* IN THE HIGH COURT OF DELHI AT NEW DELHI. % Judgment pronounced on: 9 th February, 2016

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1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment pronounced on: 9 th February, I.A. No /2015 & I.A. No.17621/2013 in CS(OS) 2119/2013 MUSIC BROADCAST PVT. LTD.... Plaintiff Through Mr.Sandeep Sethi, Sr.Adv. with Ms.Meghna Mishra, Adv. with Mr.Akhil Sachar, Mr. Dheeraj P. Dev, Mr. Manan Chadha and Ms.Manmeet Kaur, Adv. versus AXIS BANK & ORS.... Defendants Through Mr. Abhishek Anand, Adv. for D-1 Mr. Amit Sibal, Sr. Adv. with Mr. Jagdish Sagar & Mr. Neeraj Kumar Gupta, Adv. for D-2. CORAM: HON'BLE MR.JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J. 1. The plaintiff has filed a suit for declaration and permanent injunction. 2. The plaintiff is, inter alia, engaged in the business of running, operating and maintaining 20 FM Radio Broadcasting stations at the following places in India i.e. Mumbai, Bangalore, Delhi, Lucknow, Hyderabad, Chennai Ahmedabad, Pune, Nagpur, Jaipur, Surat, Jalgaon, Ahmednagar, Sangli, Vishakhapatnam, Coimbatore, Akola, CS(OS) No.2119/2013 Page 1 of 57

2 Solapur, Vadodara and Nanded. The plaintiff is seeking a decree of declaration that the Cancellation Notice dated 21 st June, 2013 sent by the defendant No. 2 which was as per the plaintiff received on 24 th June, 2013 (the first working day of receipt of the notice as the office of the plaintiff company was closed on 22 nd June, 2013 being a Saturday) whereby defendant No. 2 had cancelled 20 Compulsory Licenses for Radio Broadcasting all dated 3 rd September, 2010 issued in favour of the plaintiff pursuant to the order dated 25 th August, 2010 of Copyright Board is null and void. The plaintiff also seeks a decree of permanent injunction restraining the defendants from in any manner acting upon the cancellation notice dated 21 st June, 2013 and for permanent injunction restraining the defendant No.2 from invoking and encashing the bank guarantees issued by the plaintiff in compliance with the order dated 25 th August, 2010 passed by the Copyright Board. 3. The defendant No. 1 Bank has been arrayed in the suit, as it has furnished the bank guarantees on the request of the plaintiff in favour of the defendant No. 2 i.e. Phonographic Performances Limited (hereinafter referred to as "PPL" or the "defendant No. 2"). Defendant No.2 is a copyright society registered under Section 33 of the Copyright Act, 1957 (hereinafter referred to as the Act ) and is engaged in carrying on the copyright business of its members in sound recordings who administers the sound recordings of its members and further claims to charge and collect license fees from the said users of sound recordings. CS(OS) No.2119/2013 Page 2 of 57

3 4. It is alleged in the plaint that the impugned Cancellation Notice interferes with due course of judicial proceedings pending in the High Court of Madras and High Court of Judicature at Bombay and also obstructs the administration of justice as the defendant No. 2 has no power or locus under the Copyright Act, 1957 read with the Copyright Rules, 2013 to cancel the compulsory licenses granted by the Copyright Board. 5. The suit along with interim application was listed before the Court on 18 th November, 2013 when summon and notice were issued. The interim order was also passed against the defendant No.2 staying the operation of cancellation notice dated 21 st June, 2013 while passing the detailed order. 6. The said order was challenged by the defendants in an appeal being FAO (OS) 561/2013 before the Division Bench, wherein the major issue of territorial jurisdiction of this Court was raised. The Division Bench observed that as the question of territorial jurisdiction is yet to be decided by the Single Judge, the Division Bench did not make any comments thereon and directed the parties to await the final decision on the subject by the Single Judge when the matter is taken up. 7. Both the parties have made their submissions on merit as well as on the question of territorial jurisdiction as the objection taken by the defendants. They agree that if the issue of territorial jurisdiction is decided against the plaintiff and in favour of defendant No.2, then there is no need to go into the merit of the case. CS(OS) No.2119/2013 Page 3 of 57

4 8. It is necessary to refer the brief facts as mentioned in the plaint; the same are stated as under:- (a) In or about October, 1999, the Government of India opened FM Radio Broadcasting, to private parties and issued tender documents to interested parties under the Indian Telegraph Act, The objective of the privatization of the FM Radio Broadcasting sector was to affect a rapid increase in the broadcast network within the country. (b) The defendant No. 2 came out with the alleged rates of royalty payable by the FM radio broadcasters under the mandatory tariff scheme which any copyright society had to publish, and had fixed the rate of royalty at Rs. 2,400 per needle hour or 20% of the net advertisement revenue, whichever was higher. Aggrieved by this unilateral fixation of royalty, the plaintiff along with other broadcasters filed three complaints under Section 31 (1) (b) of the Copyright Act, 1957 before the Copyright Board in the year 2002 seeking compulsory licenses to play the music owned by PPL and its members. (c) The Copyright Board by its interim order dated 19 th November, 2002 in the compulsory licensing applications moved by different private FM broadcasters (including the plaintiff) against defendant No. 2, to finally decide the final rate of royalty/compensation payable to defendant No. 2, had fixed interim rates of royalty at Rs.1,200/- per needle hour during prime time i.e. from 8 a.m. to 10 a.m. and from 6 p.m. to 8 p.m CS(OS) No.2119/2013 Page 4 of 57

