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In the year 1983,the said proprietary firm was converted into a private limited company which is the 1st respondent in the present suit and the 2nd respondent constituted respondent Nos.3 and 4 as his proprietary firm ARG |
About 18 years ago before filing of the suit,the respondents came into contact with the petitioners initially as clients in connection with the job of advertisement of their products on All India Radio,theatre and films and later,on television ARG |
These ad-films and jingles fetched handsome returns for the petitioners and boosted their sales beyond their own expectations FAC |
In course of time,the 2nd respondent and partners of the petitioners especially G.K.Pendharkar came very close to each other and developed very intimate relations FAC |
Either at the end of 1983 or early part of 1984,the 5th respondent through the said Doorsarshan decided to introduce the production of films or serials especially for exhibitions on TV instead of exhibiting/telecasting films produced by the professional film producers on payment of exorbitant royalty to them,partly as ... |
The 5th respondent thereafter decided to entertain/welcome and/or encourage the proposals from the private producers to produce such serials or films at their own cost and responsibility and under the said scheme the advertisers desirous of linking up their advertisements with such films or serials were required to neg... |
As against the regular rates/charge of Rs.3,24,000/-for display of advertisements on TV of such advertisers for 120 seconds per telecast,the relevant time,at the rate of Rs.35,000/-only for 120 seconds in addition to the royalty or consideration payable to the producers of such films or serials which invariably was far... |
The 2nd respondent undertook the preliminary project work on his own without loss of any time FAC |
The 2nd respondent made extensive study and research and prepared a format of the proposed serial FAC |
The said team of the 2nd respondent responded to his appeal and took great pains and put in hard work in the said project and presented to him an exclusive and ingenious format of the proposed serial FAC |
The 2nd respondent then approached the 5th respondent through Doordarshan with his proposal to produce the said serial then proposed to be entitled "Mussibat Hai".After a number of meetings between the 2nd respondent and the concerned officers and the authorities of the respondents at Delhi in connection with the said ... |
The entire cost of the spade work and the cost of the title song was borne exclusively by the respondents and nothing was contributed by the petitioners in this regard FAC |
The 5th respondent registered the respondent Nos.1 and 2 as the producers of the said serial FAC |
After finalizing the proposal by the TV authorities,respondent No.2 asked the petitioners as to whether they were interested in the linking up their ads with the said serial FAC |
Petitioners agreed to link up their ads with 26 episodes of the said serial FAC |
The petitioners agreed to pay fixed amount to these respondents per episode for linking up their commercials with the said serial and not on the basis of the actual cost of production of each episode so that if the cost of production exceeded the said fixed amount the respondents had to bear the same FAC |
In these circumstances,the respondents contended that by entering into the said agreement of sponsorship,neither the petitioners nor the respondents created nor did they ever intend to create any relationship of employer and employee and/or master and servant or principal and agent between the petitioners on the one ha... |
Nor did the parties intend that the respondents should produce the said serial for the petitioners or at the instance of the petitioners and the respondents intended to embark on the production of the said serial on their own FAC |
The petitioners by their letter dated 02 January 1987 turned down the respondents' demand and informed the respondents that they had no objection if the respondents went ahead with the production of the said serial and merely requested the respondents that the title of the said serial "Yeh Jo Hai Zindagi" may not be us... |
In the meanwhile,the respondents contended that M/s Brook Bond Ltd.who wanted to link up their commercial with 13 episodes and agreed to pay and paid the ruling market price ARG |
On these grounds,the respondents contended that the suit of the petitioners is misconceived,malicious and baseless and is liable to be dismissed ARG |
The respondents contended that on no occasion the petitioners acted as a producer and even the contract was signed by the petitioners as an Advertiser and by the respondent No.1 as an approved agent ARG |
The respondents strongly contended that the serial "Hum Log" was produced by the petitioners in collaboration with M/s Concept Advertisers ARG |
The trial court raised as many as 12 issues and they are as follows: "1."Is it proved that this Court has no pecuniary jurisdiction to entertain and try this suit FAC |
2.Do FAC |
the plaintiffs prove that the T.V.serial entitled "Yeh Jo Hai Zindagi" was produced by the defendant Nos.1 to 4 as agents and (the said serial made by defendant Nos.1 to 4) in the course of their employment with the plaintiffs as alleged FAC |
3.Do the plaintiffs prove that the entire serial rights including the excluding the exclusive right to use the title thereof,belong to the plaintiffs as alleged FAC |
4.Are defendant Nos.1 to 4 entitled to deny the ownership of the plaintiffs of the Film FAC |
Yeh Jo Hai Zindagi" in view of Exhibits a,B and E (colly) to the plaint FAC |
5.Do FAC |
the defendants prove that the plaintiffs are not the owners of the copyright of the TV serial/film,viz.,"Yeh Jo Hai Zindagi" ,within the meaning of S.17 of the Copyright Act FAC |
6.Do FAC |
the defendant Nos.1 to 4 prove that it was intended between the parties that copyrights in respect of the said film should vest exclusively with the defendants or that the right of ownership was waived by the plaintiffs FAC |
