1. Petitioner-M/s. Lahari Recording Company Private Limited, Bangalore, is defendant in O.S. No. 8125 of 1998, and respondent-M/s. Sourabh Marketing and Agencies Private Limited is the plaintiff therein. They are hereinafter referred according to their position in the said suit which is pending on the file of the Trial Court.
2. The Trial Court's order dated 1-9-1999 made in O.S. No. 8125 of 1998 rejecting defendant's application i.e., I.A. No. I, filed under Order 7, Rule 11(d) read with Section 151 of the Code of Civil Procedure ("CPC" in short) with costs is called in question in this revision. The said application was filed praying to dismiss the plaintiffs suit as its institution in the Civil Court and the jurisdiction of the Court below to try the same is barred by the provisions of the Copyright Act, 1957 ("the Act" in short).
2-A. Order VII, Rule 11 of the CPC contemplates rejection of plaint on certain grounds. The relevant clause (d) of Order VII, Rule 11 reads:
"11. Rejection of plaint.--The plaint shall be rejected in following cases:
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) Where the suit appears from the statement in the plaint to be barred by any law".
3. Adverting to the plaintiff's case in the plaint, both plaintiff and defendant are the companies registered under the Companies Act. The said suit against defendant is filed for the following reliefs (vide paragraph 20 in the plaint):
"Wherefore, the plaintiff prays that this Hon'ble Court be pleased to pass a judgment and decree for:
(a) specific performance of the contract dated 27-8-1995 and 20-10-1995 by calling upon the defendant to perform his part of the contract and take delivery of 79,250 Nos. (Seventy-nine thousand two hundred and fifty) recorded cassettes;
(b) direct the defendant to pay sum of Rs. 1,05,22,300.00 (Rupees one crore five lakhs twenty-two thousand three hundred only) to the plaintiff;
(c) award payment of future interest @ 18% on the said sum from the date of filing of the suit till realisation;
(d) award costs of the suit;
(e) award compensatory costs under Section 35-A of the CPC;
(f) grant such other relief or consequential reliefs as the Court deems fit in the circumstances of the case in the interest of justice and equity".
4.1 It is averred in the plaint that plaintiff is a company engaged in the business of dealing in copyright and distribution of audio cassettes of film and non-film titles, in addition to other business. The ownership of the copyright over the film and non-film titles fully described in the plaint Schedules I and II was acquired by it from the producers and owners thereof. When the defendant expressed its desire for assignment of universal rights, title and interest of certain film and non-film titles, the plaintiff offered it to assign the same for agreeable consideration. Accordingly, the defendant agreed to purchase the universal rights, title and interest of certain film and non-film titles shown in plaint Schedules I and II for a total consideration of Rs. 99,00,000/- and the sale deed at document No. 1 came to be voluntarily executed between the parties to this effect, whereby the ownership of the copyright over the film and non-film titles of all the items mentioned in Schedules I and II was fully assigned in favour of defendant for the said consideration. This apart, there were certain numbers of unsold pre-recorded cassettes of the said film and non-film titles which were in plaintiffs possession and which the defendant agreed to buy at the rate of Rs. 10/- per cassette and that this part of the sale agreement was also incorporated in document No. 1. The said cassettes were verified by the defendant who found that there were 1,23,750 such cassettes available in plaintiffs godown. The total value of these cassettes amounted to Rs. 12,37,500/- at the agreed rate of Rs. 10/- each. Thus, under the sate agreement at document No. 1, the defendant was liable to pay the consideration of Rs. 99,00,000/- for the assignment of the universal rights of the said film and non-film titles, and also a further sum of Rs. 12,37,500/- for the said cassettes. Under the said agreement, an amount of Rs. 25,00,000/- was paid by defendant to the plaintiff through Demand Drafts and cheques towards part consideration for assignment of the said copyrights and the balance of Rs. 74,00,000/- was agreed to be paid by it in instalments in the manner indicated at paragraph 9 of the plaint, the last of which was required to be paid on 12-11-1995. This manner of payment was also the term of sale contract at document No. 1.
4.2 Besides, it was also the term of the suit contract that the plaintiff was required to deliver the original master tapes, master spools, date stated in Annexure-I thereof to the defendant after receipt of further part of sale consideration i.e., Rs. 25,00,000/-, which was to be paid by it on 2-10-1995. When plaintiff presented the defendant's cheque No. 598480, dated 2-10-1995 for this amount drawn on Karnataka Bank, Bangalore, it was dishonoured with endorsement "Payment Stopped". When contacted, the plaintiff was told by defendant not to re-present the said cheque and its other cheques as well that were issued in respect of the remaining amount towards consideration of the assignment of the copyrights, as there was insufficient fund in the credit of defendant's account.
4.3 The further case of the plaintiff was that as regards the said price of the said cassettes, the defendant failed to pay the same and take delivery thereof from it in terms of the said sale agreement.
4.4 Thereafter, it is averred in the plaint that, at the request and instance of defendant, the mode of repayment of the said amount and the delivery of the said cassettes was rescheduled under supplementary agreement between the parties which was reached under 'rescheduling agreement dated 20-10-1995' produced as document No. 2. Under this agreement, the plaintiff was required to deliver the said original master spools and date to the defendant against payment of Rs. 15,00,0007-through demand draft. That amount of Rs. 15,00,000/- was paid by the defendant and, therefore, the original rights over the said spools and master tapes were formally transferred to defendant by the plaintiff in due performance of its part of the contract by physically delivering the same to the former on 22-10-1995, which fact was acknowledged by defendant under document No. 3. Thereafter, the defendant failed to make payment of the balance of sale consideration in terms of the said agreement.