5 which were to remain in operation for a period of two years i.e to A needle hour is internationally accepted as the term denoting the actual time for which music is played during an hour excluding the advertisements, promotional and the presentation time taken by the radio jockey. The Copyright Board also fixed the rate at 60% of this standard rate for the normal 12 hours i.e. from 6 a.m. to 8 a.m., 10 a.m. to 6 p.m. and 8 p.m. to 10 p.m. and 25% of the standard rate for the eight lean night hours i.e. from 10 p.m. to 6 a.m. as the royalty payable. The average royalty rate worked out to Rs. 660/- per needle hour which was to come into effect from the 1 st November, 2002 and to remain in operation till 31 st October, (d) The plaintiff along with other broadcasters, as well as defendant No. 2 filed appeals and cross-appeals (in total nine appeals) before the High Court of Bombay inter-alia assailing the order dated 19 th November, 2002 passed by the Copyright Board. The Bombay High Court by a common judgment and order dated 13 th April, 2004 in First Appeal Nos of 2003, 421 of 2003 and 1573 of 2003 reported as Phonographic Performance Ltd. v. Music Broadcast Pvt. Ltd., 2004 (29) PTC 282 (Bom) set aside the order dated 19 th November, 2002 and remitted the matters back to the Copyright Board for reconsideration and for fixation of license fees. (e) Thereafter, Special Leave Petitions were filed by the plaintiff and other broadcasters, before the Supreme Court, whereby CS(OS) No.2119/2013 Page 5 of 57

6 the Supreme Court vide its common judgment dated 16 th May 2008 reported in Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., reported in (2008) 13 SCC 30 allowed the appeal of another broadcaster i.e. Entertainment Network (India) Ltd. and simultaneously dismissed the Special Leave Petition of the defendant No. 2 thereby upholding the decision of the Bombay High Court. The Supreme Court, while concurring with the High Court of Bombay and also remanded the said matter to the Copyright Board for fresh consideration on merits. (f) Pursuant to the order dated 16 th May, 2008 passed by the Supreme Court, six fresh applications/ complaints were filed in the year 2008 before the Copyright Board under Section 31(1)(b) of the Copyright Act, 1957 by various other broadcasters apart from the three applications/complaints that were remanded by the Supreme Court. (g) Thereafter, the trial before the Copyright Board commenced in July, 2008 and the examination of witnesses began on 28 th July, 2009 and was followed up through subsequent sittings ending on 12 th July, (h) The common order dated 25 th August, 2010 was passed by the Copyright Board in the various remanded matters as well as fresh filings done before the Copyright Board. The Copyright Board, in exercise of powers conferred under Section 31 (1) of the Copyright Act, 1957, directed the Registrar of Copyrights to CS(OS) No.2119/2013 Page 6 of 57

7 grant complainants i.e. the plaintiff separate licenses for communicating the work recorded in sound recordings in the repertoire, present and future, of the defendant No. 2 to the public, by broadcast on revenue sharing basis subject to certain terms and conditions as stated herein below:- a. 2% of the net advertisement earnings of each FM radio station accruing from the radio business only for that radio station shall be set apart by each complaint for pro rata distribution of compensation to all music providers including the defendant No.2 herein in proportion to the music provided by the respective music providers and broadcast by the complainant. Complainant shall be deemed to be a music provider for the music provided by it or received by it free of cost and broadcast. For arriving at net advertisement earnings, all Government and musical taxes paid, if any, and commission paid towards the procurement of such advertisements to the extent of 15% of such advertisement earnings shall be excluded; b. Complainants shall furnish within a week of grant of licence by the Registrar of Copyrights a bank guarantee for Rs.10,000 in favour of the defendant for each radio station. However, the sum of such bank guarantee shall be revised within two weeks after the close of every quarter of the year to such sum of which complainant was liable for payment of compensation for that quarter. CS(OS) No.2119/2013 Page 7 of 57

8 Quarter of a year means a period of three months ending on the last day of March, June, September and December of the relevant year; c. If the complainant fails to revise the bank guarantee in terms of clause (b), defendant shall be at liberty to cancel the license without giving any notice and recover the remaining dues from the available bank guarantee; d. Payment of compensation by the complainant to the defendant for a month shall be made by 7 th day of the month following the month to which payment relates. Complainant shall also furnish alongwith the payment the date wise details of the periods for which the music relating to the defendant and all other music providers has been used for the month. However, payment for the period beginning with the grant of licence and ending on 30 th September, 2010 shall be used in lump sum by 7 th October, 2010; e. For any delayed payment for a month beyond 7 th of the following month, interest at the rate of 1% per month or a part of month or a part of month shall be payable; f. In case payment is not made by the complainant for a radio station for consecutive two months, defendant herein shall be entitled to cancel the licence by giving notice of one month and recover the remaining dues from the bank guarantee; CS(OS) No.2119/2013 Page 8 of 57

