MISHRA BANDHU KARYALAYA Vs. SHIVRATANLAL KOSHAL
LAWS(MPH)-1969-4-13
HIGH COURT OF MADHYA PRADESH
Decided on April 29,1969

Mishra Bandhu Karyalaya Appellant
VERSUS
Shivratanlal Koshal Respondents

JUDGEMENT

A.P.SEN,J. - (1.) THIS is an appeal brought by the defendant No. 1, M/s Mishrabandhu Karyalaya, Jabalpur and its partners, from the Judgment and decree of the 5th Additional District Judge, Jabalpur, dated 31st August 1964, decreeing against them, the plaintiff Sheoratanlal Koshal's claim (A) for recovery of Rupees 15,307.04 paise with interest @ 6% per annum thereon from the date of suit, i.e., from 1st January 1963 till realisation, due on account of the arrears of royalty payable to him on the sales effected upto the end of December 1959 of the book entitled 'Saral Middle School Ank Ganeet', written by his son -in -law Maniram Vishwakarma, the copyright of which had been assigned to him; (B) for rendition of account of the sales effected by them of the book in question and other allied publications thereof, as per the Hyderabad Syllabus or otherwise, during the years 1960, 61, 62 and until the date of accounting, so as to ascertain the amount of royalty which had accrued thereon and become payable to him @ 15% of the sale proceeds; (C) for interest @ 6% per annum, on the amount of royalties due each year, payable from 1st January of the following year; (D) for declaring that they dp not have any right, title and interest in the book in question, or, in any other publication thereof, as per the Hyderabad Syllabus, and that the plaintiff had the sole right to such publications; and (E) for perpetually restraining them from printing or publishing the book entitled 'Saral Middle School Ank Ganeet', as originally published, or, in any of its revised or amended forms according to the Hyderabad Syllabus or otherwise.
(2.) THE relevant facts giving rise to this appeal, are these. Under Exception 2 to S. R. 2 below Fundamental Rule 47, the Director of Public Instruction Madhya Pradesh under Memo. No. 4257/S dated 9th November 1951 (Ex. P -1), had permitted the aforesaid Maniram Vishwakarma, Assistant Master, Government Multipurpose Higher Secondary School, Jabalpur, (hereinafter referred to as the "author") to undertake the work of writing a textbook on Arithmetic (in four parts) for use in Clauses V to VIII, subject to the conditions, namely, that (i) he retained no interest in the sale of copyright, (ii) he disposed of the manuscript in lump sum not exceeding Rs. 1,500/ -, and (iii) his legitimate work did not suffer on that account. In terms of that order, the author having written such a book on Arithmetic, effected an outright sale of its copyright in favour of his father -in -law Sheoratanlal Koshal. (hereinafter referred to as the "plaintiff"), in consideration of a payment of Rs. 1,200/ - for such assignment under the terms of an agreement dated 9th March 1962 (Ex. P -4), executed between them, whereby the plaintiff became the assignee of the copyright having been conveyed all rights therein, including the rights of its publication, realisation of profits accruing therefrom and the right to royalty on all its sales, etc. The defendant No. 1, M/s. Mishrabandhu Karyalaya, Jabalpur, a firm of printers and publishers, through Basant Kumar Mishra the defendant No. 3, a member of that firm who also happened to be in management of its business along with Jagdish Prasad Mishra the defendant No. 2, entered into a publishing agreement dated 13th March 1952 (Ex. P -5) with the plaintiff. That agreement granted to the defendants a right to publish the work in question, on the following conditions; (i) the right of publication was transferred to them in lieu of their paying to the plaintiff a royalty at 15% of all their sales, (clause 1), (ii) an account of royalty had to be made annually, in the month of December each year, (clause 2), and (iii) the plaintiff was entitled to inspect the account of sales of the work in question effected by the defendants, (clause 3), (iv) the plaintiff had to get the book suitably altered to bring it in conformity with the syllabus in Arithmetic of any other State if prescribed in course of its studies, and for this he was not to be separately remunerated, (clause 4), (v) if any alteration in the syllabus was effected in the State of Madhya Pradesh, he was to have the book suitably altered by the author himself and the defendants, in that event, had to print its amended edition also on the aforesaid terms failing which he would be entitled to have it printed elsewhere (clause 6). We regret to find that the defendants who claim to be publishers of some repute have throughout betrayed in this case a lack of business integrity by not adhering to