$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Pronounced on:

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1 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Pronounced on: OA 198/2014 in CS(OS) 1721/2013 HUNGAMA DIGITAL MEDIA ENTERTAINMENT P VT LTD... Plaintiff Through: Mr. Amit Sibbal, Sr. Adv. with Mr. Harsh Kaushik, Mr.Abhay Chattopadhyay and Mr.Vinay Tripathi, Advocates. versus M/S ADB MOBILE ENTERTAINMENT & ORS... Defendants Through: Mr. C. M. Lall and Ms.Nancy Roy, Advocates. CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J. OA 198/2014 in CS(OS) 1721/ The present appeal is filed by the plaintiff against the impugned order of the Joint Registrar dated passed in IA No /2013. The said application being IA No /2013 was filed under Order 11 Rules 1 and 2 CPC seeking leave to deliver interrogatories on the appellant/plaintiff. Before going to the impugned order, it would be appropriate to first have a look at the pleadings. 2. The present suit is filed seeking a decree of permanent injunction to restrain the defendants from authoring, editing, publishing, circulating any letter, pamphlet, etc. details of which are elaborated in the list of documents and also seeking a decree of Rs.1 crore jointly and severally against the defendants. The reliefs are claimed on account of alleged CS(OS) No.1721/2013 Page 1 of 13

2 defamatory communications, circulars, etc. circulated by the defendants. 3. As per the plaint, the plaintiff claims to be a leader in the field of mobile and digital entertainment solutions, digital advertising, gaming and applications. It launched its mobile division called Hungama Mobile in It is further averred that the plaintiff owns a bouquet of premium and popular sites in the entertainment category covering daily news, imagery, videos, etc. The plaintiff and the defendants entered into an agreement on read with Addendum No. 1 dated The defendants under the aforesaid agreement were authorised to check any conventional stand-alone retail shops (also referred to as vendors) in Delhi and six other states to find out whether the said vendors were distributing the content (limited only to full length audio songs, MP3 ringtones, polytones, wallpapers, animations and themes) of concerned content partners of the plaintiff as detailed in a list sent by the plaintiff containing the names of the content partners to the defendants. The defendants were also authorised to initiate legal action against the said vendors, if necessary, for infringement of copyright after obtaining the written approval of the plaintiff. The defendant could also offer to the vendors to obtain a license from the plaintiff and collect the license fee. It is the stand of the plaintiff that the performance of the defendants was abysmal and the repeated request to improve the performance led to no results. On the plaintiff terminated the agreement dated with effect from It transpires as alleged by the plaintiff that the defendants had filed unauthorised cases/firs without written permission of the plaintiff. As the defendants were unable to handle the said cases, in a bid to foist the CS(OS) No.1721/2013 Page 2 of 13

3 blame on the plaintiff, on the defendants lodged a complaint which was registered on as an FIR under Sections 406, 420 and 120B IPC and Sections 63, 68 and 69 of the Copyright Act, 1957 against the plaintiff and its director. It is stated that the FIRs centred around the representations allegedly sent by the plaintiff to the defendants containing a list of 336 content partners and an assurance that the plaintiff had a right to deal with the list of 336 content partners. It is stated that it is the case of the defendant that as the plaintiff failed to furnish the agreement with the content partners, the FIRs were lodged. The plaintiff has denied the allegations of the defendants stating that they did not send any list of 336 content partners to the defendants and that the list relied upon by the defendants is forged and fabricated. 5. It is further urged in the plaint that now the defendants have started circulating libellous letters and pamphlets among the plaintiff s content partners and the vendors and they have also issued such press statements which have been published in various newspapers. The said libellous letters and pamphlets, it is asserted, contains false and baseless contentions against the plaintiff and its directors. It is further alleged that the defamatory statements have been made and published by and at the instance of the defendants which is lowering the reputation of the plaintiff and causing heavy financial loss to the plaintiff and damaging the plaintiff s credit, goodwill and reputation. Hence, the present suit has been filed on account of the said defamation seeking the aforesaid reliefs. 6. The defendants No. 1 to 4 have filed their written statement in which it has been reiterated that while conducting raids pertaining to copyright infringement by defendant No.1, the police started asking for a CS(OS) No.1721/2013 Page 3 of 13