9 g. A complainant may for one or more radio stations, by giving notice of one month and after making payment of all sums due, cancel the licence; h. The validity of the licence granted by the Registrar of Copyright shall come to end on 30 th September, (i) Being aggrieved by the order dated 25 th August, 2010 passed by the Copyright Board, the defendant No. 2 had preferred an appeal dated 28 th October, 2010 under Section 72 of the Copyright Act, 1957 before the High Court of Judicature at Madras. The High Court of Judicature at Madras vide its order dated 22 nd December, 2010 in CMA No. 3382/2010 dismissed the application for interim relief seeking stay of the order dated 25 th August, Thereafter the defendant No.2 filed a Special Leave Petition (Civil) No /2011 before the Supreme Court inter alia assailing the order dated 22 nd December, 2010 passed by the High Court of Judicature at Madras. The Supreme Court vide order dated 5 th April, 2011 dismissed the Special Leave Petition. (j) In pursuance of the order dated 25 th August, 2010 passed in Case No.1 of 2002 titled as 'Music Broadcast Private Limited v. Phonographic Performance Limited' granted licenses to the plaintiff for communicating the work recorded in sound recordings in the repertoire, present and future of the defendant No. 2 to the public by broadcast on revenue sharing basis subject to the terms and conditions as adumbrated in the order dated 25 th August, These licenses were granted for all the 20 radio channels of the CS(OS) No.2119/2013 Page 9 of 57

10 plaintiff on 3 rd September, 2010 and are valid up to 30 th September 2020, i.e. for about 10 years. 9. The plaintiff accepted the Compulsory Licensing Order and never exercised its right of appeal against it under Section 72(2) of the Copyright Act. The said order, therefore, has attained finality qua the plaintiff. The defendant No.2 was unable to obtain interim stay of the said Compulsory Licensing Order in its pending appeal under Section 72(2) of the Copyright Act before the Madras High Court and on further appeal from the Supreme Court. 10. The defendant No. 2 filed a Writ Petition (Civil) No.8144 of 2011 titled as PPL v. Union of India and others before this Court wherein the plaintiff was arrayed as respondent No.3. The relief sought in the said writ petition was the quashing of the Compulsory Licenses dated 3 rd September 2010 granted by the Registrar, Copyright Board. This Court by order dated 18 th January, 2011 refused to grant any interim order in favour of defendant No. 2 who by order dated 4 th January, 2012 directed both the parties i.e. MBPL and PPL to comply with the directions issued by the Division Bench in L.P.A No. 1037/2011. It is submitted by the plaintiff that said order dated 4 th January, 2012 passed by the Single Judge of this Court was being complied. 11. The defendant No. 2 also filed a Contempt Petition in the month of March, 2012 being Cont. Case No. 203/2012 in Writ Petition Civil No. 8144/2011 titled as Phonographic Performance Limited v. Union of India and Others inter alia alleging non-compliance of the order CS(OS) No.2119/2013 Page 10 of 57

11 dated 4 th January 2012 passed by this Court which mandated the compliance of the order dated 25 th August, 2010 passed by the Copyright Board. The Contempt Petition was subsequently dismissed as not pressed by the defendant No.2 and order therein was passed on 19 th February, The writ petition was dismissed. The LPA filed against the judgment has also been dismissed as informed by the parties. 12. The plaintiff in response to the letters dated 13 th January, 2011 and 19 th January, 2011 addressed a letter dated 24 th January, 2011 to the defendant No. 2 wherein the plaintiff stated that it was complying and would continue to comply with the final order dated 25 th August, 2010 passed by the Copyright Board and the terms of the Compulsory Licenses granted in pursuance thereto on 3 rd September, The compulsory licenses were valid and subsisting till date. The tariffs in terms of the License Agreements were broadly based on orders passed by Courts/Copyright Board and were subject to adjustments as per the final order which would be passed by appropriate Courts/Tribunal in due course. Therefore, the defendant No.2 says that 'unilateral adjustment' is not correct. The plaintiff reiterated that an amount of Rs.3,80,00,000/- which was deposited as security deposit in terms of the License Agreement was liable to be refunded and requested the defendant No. 2 to inspect the logs at a mutually convenient time and pointed out that it had been making the logs available throughout the CS(OS) No.2119/2013 Page 11 of 57

12 decade of its relationship with the defendant No. 2 by letter dated 14 th February, In order to adjust the excess amount in terms of Clause 6, 7 and 8 of the Voluntary License Agreements, the plaintiff in view of order dated 25 th August 2010 passed by the Copyright Board, filed a suit being Suit No. 565/2011, in the month of February, 2011 before the High Court of Judicature at Bombay titled as Music Broadcast Private Limited v. Phonographic Performance Limited inter-alia praying that the defendant No. 2 be restrained from terminating the Compulsory Licenses dated 3 rd September, 2010 unless the excess amounts paid by the plaintiff has been adjusted and exhausted fully. The High Court of Judicature at Bombay by order dated 9 th February 2011 had recorded that the defendant No. 2 would not terminate the voluntary licence agreements entered with the plaintiff. The said interim order remained operative till the filing of the present suit. 13. The defendant No. 2 sent a letter dated 17 th June, 2013 in response to the letters dated 7 th March, 2013, 5 th April, 2013, 7 th May, 2013 and 7 th June, 2013 sent by the plaintiff whereby the defendant No. 2 averred that the plaintiff was not complying with the terms and conditions as envisaged in the order dated 25 th August, 2010 passed by the Copyright Board. The adjustments made by the plaintiff were unilateral and without any legal foundation. It was further alleged that the plaintiff was in default of Para (b) of the order dated 25 th August, 2010 passed by the Copyright Board. The defendant No. 2 CS(OS) No.2119/2013 Page 12 of 57

