of interference by the appellate court with the court that passed the order of temporary injunction was limited and in any case, two views were available then the view taken by the court of the first instance had to be maintained. 

But Court while examining the instant petition noticed that the appellate court had not assigned any reason for disturbing the discretionary order passed by the trial court. It was also observed that in Maharwal Khejwaji Trust v. Baldev Dass, (2004) 8 SCC 488, the Supreme Court had held that “unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit a change of the said status quo, which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings.” 

It was observed by the Court that trial court had considered three major points while passing the order was balance of convenience, prima facie case and irreparable loss to the parties, it indicated that the trial court was justified in directing the parties to maintain status quo in order to maintain and preserve property. 

Thus, the petition was allowed and the order of the appellate court was set aside. [Ashok Kumar v. Pramil Kumar, 2019 SCC OnLine Utt 855, decided on 02-09-2019] 

Case BriefsHigh Courts

Rajasthan High Court: Sabina, J. dismissed the appeal on the ground that party will suffer an irreparable loss if the application was allowed. 

An appeal was made challenging the order which was made on an application under Order 39 Rule 1 and  2 read with Section 151 of Code of Civil Procedure, 1908. 

 Rohit Khandelwal, counsel for the appellant submits that that the property-in-question was owned by Shobhagmal Jain which the appellant agreed to purchase. Earnest money was paid to the original owner. Thereafter, the original owner executed Power of Attorney in favor of his son. Son of the owner executed a sale deed in favor of the respondent. Appellant filed a suit for cancellation of the sale deed and for specific performance of an agreement to sell executed in his favor. It was further submitted that the original owner was ready to pay the sale consideration to the subsequent purchaser as his son wrongly sold the property-in-question. Thus an application for a temporary injunction was made.

High Court was required to see whether the plaintiff has a prima-facie case and balance of convenience in his favor and in case, the Temporary Injunction was not granted in favor of the plaintiff, he would suffer an irreparable loss. The court thus, after discussing the relevant question held that respondent can be said to be a bonafide purchaser for consideration. Hence, in case Temporary Injunction is granted in favor of the appellant, the respondent would suffer an irreparable loss as he would not be able to enjoy the property purchased by him in the manner he liked. Moreover, the principle of Lis Pendens would apply. Thus, no interference was made by the court. [Rakesh Makwana v. Vishant Infra Projects Llp, 2019 SCC OnLine Raj 903, decided on 09-04-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J. allowed a writ petition under Articles 226 and 227 of the Constitution for quashing the order passed by Civil Judge (Senior Division) while granting an ex-parte injunction in the favour of respondents and the order passed by IV Additional Sessions Judge while rejecting the appeal filed by the petitioners.

Respondents herein had filed a suit seeking a permanent/prohibitory injunction against the petitioners herein (defendants in suit) praying that they be restrained by decree of perpetual injunction from interfering in the daily affairs of respondents’ society. The trial court vide an ex-parte order granted a temporary injunction in the favour of the respondents and restrained the petitioners from entering, interfering or destroying the property in dispute. Aggrieved thereby, the petitioners herein preferred an appeal which was dismissed by the appellate court. Hence, the instant petition.

Rakesh Thapliyal, counsel for the petitioners submitted that the lower court had not recorded the reasons and directly came to the conclusion that, “in case ex-parte injunction is not granted, then the purpose of the plaintiff would frustrate” and thus passed the ex-parte injunction order. In support of his contention, he placed reliance upon the judgment in the case of Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, where it was held, “….the court should grant interim injunction or stay order only after hearing the defendants or the respondents..” On the other hand, V.K. Kohli, Senior Advocate appearing on behalf of the respondents contended that the property belonged to the institute and same should be protected.

The Court after perusing the impugned order observed, “the courts below have failed to exercise their jurisdiction within the parameters of law and the orders impugned in the present writ petition suffer from the aforesaid error.” It further observed that “The trial court granted ex-parte interim injunction without any discussion, finding and the reason, and the appellate court has also done the same.” For this, the Court also placed reliance on the case of the Supreme Court in State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670, where it was held, “Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning.”

Thus, the Court set aside the impugned order holding the same to be unsustainable in the eyes of law and ordered the trial court to decide the interim injunction application within two months, after giving an opportunity of hearing to the parties.[Balwant Singh Chauhan v. Mahavidyalaya Sabha Jwalapur Haridwar, 2019 SCC OnLine Utt 360, decided on 14-05-2019]

Case BriefsHigh Courts

Bombay High Court: In a very important case relating to rights of an owner of the copyright in sound recordings, S.J. Kathawalla, J. issued a permanent injunction against Wynk Music restraining it from infringing the copyright if Tips Industries held by it in over 25,000 songs. The Court was faced with determining the issue of easy/ready access to music /sound recording vis-a-vis the restrictions which can be put on the same by the bonafide owners of copyright in the said music/sound recording.