their contractual obligations for personal gain. After having acquired the sole and exclusive right of publishing the work which has become a prescribed text -book in different States and, therefore, a source of considerable profit to them, the defendants have ever since displayed a callous indifference to fulfil their part of the contract in several ways, viz., (i) in submission or rendition of yearly accounts of royalties @ 15% of total sales as required to be furnished, in the month of December of each year, and (ii) in payment of such royalty on the sales, annually, as stipulated. After persistent demands, the defendants eventually rendered on 16th April 1960 an account (i) of the royalties which had accrued due up to the end of December 1959, and (ii) of the stock -in -trade in their hands as on 26th January 1960, whereby they unequivocally acknowledged their liability to pay Rs. 15,790.46 paise. Towards this, they only paid Rs. 2,000 on 18th April 1960. still leaving a balance of Rs. 13,790.40 paise in arrears. Apart from their admitted failure in making payment of Rs. 13,790.40 paise, the defendants have also failed to render an yearly account of the royalties, on sales effected in all the following years, nor have they paid the royalties which have become due thereon, i.e., for the entire period after the year 1959. The plaintiff had by his 1st notice dated 27th February 1961 (Ex. P -27), called upon the defendants to render an account of the royalty which had become due for the year 1960, with a request for its payment, together with the arrears of royalties up -to -date within a week, failing which he threatened to take legal action for its recovery. Despite that notice, the defendants did not comply with the demand for payment of the amounts that had become due. The. plaintiff, by his 2nd notice dated 25th April 1961 (Ex. P -28), pointed out that they had persistently failed to pay the royalties accrued due during the earlier years which were in arrears. The plaintiff further complained that they had also, in breach of the agreement betweer the parties, published another text -book on the subject called 'Purva Madhyamik Ank Ganeet' (in three parts) for use in the very same classes for which they had already undertaken to publish and sell the 'Saral Middle School Ank Ganeet' and being interested in promoting the sales of that book in the market, had been acting in a manner detrimental to his interests. Therefore, by the same notice, the plaintiff revoked and terminated the publishing licence which he had created in their favour.
(3.) THE plaintiff averred that by the agreement dated 13th March 1952 (Ex. P -5), he had not assigned the copyright in the book in favour of the defendants, but had merely created a licence authorising them to print, publish and sell copies thereof which however stands revoked as a result of his notice dated 15th April 1961 (Ex. P -28), and that after the revocation of that licence, the defendants had no right to pirate that work as originally published or in any other manner as they liked, nor had they any right to appropriate to themselves the profits accruing from its sales. That profits have been earned by the defendants from such sales is an irrefutable fact which is unmistakably clear from the facts on record which speak for themselves. The book 'Saral Middle School Ank Ganeet' was first published in or about 1952 and since then there were later editions of this work. Till about the years 1957 -58, that book was in four parts; thereafter, it appeared in the Mahakoshal region in three parts, with the introduction of a unified syllabus; while it still appears in four parts in the old Vidarbha region as before. After publication of the first and subsequent editions, the book has been sold by the defendants ever since the year 1952. It appears that they have also, without reference to the plaintiff, had the book revised to bring it in conformity with the Hyderabad syllabus, and it has in that revised form been sold in the State of Andhra Pradesh. Apart from this, they further published a "1962 edition" for use in Madhya Pradesh, after having it adapted to the metric system which has now been introduced in the course of studies under the instruction of the Director of Public Instruction, Madhya Pradesh issued to the Heads of all Educational Institutions. That revised edition of the original work was brought out by the defendants without reference to the plaintiff or the author who had a right to revise it. In Schedules 'A' and 'B' annexed to the plaint, the plaintiff had particularised the large number of mistakes which have crept in the "1962 edition" published by the defendants. ;


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