V.K.JAIN, J. - (1.) THE plaintiff and the defendant entered into a Cooperation Agreement dated 19th December 2005, whereby the plaintiff was granted exclusive rights to market and promote, throughout the territory specified in the agreement, the then current publishing programme (excluding the on-line products) of the defendant to the extent they were available for sale in the specified territory. This was followed by a second Cooperation Agreement effecting from 1st January 2008, for a fixed tenure of three years.
(2.) THE parties also entered into separate Exclusive Reprint Agreements in respect of 27 titles mentioned in para 4.8 of the plaint. Under the agreements for reprint rights, the plaintiff was required to pay an agreed sum, mentioned in each agreement, to the defendant as licence fee, within 90 days from the date of the invoice. Para 12 of the agreement provided that in the event of the publisher i.e. the plaintiff failing to comply with any of the terms and conditions of the agreement, and such breach or default remaining unremedied for a period of 30 days after notice thereof by the defendant/owner to the plaintiff/publisher, then, at the option of the defendant/owner to be exercised in writing, the rights granted to the plaintiff/publisher were to revert back to the owner/defendant without prejudice to its rights to damages for such breach or breaches. The case of the plaintiff is that being the exclusive licencee for India it is the owner of copyright in those 27 titles, subject matter of the Reprint Agreements, and these Reprint Agreements could be terminated only in the event of plaintiff committing breach of any of their terms or conditions and further on its failing to remedy the breach within 30 days of the receipt of the written notice from the defendant. This is also the case of the plaintiff that the defendant was importing, printing, publishing, selling and distributing the "Subject Works" without its permission which amounts to infringement of its copyright in those works. Suit CS(OS) No. 973/2010 has been filed seeking injunction against infringement of copyright of the plaintiff and injunction against breach of the Cooperation Agreement 2008, besides seeking delivery up of all the infringing copies of publications that violate the right claimed by the plaintiff in "Subject Works". In particular, the plaintiff is seeking injunction restraining the defendant from printing, publishing, selling or importing any of the aforesaid 21 titles in India. The suit has been contested by the defendants. With respect to licences for reprints, it is alleged that as per arrangement between the parties, the plaintiff would secure an order from a pharmaceutical company for customized bulk supply, then obtain a quotation from a printer for printing the specified quantities as per that order, and then produce a profit and loss account as per a mutually agreed format. On the basis of such accounting, an amount was agreed and put into the Reprint Licence Agreement. This amount was equivalent to the net sales proceeded, minus printing cost and the plaintiff was paid 16.5 % commission based on the amount arrived at and this amount was included in the Reprint Licence Agreement. It was always understood and agreed that such reprints were to be of a onetime fixed quantity to a specified customer, within a specified time and were not for sale in the open market. A clause was accordingly inserted on the reprints stating therein that they were for pharmaceutical market and not for resale in the trade market. It was also alleged in the Written Statement that a sizeable amount was due to defendant No.1 from the plaintiff towards licence fee as well as towards unpaid invoices for the books which the plaintiff had taken to resell on its own account. Vide interim order dated 17th May, 2010 this Court restrained the defendants from importing and/or selling directly or indirectly the books covered in the agreement with the plaintiff.
(3.) VIDE notice dated 22nd September 2010 sent to the plaintiff through counsel, the defendant, referring to the agreement for reprint, informed the plaintiff that it had not paid the licence fee in respect of the agreements referred in para 1 of the notice, despite more than 90 days having expired from the invoice and thereby committed breach of the terms of the agreements. The plaintiff was called upon to comply with the terms of the agreements to pay the invoiced amount in respect of each of the agreements mentioned in para 1 of the notice, to the defendant, within 30 days of the receipt of the notice, failing which the rights granted to the plaintiff under the aforesaid agreements were to stand reverted to the defendant automatically without further notice and without prejudice to its rights to claim damages for the breach alleged to have been committed by it. As many as 21 titles were mentioned in para 1 of the notice. Suit CS(OS) No. 2152/2010 has been filed by the plaintiff seeking declaration that notice dated 22 nd September, 2010 is illegal and also seeking injunction restraining the defendant from revoking exclusive rights granted to the plaintiff under the Reprint Agreements mentioned in the notice. In the Written Statement the defendant has alleged that a sum of Euro 73835 was due from the plaintiff towards licence fees as claimed in the notice. It is further alleged that out of 27 agreements between the parties, 21 have already been terminated by the notice dated 22nd September 2010, whereas the remaining 06 agreements are subject matter of dispute in CS(OS) No. 973/2010.;