7.Does FAC |
the suit suffer from non-joinder of necessary parties FAC |
8.Is FAC |
the suit not maintainable against defendant No.5 for failure to give notice u/s 80 of CPC FAC |
9.Are FAC |
the plaintiffs entitled to the declaration sought FAC |
10.Are FAC |
the plaintiffs entitled to permanent injuction as prayed for FAC |
11.To what relief,if any,are the plaintiffs entitled FAC |
12.What order FAC |
The trial court found that the petitioners have not been able to prove that the TV serial "Yeh Jo Hai Zindagi" was produced by defendants Nos.1 to 4 as agents in the course of their employment as the agent of the petitioners as contended in the suit FAC |
The petitioners were also not able to prove that the entire serial rights including the exclusive right to use the title thereof belonged to the petitioners as alleged FAC |
It was also held that the respondents Nos.1 to 4 are entitled to deny the ownership of the petitioners of the film "Yeh Jo Hai Zindagi in view of Exhibits A,B and E produced in the case FAC |
It was also held that the respondents proved that the petitioners are not the owners of the copy right of the TV serial/film viz.,"Yeh Jo Hai Zindagi" within the meaning of S.17 of the Copy Right Act and it was intended between the parties that copy rights in respect of the said film should vest exclusively with the re... |
After examining the oral and documentary evidence on record it is disclosed that prior to letter sent on 11 July 1984 the petitioners were acquainted even with the format of the suit serial,they did not have any connection with the suit serial till that date and relied upon the wording used therein to the effect that "... |
G.K.Pendharkar are requested to join Mr FAC |
Oberoi and his creative team when the format of the proposed half and hour sponsored programme shall be presented to you FAC |
That was the first occasion when the format was presented to the petitioners FAC |
It was also on record that the Shri G.K.Pendharkar of the petitioners and respondent No.2 had long standing relations with each other and they had already done a lot of advertising works for the petitioners before the production of the suit serial FAC |
Exhibit G-1 (which is Exhibit 27-A in the petitioners' compilation) is a letter written by Shri S.P.Agrawal,Controller of Programmes of Doordarshan to respondent No.1,M/s Art Commercia with reference to the format for the proposed serial of half and hour duration tentatively titled "Musibat Hai" serial sent to them on ... |
That letter had been addressed to respondent No.1,M/s Art Commercia FAC |
The trial court felt that it was addressed not to the petitioners but to the respondents alone FAC |
The trial court also relied on Exhibit C-1 which indicated that the respondents were submitting a format for the serial which was to be registered on behalf of the client M/s Vicco Laboratories FAC |
The learned Judge of the trial court took the view that this letter nowhere mentioned that the respondents wanted to register their format on behalf of their producers which is consistent with the modern norms of advertising FAC |
The trial court ultimately came to the conclusion that the spade work on the production of the suit serial had already started before 11 July 1984 and on that day for the first time film was presented to the petitioners FAC |
It was,therefore,found that there was no copy right attached to any idea,but copy right is attached to the work and what is important is that not only the idea of producing the suit serial on TV came to the mind of respondent No.2 but he had already started working on it in advance and forwarded it to Doordarshan for i... |
The trial court,after examining Exhibits C-1,E-1,F-1 P-1 found that the proposal was for 52 episodes and was accepted by the Doordarshan,while the case put forth on behalf of the appellants is that the original agreement was to have 27 episodes and having regard to the popularity of the programme the petitioners decide... |
The evidence was found to be inconsistent with the theory put forth by the petitioners that they are producers of the suit serial and,if it were to hold otherwise,the agreement or arrangement with the respondents was only for 26 episodes,whereas the sponsorship was for 52 episodes FAC |
The trial court examined in detail the letter dated 19 July 1984 (Exhibit F-1) written by Shri G.K.Pendharkar of the petitioners and concluded that averments made in the plaint stated that the original agreement was to have 27 episodes but having regard to the popularity of the serial programme the petitioners decided ... |
In one of the contracts (Exhibit H-1) the wording used is as under :- "Sponsorship of programme of 25 mts duration produced by sponsor entitled "Yeh Jo Hai Zindagi" including 2 mts free commercial time FAC |
Relying upon this letter emphasis was laid on the words "produced by sponsors" .Whether two capacities "sponsor" and "producer" can co-exist in one and the same person or not has been examined and the trial court noted that the wording had been borrowed from the Tariff Card and Tariff Card also indicated what are the c... |
It is held that words "produced by sponsors" would not mean that the sponsors themselves are the producers of the said programmes,as is clear from the Tariff Card FAC |
The trial court proceeded thereafter to examine the payments made in regard to production of the serial FAC |
Thus it was found that the first 26 episodes the amount per episode paid by the petitioners was Rs.1,20,000/-and each bill contained the expression "service charges" which was stated by the appellants that the respondents acted as agents of the petitioners for production of suit serial FAC |
On proper construction of the bills the trial court rejected the contention that these bills and payments as showing that they had borne the costs of production of the suit serial and,therefore,they are the producers FAC |