Facts

Tips Industries — owner of copyright in over 25,000 sound recordings (“Repertoire”) — licensed its Repertoire to Wynk Music, owner and operator of Wynk — an over the top service available on the internet through which, the subscribers, upon payment of a subscription fee, can listen to numerous sound recordings and audio-visual recordings including Tips’ Repertoire. The Repertoire was licensed to Wynk by the copyright society — Phonographic Performance Ltd. (“PPL”). However, the said license expired on 31-8-2016.

The negotiations which ensued thereafter for extending the license failed, and Tips requested Wynk to deactivate its Repertoire from their platform — which request according to Tips, was not complied with by Wynk. Thereafter, Tips issued a cease and desist notice to Wynk on 17-11-2017. In reply, Wynk invoked Section 31-D of the Copyright Act, 1957, claiming that they are a broadcasting organisation entitled to a statutory license under the said section to communicate the work to the public by way of a broadcast of Tips’ musical work and sound recordings, Consequently, on 29-1-2018, Tips filed two suits against Wynk for infringement of copyright, disputing Wynk’s right to avail  statutory license provided for by Section 31-D and claiming permanent injunction, restraining them from — (a) communicating to the public Tips’ Repertoire; and (b) giving on commercial rental/sale, Tips’ Repertoire of songs by way of providing download services/features.

Discussion 

The High Court held a detailed discussion on several issues as framed before it. After considering various provisions of the Copyright Act and several case laws on the subject, the Court answered the issues as follows:

(a) It is evident that Wynk through its purchase feature and download feature, is enabling its customers to store physical files/electronic copies Tips’ Repertoire on their devices in abrogation of the exclusive rights granted to Tips under Section  14(1)(e)[copyright in respect of sound recording] of the Act.

(a-i) The defence provided in Section 52(1)(a)(i) is not available to Wynk at all. The defence of fair use may be available in a given case, to an individual user. The activities of Wynk can never be termed as ‘private’ or ‘personal use’ or ‘research’. Wynk is clearly selling and /or commercially renting sound recordings including, iner alia, Tips’ Repertoire for their own commercial benefit.

(a-ii) The provisions of Section 52(1)(b) are fairly straightforward. It is clear from the nature of Wynk’s activities that the offline storage, either permanent or temporary, of electronic copies of the sound recordings on the customer’s devices, is the primary selling point/unique object of Wynk’s business. The electronic storage of Tips’ sound recording on the platform of Wynk can neither be termed as ‘transient’ nor ‘incidental’. The sound recordings may be stored on the customers’ devices during the tenure of their subscription or as per their discretion, as the case may be. In such circumstances, the storage of the sound recordings cannot be said to be incidental or transient to services of Wynk.

(a-iii) Section 31-D contemplates communication to public by way of broadcast of sound recordings only, and not their commercial rental and/ or sale. Since the services (download/purchase feature) provided by Wynk are in the nature of commercial rental and/or sale of sound recordings, they do not fall within the purview of Section 31-D of the Act and Wynk is prohibited from exercising a statutory license apropos thereto.

(b) Provisions of Section 31-D read with Rules 29 to 31 of the Copyright Rules, 2013 coupled with the legislative history preceding the passage of Copyright Amendment Act, 2012 clearly support the submission that Section 31-D contemplates only television and radio broadcasting and to internet broadcasting. Moreover, prior determination of royalty rates is a necessary precondition for the exercise of rights in respect of a Statutory License under Section 31-D. Therefore, even assuming that ‘internet broadcasting’ was covered within the ambit of Section 31-D. Wynk could not have exercised Statutory License under the said section in the absence of pre-fixation of the rate of royalty by the Appellate Board.

(c) Rule 29 of the Copyright Rules, 2013 and its proviso which state that prior fixation of royalty rates is a necessary precondition to the exercise of Statutory License under Section 31-D was challenged as invalid by Wynk. However, the challenge was dismissed and the rule was held valid.

(d) Wynk relied on Government of India’s Office Memorandum dated 5-9-2016 which clarified: “… in view of the above, the words any broadcasting organization desirous of communicating to the public may not be restrictively interpreted to cover only radio and television broadcasting, as the definition of Broadcast read with communication to the public appears to include all kinds of broadcast including internet broadcasting. Thus, the provisions of Section 31-D of the Copyright Act, 1957 are not restricted to radio and television broadcasting only but cover internet broadcasting also.” It was held that the said Memorandum lacks a ‘statutory flavour’ and cannot prevail over an interpretation which is drawn under the Act and the Rules. The interpretation of Section 31-D in the said Memorandum is inconsistent with the interpretation drawn by this Court and this Court is not bound by the said Memorandum.