4 detailed list of companies on behalf of which defendant No.1 was lodging criminal complaints and copyright documents in respect of the work for which raids were conducted. It is stated that defendant No.1 also received a notice from EOW to the said effect. It is also averred that defendant No.1 was directed by various courts to furnish relevant documents pertaining to ownership of copyrights by the plaintiff company. It is urged that the plaintiff has failed to provide the copyright certificates and agreement with its alleged content partners. It is in this background that the FIR was got registered against the plaintiff as the plaintiff does not have a valid agreement with its 336 content partners. It is further urged that as the plaintiff has failed to provide necessary details of its agreement with the content partners, the defendant had no alternative but to approach the content partners directly asking for the relevant documents. It is denied that the defendants have made any defamatory or libellous statement in the said letters. 7. In the light of these facts the defendants moved the present application in question under Order 11 Rule 1 & 2 CPC. The application narrates the full dispute between the parties. The application only submits that in view of the plaintiff s own admission that it has 336 content partners, it is necessary that the plaintiff should be called upon to furnish the details of all the content partners along with the agreement and other copyright documents. Hence, based on this the defendants seek leave of the court to deliver the following interrogatories:- I. How many licenses/authorizations does the plaintiff have from content owners for use of their music for retail business? Please provide names of all licensors for which the plaintiff holds licenses and dates since when the plaintiff CS(OS) No.1721/2013 Page 4 of 13

5 acquired these licenses. II. How many licenses/authorizations does the plaintiff have from content owners for use of their music for CRBT (Caller Ring Back Tunes)? III. Does the plaintiff have any Power of Attorney from the Content owners for authorizing raids and seizure operations and making complaints on their behalf? IV. If the answer to the Question No.3 is Yes, how many Power of Attorneys does the Plaintiff have from the Content owners for authorizing raids and seizure operations and making complaints on their behalf? V. How much money has been remitted to the content owners as royalties for use of their music in retail business? VI. How much money has been remitted to the content owners as royalties for use of their music in CRBT (Caller Ring Back Tunes)? 8. By the impugned order dated , the Joint Registrar held that interrogatories No. I, III and IV are not specific and have been framed in a vague language inasmuch as the period for which licence authorisation is required is not stipulated and that the plaintiff cannot be expected to reveal entire business information to the defendants. Interrogatories V and VI regarding remitting money to the content partners as royalty was held to be beyond the scope of the present suit. The impugned order further directed the defendants to deliver interrogatories No. I, III and IV to the plaintiff for the limited period during which the agreement between the plaintiff and the defendants subsisted i.e to I have heard the learned counsel for the parties and perused the record. 10. Learned senior counsel for the plaintiff has submitted that the CS(OS) No.1721/2013 Page 5 of 13

6 directions in the impugned order are entirely erroneous. He has made the following submission:- (i) The interrogations as now framed by the impugned order actually tentamount to redrafting of the interrogatories. It is stated that it is not for the court to frame or re-frame the interrogatories. The Joint Registrar ought to have rejected the interrogatories instead of reframing them. (ii) The interrogatories which are allowed are not relevant to the matter in issue. (iii) The contention of the defendants that the court dealing with the prosecution, namely, the ACMM court has directed filing of copies of the agreements and proof of copyright from the content providers is a submission which is contrary to Section 91 of Cr.P.C. (iv) It is urged that the defendants have failed to file any orders of the ACMM which has sought documents from the defendants. The averment to the said effect is make belief. (v) Reliance is also placed on certain orders placed on record which show that the defendants are actually withdrawing the complaints. Hence, the arguments about the requirement of the prosecuting agency for the said document appears to be misplaced and misconceived. (vi) Learned senior counsel for the plaintiff has placed reliance on the judgments in the case of Sharda Dhir vs. Ashok Kumar Makhija & Ors., 99 ( 2002) DLT 350, Essel Sports Pvt. Ltd. vs. Union of India & Ors. in CS(OS) 1566/2007 dated , G.Nanchil Kumaran vs. Govindasamy Reddiar., L.W.233 and Anila Bala Dasi vs. Rajendra Nath Dalal & Anr., AIR 1916 Calcutta Learned counsel appearing for the defendants has however CS(OS) No.1721/2013 Page 6 of 13