Inasmuch as the respondents could not claim any amount at random,details regarding expenditure were included in the bills and therefore it is the sponsor's price for sponsoring the suit serial FAC |
Strong reliance was placed upon certain circumstances,namely,that the format had been approved by the petitioners only on 11 July 1984 and PW-1 admitted that in view of the bill the entry claiming deduction made by the petitioners in their accounts in the financial year ending on 30 March 1984; that the amount was not ... |
The trial court was conscious enough not to enter into the controversy whether during the particular account year ending on 31 March 1984 the advertising expenditure was fully exempted from tax or that there was disallowance of 20 per cent on that point and the decision regarding income tax deductions is not necessary ... |
The change in the title from 55th episode "for Vicco Laboratories" was introduced FAC |
Their contention was that there was a protest from the petitioners and as a result thereof this change took place FAC |
The 55th episode was telecast sometime at the end of November or beginning of December 1985 and thus there was a time gap of 7/8 months between the protest and the telecast of the 55th episode FAC |
Therefore,it cannot be said that there is any communication between the same Ratio |
The trial court also noticed that in respect of both the advertisements and also in respect of suit serial the petitioners paid to the respondent Nos.5 and 6 amount which was to be the maximum amount FAC |
Thus the profits or loss was of the respondents and there is element of liability to render account was missing and thus there was no question of respondents being the agents of the petitioners within the meaning of S.182 of the Indian Contract Act FAC |
The suit serial was produced by the respondents as agents of the petitioners was false FAC |
The facts emerging in the case indicate that the petitioners had joined the production of the suit serial after some concrete beginning had been made like recording of the title song,the conceiving of the title and format of the suit serial,etc FAC |
The trial court summed up the position that the two capacities "sponsor" and "producer" cannot co-exist in one and the same person FAC |
If the documents are interpreted that the petitioners are the sponsors as well as the producers it would lead to absurd results FAC |
Thus the trial court proceeded to uphold the contentions raised on behalf of the respondents to dismiss the suit FAC |
On appeal,the High Court re-examined the matter and on examination of the pleadings,the contentions,put forth before the court,the evidence on record and the findings recorded by the trial court,concluded that the findings recorded by the trial court are proper FAC |
In doing so,the High Court noticed that the admitted position in the pleadings and the oral evidence is that the petitioners agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had made firm commitment to Doordarshan to that effect and this circumstance militates against the... |
The High Court observed that the petitioners had no knowledge of the Doordarshan scheme regarding the sponsored programme and linking of 2 minutes advertisement and agreed with the findings of the trial court that it is improbable for the respondents to have agreed to reduce its income in the form of commission and und... |
It was stated that certain bills had been given to the petitioners to suit their convenience in tax matters and there was no such bill submitted to the petitioners by the respondents when the petitioner had agreed to extend the sponsorship from episodes Nos.27 to 52 and noticed the nature of the system of accounting ma... |
The High Court also noticed the circumstance of respondent No.2's name appearing as 'producer' in the titles of the suit serial and the petitioners did not do anything by way of protest or other objection or take steps to withhold payment of the respondents which in the normal course would have been done and,therefore,... |
The explanation given by the petitioners that they were busy in the shootings did not carry much weight with the High Court FAC |
The High Court also examined the scope of S.17 of the Copyright Act and the ingredients thereof not having been established the High Court held that no claim could be based on the same and thus agreed with the findings recorded by the trial court and dismissed the appeal FAC |
In this special leave petition u/art.136 of the Constitution,the contentions raised before the High Court are reiterated particularly as to the effect of S.17 of the Copyright Act and whether the correspondence on record would not indicate that they were entitled to ownership and copyright in respect of the TV programm... |
The learned counsel for the petitioners strongly relied upon the following documents: "1.The cost estimate ARG |
2.The bills of cost of production ARG |
3.Letters dated 14 December 1984 and 15 November 1985 ARG |
4.Contracts with Doordarshan ARG |
5.Contractd with Esquire Distributing & Servicing Pvt.Ltd ARG |
We have carefully considered the contentions urged on behalf of the petitioners Ratio |
We are not satisfied that the petitioners have made out a case for consideration by this Court Ratio |
The matter rests purely upon the appreciation of evidence on record and does not give rise to any question of such importance as to be decided by this Court u/art.136 of the Constitution Ratio |
It is clear from the findings recorded by the trial court and the appellate court: "1.That the respondents have not undertaken the production of the said serial at the instance of the petitioners Ratio |
G.K.Pendharkar,the Managing Director of petitioner No.1 was asked to come to view the format of the programme and the petitioners were not even acquainted with the format of the serial while the respondents had taken concrete steps in this regard prior to the letter dated 11 July 1984 Ratio |
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