(e) High Court has no jurisdiction to grant a Compulsory License which is within the exclusive domain of the Copyright Board. Furthermore, permitting Wynk to deposit money whilst permitting it to use Tips’ Repertoire for its commercial activities would amount to a grant of a Compulsory License, for which the High Court, being a Civil Court doesn’t have the jurisdiction.

(f) Tips’ entire Repertoire is being widely exploited by Wynk without payment of any royalty. The balance of convenience was in favour of Tips. An injunction order restraining Wynk from using the Tips’ Repertoire would preclude them from using 25,000 songs out of 2.6 million songs. An injunction order against Wynk shall not bring its business to a standstill or cause irreparable injury.

Held

Insofar as the download and purchase feature of Wynk’s activities are concerned, the same amount to infringement of Tips’ rights provided under Section 14(1)(e)(ii) of the Copyright Act; insofar as the on-demand streaming services are concerned, the same amount to infringement of Tips’ rights provided in Section 14(1)(e)(iii) of the Copyright Act; and the provisions of Section 31-D of the Act are not applicable to internet broadcasting.

The Court considered its necessary to grant reliefs in favour of Tips industries in terms of the permanent injunction claimed by it as mentioned above. The present notice of motion were therefore allowed.[Tips Industries Ltd. v. Wynk Music Ltd., Notice of Motion (L) No. 197 of 2018 in Commericial Suit IP (L) No. 114 of 2018, decided on 23-04-2019]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Ashis Kumar Chakraborty, J. allowed an application for arrest of marine vessel filed in an admiralty suit.

The plaintiff claimed to have a maritime claim against the defendant vessel for USD 234,286.24 on account of supply of bunkers and fuel to her at different ports in Durban, Istanbul, Singapore, Balboa, the port of Klaipeda and the port of Bhushan, South Korea. The defendant vessel MV PELAGOS was berthed at the Haldia Port, within the admiralty jurisdiction of the High Court. The plaintiff relied on Section 4(1)(n) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. It was stated that the plaintiff had filed an action in personam against the owner of the vessel in Greece. It was contended that filing of such action in personam against the owner of the defendant does not affect its right to file the present action in rem against the defendant vessel.

The High Court considered the submissions and the record. It was noted that the plaintiff claimed great urgency in moving the application as the vessel was likely to leave Haldia Port within the course of the day. The Court was of the view that the plaintiff had made out a prima facie case and the balance of convenience also lies in its favour for obtaining an ad-interim order for arrest of the defendant’s vessel. Accordingly, the order was made for arrest of the vessel MV PELAGOS lying within the Indian territorial waters at Haldia Port. However, it was directed, if the owner or parties in the defendant vessel deposit Rs 1,75,20,037 as a security with the Registrar, original side of the High Court, the order of arrest shall stand vacated. The application was made returnable on 31-8-2018. [Gram Marine PTE Ltd. v. Owners and Parties interested in the Vessel MV PELAGOS,2018 SCC OnLine Cal 5834, dated 30-08-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Ashis Kumar Chakraborty, decided an admiralty suit wherein it directed the arrest of defendant vessel on finding that prima facie case was made out in favour of the petitioner.

The suit was filed under Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. The petitioner’s claim was that they had a maritime claim of over USD 4 mn against the defendant vessel, which was currently lying at the port of Budge Budge. The claim was put forth on account of losses caused as a result of deterioration of cargo; losses caused due to delay in delivery of cargo, and losses suffered due to a decrease in the price of cargo resulting from the delayed delivery. According to the petitioner, its claim constituted a maritime claim under Section 4 of Admiralty Act which was enforced on April 1, 2018.

On considering the facts of the case, the Court found that petitioner had made out a prima facie case and balance of convenience also favoured the petitioner for obtaining an ex-parte order of arrest of the defendant vessel, which was likely to leave the Kolkata Port. Accordingly, an ad interim order of a one day arrest was passed against the defendant’s vessel. However, it was clarified that if the owner or other interested party deposit the claim amount as stated by the petitioner; the order of arrest shall stand automatically vacated. The matter was directed to be further placed on 29-06-2018. The matter being brought before the Court on 29-06-2018, the ad interim arrest order was extended till 04-07-2018, as none appeared on behalf of the defendant to oppose the application. The matter was directed to be listed again on 04-07-2018. [JVL Agro Industries Ltd. v. MT Prime Sun, 2018 SCC OnLine Cal 4030, order dated 28-6-2018 and 2018 SCC OnLine Cal 4128, order dated 29-06-2018]