7 defended the impugned order. He submits that whatever was written to the content partners was the truth and nobody can stop the defendants from writing the truth. He also submits that in case the plaintiffs have the necessary documents in their possession, there is no reason for not supplying the said documents. The plaintiffs are bound to make full and fair disclosure of the details of the content providers. No prejudice is caused to the plaintiff by the same. Learned counsel for the defendants has placed reliance on the judgments in the case of Bhakta Charan Malik vs. Nataorar Mallik and Ors., AIR 1991 Ori. 319 and Tarun Kumar and Ors. vs. Ajay Kumar, (1996) 61 DLT Order 11 Rules 1 and 2 CPC reads as follows: 1. Discovery by interrogatories.- In any Suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an Order for that purpose Provided also that interrogatories which do not relate to any matters in question in the Suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross examination of a witness. 2. Particular interrogatories to be submitted.- On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court, and that court shall decide within seven days from the day of filing of the said application, in deciding upon such application, the court shall take into account any CS(OS) No.1721/2013 Page 7 of 13

8 offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the court shall consider necessary either for disposing fairly of the suit or for saving costs. 13. As far as the legal position is concerned, reference in this context may be had to the judgment of this court in the case of Sharda Dhir vs. Ashok Kumar Makhija & Ors. (supra), held as follows: The application was filed by the plaintiff under Order 11 Rule 1 CPC. This rule allowed the court to grant leave to any of the party of the suit to deliver Interrogatories in writing for examination of the opposite party relating to any matter in question in the suit. The object of this rule is that a party knows the nature of his opponent's case before hand in order to meet it at the hearing. Indeed, he is not entitled to know the fact which constitute evidence to prove the opponent's case. The nature of the case of the parties is disclosed in their respective pleadings but in a given case the pleadings may not sufficiently disclose the nature of the parties' case. In order to make good deficiency this rule has been enacted. It is now well settled that administering of Interrogatories is to be encouraged as it is a means of obtaining admissions of parties and tends to shorten litigation. As a general rule the Interrogatory should be allowed, whether the answer to them would either strengthen the case of the party administering them or to destroy the case of the adversary. The court should not be hypertechnical at the stage of the service of the Interrogatories. This rule is to be used liberally whenever it could shorten the litigation and serve the interest of justice. Indeed, it cannot be used as a means of obtaining information which may be admissible during the oral cross-examination of a party and his witnesses. Interrogatories cannot be disallowed merely because the party interrogating has other means of CS(OS) No.1721/2013 Page 8 of 13

9 proving the facts in question. One of the important purpose of interrogatories is to obtain admission of material fact of a case. Under this rule the Interrogatories may be served with the leave of the court by one party to the other in a suit: (1) to ascertain the nature of his opponent's case and material facts Constituting it and (2) to support his own case by obtaining admissions or by impeaching or destroying his opponent's case. The Interrogatories which do not relate to any matter in question involved in the suit, indeed, would be deemed irrelevant even though they might be admissible in oral cross-examination of the witnesses. Rule (6) of Order 11 makes it further clear. It provides that objection to answer an Interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or with the matter inquired into are not sufficiently material at that stage or on the ground of privilege, or on any other ground will be taken in the affidavit in answer. Leave to deliver interrogatories does not imply an order to answer them and any objection to answer can be taken under the Rule. The court is required to decide whether the appellant should be allowed to interrogate the other side, but it is not to determine what question should the opposite party to be compelled to answer. 10. As observed above at the preliminary stage of hearing on the application the court is required to decide whether the applicant should be allowed to interrogate the other side, but is not to determine what question should the opposite party be compelled to answer. Interrogatories may then be served on the other party for his answer to that on affidavit. The party, who has been served with Interrogatories, will then answer the Interrogatories on affidavit or raise objections about the relevancy or they being of scandalous nature, irrelevant, not bona fide, or not to be answered on the ground of privilege etc., in answer. The court then may consider and dispose of the Interrogatories. It will not for the court at this stage of granting leave to consider what particular questions the party interrogated should be compelled to answer. Proper time for considering that CS(OS) No.1721/2013 Page 9 of 13

