ARINDAM SINHA, J. - (1.) The Court :-Mr. Mookherjee, learned senior advocate continues his argument. He draws attention to paragraph 9 in the petition for averment that Master Agreement is dated 14th March, 2014 and valid till terminated. He submits, there is no denial of the agreement in paragraph 12 of affidavit-in- opposition of defendant no. 1. Defendant no. 2, in paragraph 7 of its affidavit, has also not denied the agreement. Hence, his submission that the agreement and its commencement from April, 2014 cannot be of dispute. This is in addition to record of submissions in order dated 23rd July, 2019.
(2.) He draws attention to record of submissions made on behalf of defendant no. 2 as in order dated 8th July, 2019. Relevant record is extracted below: "He reiterates provisions for assignment of copyright provided in section 18, particularly third and fourth provisos under sub-section (1) regarding authors as not having waived. He also draws attention to section 60 and submits, this suit is not one under that provision. There can be no dispute that his client's assertion of rights of its members, being authors of literacy and musical works, are grounded in the authors being such. No case of his client's assertions being groundless has been made out in the suit." He submits, his client's suit is a section 60 suit. Before elaborating on it, he refers to Cotton Corporation of India (supra) where, in paragraph 7, Supreme Court interpreted section 41(b) of Specific Relief Act, 1963 to say Court can still grant an injunction restraining a person from instituting or prosecuting any proceeding in a Court, which is subordinate to the Court, from which injunction is sought. As a necessary corollary, it would follow that the Court is precluded from granting such injunction with regard to proceeding in a Court of coordinate or superior jurisdiction. Referring to Indian Bank (supra) he places paragraph 10 in it for facts in that case and paragraph 14 for the prayer made for interim order. He submits, claims made in suit and prayers in the application are not such as can be construed to seek relief, of that which is denied or Court precluded from granting by section 41(b) .
(3.) He submits, section 60 , Copyright Act , 1957 provides for a person such as his client, when threatened with, inter alia, liability in respect of alleged infringement of copyright, can institute a declaratory suit that the alleged infringement, to which the threats relate, was not in fact an infringement of any legal right of the person making such threat. This is what plaintiff has done in its suit claiming declarations, consequent claims and reliefs. Proviso says the section will not apply if a person making such threats commences and prosecutes an action for infringement of the copyright claimed by him. He relies upon interpretation of this provision by a learned Single Judge, High Court of Delhi by judgment dated 4th February, 1993 in C.R. 100/ 1993 Super Cassette Industries Limited vs. Bathla Cassettes India (P) Ltd ., reported in (1993) 25 Delhi Reporters Judgments 410, paragraph 6. View expressed is that once a suit is filed for infringement of copyright by the person who has given the threat, the suit under section 60 becomes infructuous as the section ceases to apply in such a situation. Same view was expressed by a learned single Judge of High Court of Bombay in judgment dated 14th January, 1987 on Notice of Motion 1601 of 1986 in suit 1863 of 1986 ( Music India Limited vs. Super Cassettes Industries Pvt. Ltd. and Ors .), paragraph 5. He reiterates, claims and prayers made respectively in the plaint and application would necessarily see them as made in a section 60 suit. Therefore, on this count, it cannot be said that the suit is not maintainable or reliefs claimed cannot be granted. He submits, he will address on merits on adjourned date. List on 1st August, 2019. ;