13 had also alleged that the plaintiff had failed to keep the Bank Guarantees alive and subsisting even for a brief period. 14. The plaintiff replied to the letters dated 17 th June, 2013 vide separate letters dated 28 th June, 2013 specifically denying the contents thereof. The plaintiff stated that that it has been regularly revising the bank guarantee within two weeks of the close of every quarter of the year which rendered the contention of non-compliance of the order dated 25 th August, 2010 passed by the Copyright Board as nugatory and otiose. The plaintiff by its letter dated January, 2013 bearing Reference Number BG/12/Mumbai/010 forwarded an extension of the Original Bank Guarantee issued by Axis Bank bearing number dated 12 th January, This extension of the Original Bank Guarantee remained valid till 31 st March, Thereafter, the plaintiff s bankers namely Axis Bank by their Registered Notice dated 3 rd April, 2013 notified the defendant No. 2 about the cancellation of the Original Bank Guarantee which expired on 31 st March, Pursuant to the letter dated 3 rd April, 2013, Axis Bank on instructions from the plaintiff Company had revised the Original Bank Guarantee bearing number dated 12 th January, 2011 with effect from 1 st April, 2013 to 30 th June, Therefore, the Bank Guarantee was extended by the plaintiff s bankers with effect from 1 st April, 2013 and not 6 th April, 2013 as falsely contended. Thereafter, in due compliance of the order dated 25 th August, 2010 passed by the Copyright Board; the plaintiff vide letter dated 12 th April, 2013 bearing Reference No. BG/12/Mumbai/011 (within two weeks of the close, of CS(OS) No.2119/2013 Page 13 of 57

14 the quarter ending 31 st March, 2013 i.e. before 15 th April, 2013) forwarded the extension of the Original Bank Guarantee. 15. On merit, it is alleged by the plaintiff that in compliance with the order dated 25 th August, 2010 and the compulsory licenses granted by the Copyright Board the amount due from the plaintiff to the defendant No. 2 had to be adjusted against the excess payment of license fee. The computation of the same was also sent along with letter dated 5 th October, The defendant No. 2 had in fact, without demur and protest had been accepting the said adjustments till the letters dated January 13 th January 2011 and 19 th January 2011 were written whereby for the first time the defendant No.2 raised a grievance about the said adjustments but the same was not acceptable to the plaintiff. The plaintiff by various letters including 8 th September 2010, complied with the terms of the order of the Copyright Board dated 25 th August, 2010 including enclosing bank guarantees of Rs.10,000/- for the respective radio stations (aggregating to Rs. 2,00,000/-). But the defendant No. 2 initially refused to accept the service of the said Bank Guarantees however thereafter has accepted the same. It is alleged by the plaintiff that the defendant No. 2 in violation of the order dated 25 th August, 2010 failed to return the said bank guarantees after its expiry and it was only returned pursuant to the order dated 9 th February, 2011 passed by the High Court of Judicature at Bombay in Civil Suit No. 565 of Prior to the date of said order, the defendant No. 2 sent a letter dated 13 th January, 2011 to the plaintiff wherein the defendant No. 2 invoked clause 10 of the License Agreements and called upon the CS(OS) No.2119/2013 Page 14 of 57

15 plaintiff to provide the defendant No. 2 an inspection of the copies of the records of the sound recordings used by the plaintiff within 15 days from the date of receipt of the said notice and another letter dated 19 th January 2011, to the plaintiff stating that the plaintiff had failed to pay any license fee for the period February, 2010 to August, 2010 and the outstanding license fees was to the tune of nearly Rs.2 crores, the adjustment of royalty could not be done unilaterally any adjustment sought to be made by the plaintiff was incorrect as it had preferred an appeal being CMA No. 3382/2010 assailing the order dated 25 th August 2010 passed by the Copyright Board before the High Court of Judicature at Madras. Written statement (defence) 16. Written statement has been filed by the defendant No.2 who is the main contesting party in the suit and has raised various preliminary objections inter-alia stating that the present suit is an abuse of process whereby the plaintiff, having failed to obtain any relief on the same cause of action in the Court within whose jurisdiction the entire purported cause of action arose, being the Bombay High Court, which was also the Court of exclusive jurisdiction by express agreement between the plaintiff and the defendant No.2, has attempted to recycle the same cause of action by clever verbal jugglery in order to obtain relief in this Court which does not enjoy territorial jurisdiction in the matter. 17. The case of the defendant No.2 is that the present suit is an abuse of process of the court as the plaintiff in its own suit No.565/2011 which was pending in the Bombay High Court, the CS(OS) No.2119/2013 Page 15 of 57

16 plaintiff sought an injunction restraining the defendant No.2 from terminating the voluntary licence agreements (VLAs) and the compulsory licenses, but it could not obtain an order restraining defendant No.2 from cancelling the compulsory licenses. The plaintiff is now doing forum shopping, seeking to obtain orders from this Court that the plaintiff could not obtain on the same cause of action in the Bombay High Court. 18. It is stated that the plaintiff s entire cause of action is its claim, based on its own interpretation of the VLAs, of a purported right to adjust alleged overpayments made by the plaintiff under the VLAs against the Compulsory Licence compensation fixed by the Copyright Board in the order dated 25 th August, The main lis between the parties comprises the plaintiff s interpretation of Clause 8 of each of the VLAs (a mixed question of fact and law) and the plaintiff s averments regarding the quantum of dues payable to defendant No. 2 under the VLAs. The dispute thus arises out of the VLAs. No fresh cause of action has been shown to exist or to have arisen independent of the VLA to enable the plaintiff to file this suit in Delhi. The said dispute could have been easily denied by the Bombay High Court. Therefore, the defendant No.2 has rightly challenged the question of territorial jurisdiction as it is settled law that each and every fact pleaded by a plaintiff does not give rise to a cause of action; rather the facts constituting the cause of action are only those having a nexus or relevance to the lis. Before exercising jurisdiction, the Court must be satisfied that all relevant facts which have a substantial nexus with the lis are located within its territorial CS(OS) No.2119/2013 Page 16 of 57