10 question is after the party interrogated has filed its affidavit in answer. 14. As far as the present application of the defendant is concerned, the only ground mentioned for seeking leave of the court to serve interrogatories as given in the application are that the plaintiff has admitted that it has 336 content partners and hence, it is necessary that the plaintiff should be called upon to furnish the said details. The relevant paras of the application filed by the defendant reads as follows:- 24. The defendants have mentioned all the aforesaid facts in its written statement of defence and have also brought the same to the attention of the court. The plaintiff has failed to provide the valid documents in support of its misrepresentation to the defendants of having agreements with over 336 content partners of the Copyright documents from the alleged content partners. In fact the plaintiff has relied upon the said agreements with the content partners but has failed to produce such agreements before this Hon ble Court. 25. In view of the above, and also in view of the plaintiffs own admission that it has over 336 content partners, it is necessary that the plaintiff should be called upon to furnish the details of all such content partners along with the agreements with such content partners and the copyright documents for the works which the Plaintiff has been issuing licenses on behalf of the alleged content partners and initiating criminal proceedings through its agents against third parties for alleged violation of the copyrights owned by the said content partners with whom the plaintiff has alleged obtained licenses. 15. We may also have a look at the nature of the suit. It is the contention of the plaintiff that the present suit has not been filed by the CS(OS) No.1721/2013 Page 10 of 13

11 plaintiff on account of any damages resulting out of the agreement between the parties dated or its termination dated The suit is filed on the basis of alleged defamatory statements made by the defendants against the plaintiff and its director. It is in this background that the plaintiff seeks the following reliefs:- (a) Pass and grant decree of permanent injunction restraining the defendants, their agents, assigns and servants from authoring, editing, publishing, circulating, or releasing; any letter, pamphlet or press statement defaming the plaintiff including but not limited to its letters, pamphlets and press statements described in the present Suit and annexed in the List of documents at serial nos.2 to 8, serial nos. 9 to 10 and serial nos. 11 to 12 respectively; to anyone including but not limited to any of the Content Partners of the Plaintiff at present (as detailed in the list attached with the Plaintiff s letter to the Economic Offences Wing, Delhi dated ) or in future, through any medium whatsoever; (b) Pass and grant a decree of permanent injunction restraining the defendants, their agents, assigns and servants from authoring, editing, publishing, circulating, or releasing any material through any medium to any person or entity including but not limited to letters, pamphlets and press statements, that defame the plaintiff; (c) Pass and grant a decree of mandatory injunction directing the Defendants to tender an unqualified and unconditional apology to the plaintiff and its Directors for authoring, publishing and circulating defamatory letters, pamphlets and press statements; (d) Pass a decree jointly and/or severally against the Defendants for payment of a sum of Rs.1,00,00,000/- (Rupees One Crore Only), or such other sum as this Hon ble Court may deem fit, in favour of plaintiff as damages 16. The defence of the defendants is essentially that the defendants were compelled to write to the content providers in view of the non- CS(OS) No.1721/2013 Page 11 of 13

12 cooperation of the plaintiff in furnishing necessary details of the content providers and the accompanying documents. It is their defence that what has been written to the content providers is only facts i.e. the truth and hence, no case of defamation is made out. 17. In my opinion, the pleadings of the plaintiff are quite clear and sufficiently disclose the nature of the plaintiff s case. There are large number of circulars and communications which have been filed by the plaintiff claiming defamation against the defendants which are said to have been authored by the defendants. The case of the plaintiff is not based on the Agreement dated Prima facie, the ostensible reason on the basis of which the defendants seem to be demanding the documents appeared to be an attempt only to fortify its FIR/criminal case already registered by the defendants. The argument that the investigating authority or the concerned criminal courts are urging the defendant to file the proof of copyrights can obviously not be a ground in these proceedings for any directions to the plaintiff. It is for the defendants or the State to take appropriate steps in the pending criminal proceeding for summoning of evidence, if necessary. Though, it is doubtful as to why the defendants would be interested in prosecuting the criminal cases filed on behalf of the plaintiff, pursuant to termination of the agreement between the parties. 19. At this stage, it will not be appropriate to permit the defendants to serve interrogatories on the plaintiff as is sought to be done. The documents sought are not relevant for the issue in hand i.e. whether the concerned letter, circulars etc. issued by the defendant are defamatory or CS(OS) No.1721/2013 Page 12 of 13

13 not. In fact, there is no attempt by the defendant to show how these documents are required in the context of the issue in hand. The appeal is accordingly allowed and the impugned order is set aside. August 28, 2015 rb (JAYANT NATH) JUDGE CS(OS) No.1721/2013 Page 13 of 13