Full Judgment
ORDER
SHEET GA NO.3255 OF 2013 APOT NO.541 OF 2013 CS NO.135 OF 2013 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE TV TODAY NETWORK LTD.Versus PHONOGRAPHIC PERFORMANCE LTD.BEFORE: The Hon'ble JUSTICE ASHIM KUMAR BANERJEE, ACJ.
The Hon'ble JUSTICE DEBANGSU BASAK Date : 19th November, 2013.
Mr.Ranjan Bachawat, Advocate Mr.Rudraman Bhattacharya, Advocate Mr.S.K.Bajoria, Advocate Mr.Kanakendu Chatterjee, Advocate Ms.Moumita Sarkar, Advocate for the appellant Mr.Abhrajit Mitra, Advocate Mr.Jishnu Chowdhury, Advocate Mr.Sarvopriya Mukherjee, Advocate Mr.Soumabha Ghose, Advocate for the respondent.
The Court : The Radio Stations were initially owned by the Central Government.
The Government in their wisdom gave licences to various private sectors to run Radio Stations which are commonly known as FM Radio Stations.
The dispute arose as to whether the Radio Stations would be obliged to pay royalty while broadcasting songs recorded and marketed by various music companies.
The persons connected with the music industry formed various societies who started acting as agent on their behalf to collect royalty and distribute amongst them.
The companies and/or societies started demanding royalty from the Radio Stations.
The matter came up before the Copyright Board when the Copyright Board ultimately decided, the rate of royalty payable by the Radio Stations would be dependent upon revenue earnings through advertisements.
A particular rate was fixed by the Copyright Board.
The order was challenged before the Madras High Court.
The learned single Judge, in a litigation between Super Audio Madras Private Limited versus Entertainment Network India Private Limited & Ors., prima facie upheld the order of the Copyright Board.
While doing so, the learned single Judge observed, the order of the Copyright Board would have a binding effect to all concerned including those who are not parties to the proceeding.
In short, the learned Judge observed, it is an order in rem and not in personem.
We do not express any opinion on the proposition of law so decided by His Lordship.
The present litigation would relate to a private Station having an agreement with one of such societies collecting royalties.
As per the agreement, the Radio Station was to pay royalty at a particular rate.
Clause 5.4 would provide, in case a rate is universally fixed by the Copyright Board that would prevail and the Radio Station would be at liberty to claim adjustment and/or refund.
The agreement expired by efflux of time.
The Radio Station continued to broadcast without paying any royalty for about two and half years when the society filed a suit and prayed for an order of injunction against the Radio Station from broadcasting the songs those within the control of the society.
The learned single Judge heard both the parties at the ad interim stage on June 24, 2013.
His Lordship observed, since the parties were under an agreement performing their respective obligations to continue with such arrangement, the Radio Station would have to pay at the existing rate.
Whether the Copyright Board order would have an overriding effect, would be decided at the time of final hearing.
His Lordship gave direction for filing affidavits.
The Radio Station was supposed to file within three weeks from that date that expired in the second week of July.
No affidavit has been filed.
The Radio Station, however, complied with the interim direction of His Lordship and started paying the royalty at the existing rate under the threat of the order of injunction being suffered.
We are now faced with the belated appeal filed on November 7, 2013 against the ad interim order dated June 24, 2013.
Mr.Ranjan Bachawat, learned Counsel appearing for the appellant would contend, there would be hardly any scope to file affidavit as the issue would involve purely a question of law.
He would rather invite this Court to decide the issue in this appeal.
On merit, Mr.Bachawat would contend, the agreement that was relied upon would provide Clause 5.4 that would give right to the appellant to claim adjustment.
It is not correct to say, the Radio Station did not pay any royalty for two and half yeaRs.The Radio Station would be entitled to refund that may be adjusted against future royalty at the said rate.
He contends, payments have been made under threat.
It was nothing but an attempt to blackmail the Radio Station.
Once the issue is pending before the Madras High Court and/or the Copyright Board, the learned Judge should not have permitted the society to collect the royalty at the rate fixed by them that would be too exorbitant.
Per contra, Mr.Abhrajit Mitra learned Counsel appearing for the respondent society would contend, this belated appeal must not be entertained as the appellant was not diligent enough to have the application disposed of by His Lordship.
Mr.Mitra would contend, the appellant never informed the Court, they would not file any affidavit.
Had it been known to the respondent, they could have insisted on early disposal of the application.
We have considered the rival contentions.
Once the parties invite the learned single Judge to decide the issue on affidavits, we feel it prudent to wait till the matter is disposed of by His Lordship.
The court of appeal, in our view, should be slow in interfering with an ad interim order of injunction unless it finds, travesty of justice would be caused in case of non-interference.
We do not think, such a situation has arisen here.
We, thus, do not wish to interfere with the judgment and order impugned.
Mr.Bachawat has made it clear, the appellant would not file any affidavit.
We earnestly request the learned Judge to decide the issue once for all by disposing of the application at an early date.
The appeal and application are disposed of, after treating the same as on day’s list, without any order as to costs.
(ASHIM KUMAR BANERJEE, ACJ.) (DEBANGSU BASAK, J.) sd/