17 jurisdiction. The plaint must be read in a meaningful manner to find out the intention behind the suit. A mere insertion of extraneous matter in the present suit cannot change the substance of its cause of action. The only lis in the matter relates to the alleged rights arising out of VLA, and the same is subject to exclusive jurisdiction of Courts in Mumbai. 19. It is alleged by the defendant No.2 that admittedly on 25 th August, 2010 the Copyright Board issued an order allowing the complaint filed by the plaintiff in 2002 and directed the Registrar of Copyrights to issue Compulsory Licenses to the plaintiff on the terms set out in the order itself. On 3 rd September, 2010 the Registrar of Copyrights issued 20 compulsory licences on the same terms. The relevant condition of licence for the purposes of the present suit is clause (f) which reads: "In case payment is not made by the Licensee for consecutive two months PPL herein shall be entitled to cancel the licence by giving notice of one month and recover the remaining dues from the bank guarantee". 20. It was alleged that it was obligatory on the part of the plaintiff to comply with the terms of the compulsory licenses subject to which they were allowed to broadcast the repertoire of sound recording works administered by the defendant No.2. But the plaintiff admittedly never made any payment of compulsory licence compensation but, instead, raised a claim under the Voluntary Licence Agreements for adjustment of alleged excess payments made under the said VLAs against the compensation payable to the plaintiff under the terms of compulsory licence. CS(OS) No.2119/2013 Page 17 of 57

18 21. It is also submitted that the plaintiff has dishonestly suppressed the fact that the Cancellation notice took effect from 21 st July, The plaintiff had made the same false averment in para 5 of its WP(C) No. 4533/2013 filed before this Court on 24 th July, 2013 when the matter came up for hearing. On the said date, as recorded by the Court there was no time left for hearing, hence a temporary injunction was granted until the next date of hearing. The plaintiff thus obtained the said interim order whilst failing to disclose that the impugned cancellation notice had already taken effect, in order to obtain an order restoring the status quo ante rather than one merely maintaining the status quo. 22. The reliance on the VLAs is misplaced since the plaintiff itself had abandoned them from February, 2010 onwards by committing willful breaches of their essential terms, in particular by ceasing to pay any licence fee or submitting any logs of usage of the plaintiff's repertoire. The plaintiff has admitted the same in its replication however as an afterthought and in an attempt to cover up its breaches had stated that: "The plaintiff herein out of sheer inadvertence could not pay the royalty for a brief period of February 2010 to September, 2010." It is thus admitted that the plaintiff had abandoned the VLAs long before the Compulsory Licensing Order. The plaintiff's claim for an injunction based on the same agreements which the plaintiff itself has not performed is unlawful and without merit. 23. It is alleged by the defendant No.2 that the plaintiff deliberately is misinterpreting Clause 8 of the VLAs inspite of its clear language. CS(OS) No.2119/2013 Page 18 of 57

19 (i) The VLAs were not ad hoc or transitional agreements that were executed merely in relation to the expected orders of the Copyright Board. Rather, the VLAs were free standing negotiated agreements which merely took into consideration contingencies that might possibly arise during the terms of the different VLAs. The term of each VLA was only 12 months and defendant No. 2 was entirely at liberty to renew them or not. (ii) It is the Licensor who is authorized to adjust the license fee payable under the VLA's and not the Licensee. (iii) The plaintiff deducted IDS both from the payments made originally under the VLAs and again from the payments shown as compulsory licence compensation. This is an admission by the plaintiff that the two were separately payable. 24. On merit, defendant No.2 has submitted that the plaintiff's claim under VLAs not based on final order. The adjustment referred to in para 3 of Clause 8 of the VLA's arises only on "the final orders are passed in the pending proceedings". The clause does not refer to the orders to be passed by the Copyright Board but to the "final Orders". The Copyright Board's orders are appealable under Section 72 of the Copyright Act. An appeal is pending before the Madras High Court. Either party if aggrieved by the appellate order would have a further remedy before the Supreme Court under Article 136 of the Constitution. There can be no question of the parties making any adjustment under para 3 of Clause 8 of the VLAs. The plaintiff was bound to make payments to defendant No. 2 as required by the Compulsory Licensing order dated 25 th August, As the plaintiff CS(OS) No.2119/2013 Page 19 of 57

20 failed to do so, it has to face the consequences envisaged in clause (f) of the said order. 25. Defendant No.2 submits that the plaintiff s claim of the purported adjustments under the VLAs is admittedly pending in the Bombay High Court in Suit No.565/2011. The Bombay High Court has admittedly not granted any interim relief qua the termination of the Compulsory Licenses/adjustments. 26. As per defendant No.2 the outstanding as on 31 st July, 2014 on account of compulsory licence compensation due from the plaintiff is Rs.9,71,89,343/- which includes the interest on outstanding from the plaintiff. The ad-interim order has also prevented defendant No.2 from encashing the Bank Guarantees which are unconditional which otherwise it is entitled to do. The amount secured under the Bank Guarantee is Rs.41,97,987/-. Even if the Bank Guarantees are allowed to be encashed the loss caused to defendant No.2 could only be offset marginally. The licenses granted by the Central Government to the plaintiff for operating FM radio stations is only ten years and all licenses/permissions are due to expire in It will be impossible for defendant No.2 to recover the outstanding amount from the plaintiff thereafter if the plaintiff closes down its only business. 27. The Voluntary License Agreements discloses that "In case the rates are reduced by the final order then the Licensor shall adjust the difference from further usages by the Licensee." Further, in terms of Clause 8 of the Voluntary License Agreement the only 'pending proceeding' at the time of entering the Voluntary License Agreement CS(OS) No.2119/2013 Page 20 of 57

21 were the proceedings before the Copyright Board. The issue of adjustments being done by the plaintiff is already pending before the High Court of Judicature at Bombay in Civil Suit No. 565/2011 titled as Music Broadcast Private Limited v. Phonographic Performance Limited. 28. Thus, the balance of convenience entirely favours defendant No. 2. There can be no balance of convenience in favour of a party which has not come to Court with clean hands. The plaintiff is in material breach of the essential terms of the VLAs which they base upon their purported claim and the same are in infringement of copyright as well as of the essential terms of the Compulsory Licenses. Secondly, the retroactive nature of the interim injunction in force deprives defendant No. 2 of its legitimate remedies for infringement by the plaintiff after cancellation of the compulsory licenses. Further, continuance of the interim order affects defendant No. 2's business rather than the plaintiffs. And finally any interim order in favour of the plaintiff in the present suit pre-judges defendant No. 2's pending WP(C) No of 2011 wherein, if defendant No. 2 succeeds, die plaintiff will be entitled only to five compulsory licences, yet will have obtained additional benefit of fifteen such licences to which it is not entitled. 29. With regard to the other submission that the plaintiff failed to submit every month for each of its stations, complete and necessary declarations regarding its net advertising earnings and pro-rata distribution, the plaintiff has denied the same. It is alleged that the plaintiff is not obliged under the said order dated 25 th August, 2010 CS(OS) No.2119/2013 Page 21 of 57

22 Compulsory Licenses dated 3 rd September, 2010 to submit, every month for each of its stations, complete and necessary declarations regarding the net advertising earnings and pro-rata distribution. Further, the defendant No.2 in the impugned notice has for the first time raised the said issue as a ground for cancellation of the Compulsory Licenses. The defendant No.2 has since September, 2010 admittedly never raised the issue of lack of complete and necessary declarations regarding net advertising earnings and prorata distribution as a ground for Cancellation of Compulsory Licenses. 30. It is submitted by the plaintiff that the defendant No.2 in the impugned notice has raised the alleged issue of submission of log reports as a ground for cancellation of the compulsory licenses. The defendant No.2 has since September, 2010 admittedly never raised the issue of lack of submission of monthly usage log reports as a ground for Cancellation of Compulsory Licenses. It is specifically denied that the plaintiff has failed and neglected to submit monthly usage log reports. It is submitted that the plaintiff vide their letters dated 24 th January, 2011 and 14 th February, 2011 addressed to the defendant No.2 indicated that the logs were available at its office and the same may be inspected by a prior written notice. In fact, the same were enclosed vide letter dated 14 th February, 2011 by way of abundant caution for its records as it chose not to inspect the same by visiting the office. 31. In the reply to the other allegation that the plaintiff has not reported its net advertisement revenue for the month of January, CS(OS) No.2119/2013 Page 22 of 57

23 2012 for its FM Radio Station located in the city of Ahmedabad, the plaintiff has denied the same. The plaintiff has also referred its letter dated 6 th February 2012, whereby it has forwarded its net advertisement revenue for the month of January 2012 for its FM radio station located in the city of Ahmedabad. It is submitted by the plaintiff that the alleged grievance is only an afterthought and has been raised more than one year after the alleged default. The alleged grievance of the defendant No.2 was communicated to the plaintiff only by way of the Cancellation Notice dated 21 st June, The defendant No.2 had never in any of its prior correspondence sought to terminate the Compulsory Licenses on the basis of the said grievance. 32. The other contention of the defendant No.2 is that the plaintiff has been making defaults in providing Bank Guarantees as per clause (b) of the compulsory license read with para 30.27(b) of the Copyright Board s order. However, it is submitted that it has been regularly revising the Bank Guarantee within two weeks of the close of every quarter of the year which renders the contention of noncompliance of Para (b) of the order dated 25 th August, 2010, passed by the Copyright Board as erroneous. The plaintiff vide its letter dated 11 th January, 2013 bearing Reference Number BG/12/Mumbai/010, forwarded an extension of the Original Bank Guarantee issued by defendant No.1 bearing number dated 12 th January,2011. This extension of the Original Bank Guarantee remained valid till 31 st March, Thereafter, the plaintiff's bankers namely defendant No.1 by their CS(OS) No.2119/2013 Page 23 of 57

24 Registered Notice dated 3 rd April, 2013 notified the defendant No.2 about the cancellation of the Original Bank Guarantee which expired on 31 st Match, Pursuant to the letter dated 3 rd April, 2013 defendant No.1 on instructions from the plaintiff have revised the Original Bank Guarantee bearing number dated 12 th January, 2011 with effect from 1 st April, 2013 to 30 th June,2013. Therefore, the Bank Guarantee was extended by the plaintiff's bankers with effect from 1 st April, 2013 and not 6 th April, 2013 as falsely contended. Thereafter, in due compliance of the order dated 25 th August, 2010 passed by the Copyright Board, the plaintiff has vide letter dated 12 th April, 2013 bearing Reference No. BG/12/Mumbai/011 within two weeks of the close of the quarter ending 3 rd March, 2013 (i.e. before 15 th April, 2013) forwarded the extension of the Original Bank Guarantee. The said Bank Guarantees have been regularly revised/extended by the plaintiff till date in terms of the Compulsory License(s). 33. In rejoinder arguments, it is also submitted that the impugned cancellation notice is a ploy to circumvent the order dated 25 th August, 2010 by the Copyright Board which has been upheld by various courts including the Supreme Court, as the defendant No.2 had assailed the said order before various Courts. Firstly the defendant No. 2 had preferred an appeal dated 28 th October, 2010 under Section 72 of the Copyright Act, 1957 before the High Court of Judicature at Madras. The said Court by its order dated 22 nd December, 2010 in CMA No. 3382/2010 dismissed the application for interim relief, seeking stay of the order dated 25 th August The CS(OS) No.2119/2013 Page 24 of 57

25 above said order dated 22 nd December, 2010 was challenged before Supreme Court in Special Leave Petition (Civil) No /2011 which was also dismissed by order dated 5 th April, As the defendant No.2 has failed to get the orders of stay of operation of the order dated 2 5th August, 2010 passed by the Copyright Board, the defendant No. 2 by instituting a Writ Petition (Civil) No.8144 of 2011 titled as PPL v. Union of India and others before this Court wherein the plaintiff was also arrayed as respondent No.3, sought quashing of the Compulsory Licenses dated 3rd September, 2010 granted by the Registrar of the Copyright Board. This Court vide order dated 1 8th November, 2011 refused to grant any interim order in favour of defendant No. 2. The Division Bench of this Court vide order dated 4th January 2012 directed both the parties i.e. plaintiff and defendant No.2 to comply with the directions issued by the Division Bench in LP.A No.1037/2011. It is submitted that the plaintiff continues to comply with the order dated 4th January, 2012 passed by the Single Judge of this Court. This Court vide order dated 9 th January, 2015 dismissed the W.P. (C) No of 2011.The defendant No. 2 thereafter in a ploy to circumvent the order dated 25 th August, 2010 passed by the Copyright Board filed a Contempt Petition in the month of March, 2012 being Cont. Cas No. 203/2012 in the above said writ petition Civil No. 8144/2011,inter alia, alleging non-compliance of the order dated 4 th January 2012 passed by this Court which mandated the compliance of the order dated 25 th August 2010 passed by the CS(OS) No.2119/2013 Page 25 of 57

26 Copyright Board. The petition was subsequently dismissed as not pressed, by this Court by its order dated 19 th February, The plaintiff admits that it had earlier filed a Writ Petition being W.P. (Civil) No of 2013 inter-alia seeking a writ of certiorari for quashing the impugned notice dated 21 st June, The plaintiff herein vide order dated 29 th October, 2013 withdrew the Writ Petition with the liberty to agitate its grievance before a Civil Court. 36. It is also pointed out by the plaintiff that the defendant No.2 by relying upon the Cancellation Notice dated 21 st June, 2013 filed a suit for infringement being Suit (Stamp) No. 626 of 2013 against the plaintiff filed a suit for infringement. Till date, the defendant No.2 has not been granted any relief in the said suit. It is also stated that the plaintiff has received the Cancellation Notice dated 21 st June, 2013 on 24 th June, In fact, the plaintiff received this notice on 22 nd June, 2013 as averred in the written statement of defendant No. 2 and proved by the Speed Post and courier delivery reports filed by defendant No. 2 at pp. 54 and 55 of its documents. In its replication the plaintiff has not denied and hence admitted the said delivery on 22 nd June, In view of rival submissions made by the parties and various documents referred by the parties, let me first deal with the issue of territorial jurisdiction. It is settled law that once the Court holds that it has no jurisdiction in the matter, it should not consider the merits of the matter. Reliance is placed on Jagraj Singh v. Birpal Kaur, (2007) 2 SCC 564 (para 27). Thus, as agreed by the parties also let me first deal with the issue of territorial jurisdiction. CS(OS) No.2119/2013 Page 26 of 57

27 38. On the issue of territorial jurisdiction arising from the location of a subordinate office, Mr. Amit Sibal, learned Senior counsel appearing on behalf of the defendant No.2 has referred the judgment of Patel Roadways Ltd. v Prasad Trading Co. AIR 1992 SC 1514 (paras 9-12) in which it has been explained the true import of Section 20(a) and the explanation to Section 20 CPC. The Supreme Court interpreted the explanation to Section 20 as an Explanation Section 20(a), and the law is settled that a suit can be filed at a place where the branch/subordinate office of the defendant is located only if a part of cause of action has arisen at that place and not otherwise. This Court relied upon Patel Roadways (supra) in Anant Raj Industries Ltd v. Balmer Lawrie Co. Ltd., (2003)103 DLT 169, (para 10) and held as under: 10..When this decision is applied to the facts of the present case, it will appear that it may have been proper for the Plaintiff to file a suit in Calcutta where the principal office of the Defendant is located. It could also have been filed in Delhi where a subordinate office is located, provided the cause of action of which the Plaintiff is aggrieved, has had arisen in Delhi. In am of the view that despite the fact that the contract might have been entered into at Delhi and money is paid in Delhi, the cause of action on which the suit is predicated was unrelated to the agreement. On an application of the ratio of Patel Roadways, there is no scope for Delhi Court to exercise jurisdiction. Please also see Kensoft Infotech Ltd. vs. Mr. R.S. Krishnaswami & Ors., ILR (2007) I Delhi 308 at para 61-62, pp It is submitted by the defendant No.2 that the contents of present plaint are similar as that of the plaint in Suit No. 565 of 2011 to CS(OS) No.2119/2013 Page 27 of 57

28 filed by the plaintiff in the Bombay High Court and the cause of action is also similar viz. the plaintiff s claim under the Voluntary Licence Agreements. Thus, this Court has no jurisdiction to entertain the present suit. The plaint is liable to be returned to the plaintiff for presentation before the proper Court under Order 7 Rule 10 CPC. It is argued by Mr. Amit Sibal, learned Senior Counsel that each and every fact pleaded by the plaintiff does not give rise to a cause of action creating territorial jurisdiction, rather the intention of the suit as a whole has to be considered, trivial aspects of the stated cause of action with no nexus to the lis between parties do not confer territorial jurisdiction. The facts constituting the cause of action are only those having a substantial nexus or relevance to the lis. Before exercising jurisdiction, the Court must be satisfied that all such facts arise within its territorial jurisdiction. The cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a court of law. In other words, it is those facts, which if taken with the law applicable to them, gives the plaintiff a right to claim against the defendant. The facts pleaded must be material, integral or essential to the lis between the parties which must be determined on a meaningful reading of the plaint. 40. Mr. Sibal has argued that the plaintiff has erroneously relied upon a suit filed by defendant No. 2 as plaintiff in this Court in Phonographic Performance Limited v Spring Club, 2014(209) DLT 584 to argue that defendant No. 2 itself avers that it has a branch office in Delhi from which it carries out the business of licensing of sound recordings. The said case is irrelevant for CS(OS) No.2119/2013 Page 28 of 57

29 determining whether cause of action has arisen within the territorial jurisdiction of this Court in the facts of the present case. Phonographic Performance Limited (supra), defendant No. 2 had filed a suit for infringement of its copyright in sound recordings and averred that it has a branch office in Delhi from which it carries out the business of licensing sound recordings to maintain a suit as a plaintiff under Section 62(2) of the Copyright Act. Section 62(2) of the Copyright Act reads as under: For the purpose of sub-section (1), a district court having jurisdiction shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. Under Section 62(2) of the Copyright Act, it is not a sine qua non, for a copyright owner to maintain a suit for infringement, that the cause of action should arise at the place of suing. The situation is wholly different from Section 20(a) CPC read with the Explanation, which mandates that the cause of action must have arisen at the place of a subordinate office of the defendant to create territorial jurisdiction at such place. The fact that defendant No. 2 has an office in Delhi and does licensing of sound recordings from such office does not give rise to any cause of action as it is immaterial to the lis between the parties in this suit, which relates to the entitlement of the In CS(OS) No.2119/2013 Page 29 of 57

30 plaintiff to adjust the alleged excess payments made under VLAs. It is submitted that mere location of a branch office of PPL in Delhi and the licensing of sound recordings from such office does not clothe this Court with territorial jurisdiction as no cause of action has arisen within the territorial jurisdiction of this Court. 41. It is relevant to mention here that after the order in the interim application was reserved on 10 th August, 2015 and before pronouncement of the order, the plaintiff filed fresh application being I.A. No.20535/2015 under Section 151 CPC for placing on record certain further development and additional documents. The said applications were listed before Court on 29 th September, The defendant No.2 sought time to file the reply. After filing the reply on 8 th January, 2016, it was observed and agreed by the parties that the averments made in the application are linked with the interim injunction application thus the same be decided along with I.A. No.1762/ It was alleged in the application that on 14 th September, 2015 pending motion being No.654/2015 was taken by the Bombay High Court in C.S (O.S) 565/2011 and the same was disposed of after recording the statement on behalf of the plaintiff that the plaintiff has adjusted the amount permitted by the Copyright Board under the compulsory licenses in respect of voluntary licenses and no further amount remains to be adjusted. Counsel for defendant No.2 raised its objection that the adjustment was impermissible and Court had CS(OS) No.2119/2013 Page 30 of 57

31 observed that the objections be kept open to the final hearing of the suit, however the pending motion was disposed of. 43. It is evident from the said order that the issue of adjustment of the amount is kept alive which is to be decided at the final stage. The said amount is pertaining to voluntary licenses and the plaintiff has exercised its power to adjust the amount suo-motto in view of the clause 8 of the agreement. 44. Mr. Sibal has rightly argued that once the advantage has been taken by the plaintiff in clause 8 of the agreement, the clause 33 of the said agreement ipso facto would be attracted. 45. The plaintiff has invoked the territorial jurisdiction of this Court to entertain the present suit on the grounds that the defendant No.2 carries on business within the territorial jurisdiction of this Court at Delhi. The defendant No.2 in Writ Petition (Civil) No. 8144/2011 filed by it before this Court inter-alia seeking cancellation of 15 Compulsory Licenses granted by the Registrar of Copyrights has admitted in Writ Petition that the defendant No.2(petitioner therein) is carrying on business from its office in Delhi. The defendant No.2 in the said Writ Petition (Civil) No. 8144/2011 describing the jurisdiction of this Court to entertain the Writ Petition stated that the plaintiff (arrayed as respondent No.3 in the Writ Petition) is broadcasting the sound recordings of the defendant No.2 (petitioner in the writ petition) from one of its FM Radio Stations located at Delhi. Writ petition (Civil) No.8144/2011 preferred by the defendant No.2 (Petitioner therein) has been dismissed vide judgment dated 9 th January, CS(OS) No.2119/2013 Page 31 of 57

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