4.5 The further plaint allegations are that as regards the sale of the said 1,23,750 cassettes, the defendant took delivery of only 44,500 cassettes from plaintiff on 11-3-1996 under the former's acknowledgement at document No. 4, and that he failed to take delivery of the remaining 79,250 cassettes in spite of repeated calls and requests of plaintiff. In fact, as per the terms of the rescheduling agreement dated 20-10-1995 at document No. 2, the defendant was required to take delivery of the said 79,250 cassettes by 1-12-1995. The refusal on defendant's part to take delivery of these cassettes by 1-12-1995 or even thereafter was in clear breach of the said contracts. These cassettes are of no use to the plaintiff as the universal rights of the sale with respect thereto are already assigned to defendant and any attempt at selling them by the plaintiff to any other party would be in contravention of the Copyright Act which would expose the plaintiff to legal action by the defendant. The defendant is, therefore, still liable to pay the plaintiff the amount of Rs. 7,92,500/- towards the agreed price thereof and he has committed further breach of the contract by not paying the same despite legal notice dated 14-9-1998 and repeated demands.
5. Hence, the plaintiff's suit for specific performance of the said contracts dated 27-8-1995 and 20-10-1995 and for recovery of the total amount of Rs. 1,05,22,300/- together with interest at 18% per annum and for other ancillary reliefs.
6. The defendant, on appearance in the suit proceeding before the Court below, instead of filing its written statement, chose to file the said application under Order 7, Rule ll(d) of the CPC praying to reject the plaint on the ground that the said suit was barred under the provisions of the Act. Defendant has also stated in the accompanying affidavit that:
"(2)..... That the said agreement executed between the plaintiff (as assignor) and the defendant (as assignee) relate to certain original audio rights of films and non-films title and some Basic Devotional Programme, mentioned in Annexures-I and II to the said deed of assignment".
Further, it is averred in that affidavit that the dispute constituting the cause of action for the suit, if any, is one arising with respect to assignment of copyright under the deed of assignment dated 27-8-1995 and 20-10-1995. Therefore, it is covered by Section 19-A(2) of the Copyright Act which confers jurisdiction on the Copyright Board for determination of such disputes and that the Trial Court's jurisdiction to entertain the suit is impliedly barred by virtue thereof.
7. A rejoinder to defendant's I.A. No. I was also filed by the plaintiff contending, inter alia, that the dispute raised in the suit is not related to assignment of rights as contemplated an the Copyright Act and also that as per the terms of the contract, the plaintiff and defendant had elected to submit themselves to the jurisdiction of the Trial Court.
8. The Trial Court, by its detailed order impugned, has found the plaintiffs contention in respect of existence of its jurisdiction is entitled to acceptance. Accordingly, defendant's I.A. No. I has been rejected by it with costs of Rs. 1,000/-.
9. The learned Counsel representing the petitioner-defendant, Sri Rajesh Chander Kumar, strenuously argued assailing the legality and correctness of the impugned order, mainly drawing support from an observation therein of the learned Trial Judge that:
"10. .... So far concerned to recovery of royalty or the amount, it appears that the suit is barred by Section 19-A(2) of the Copyright Act. .... but in respect of specific performance of the agreement, there is no bar in the Copyright Act to maintain a suit......".
The contention of the learned Counsel was that what was sought to be achieved by the plaintiff in seeking the relief of specific performance was recovery of the said amount which was in the nature of royalty and when once the Trial Court was of the view that suit for recovery thereof was barred by Section 19-A(2) of the Act, it should have allowed the application holding that its jurisdiction to try the suit is barred by this provision i.e., Section 19-A(2). Furthermore, in his attempt to substantiate his case, the attention of the Court was also invited to Section 74 of the Act contending that this provision confers on the Copyright Board the same powers which are conferred on a Civil Court by the Code of Civil Procedure, 1908 ("CPC" for short), for trial of a suit, and also that by Section 75 of the Act, any order for payment of money passed by the Copyright Board is made executable as a decree of a Civil Court in the same manner as prescribed in the CPC. It was, therefore, his argument that these provisions viz., Sections 19-A(2), 74 and 75 of the Act impliedly oust and bar the jurisdiction of the Civil Court to entertain and try the suit for decision of any dispute arising out of the assignment of copyright under the Act. In support of his contention, reliance was placed by him on a decision of the Supreme Court in the case of M/s. East India Corporation Limited v Shree Meenakshi Mills Limited, as also on a decision of the High Court of Andhra Pradesh in the case of Kalepu Pala Subrahmanyam v Tiguti Venkata Peddiraju.
10. Per contra, Smt. Pramila Nesargi, learned Counsel for respondent-plaintiff, referring to the provisions of the Act, argued in support of the impugned order.
11. Therefore, for effective disposal of this revision, the material point which this Court is called upon to decide is:
"Whether or not the finding of the Court below in its impugned order that it has the jurisdiction to try the present suit of the plaintiff and that the same is not ousted by Section 19-A(2) or any other provision of the copyright Act, 1957, is legally correct?"
12. In the case of M/s. East India Corporation Limited, supra, the Supreme Court dealt with the question of bar of jurisdiction of a Civil Court to try the suit filed by the landlord for recovery of possession of the tenanted premises from his tenant, in the light of the relevant provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (3 of 1960) (in short "the Act of 1960"). In that case, the appellant before the Supreme Court was the defendant who was a tenant of the suit building. The suit was filed for delivery of possession of the building on the ground of arrears of rent, alleging that the defendant had wilfully defaulted in payment of agreed rent of Rs. 900/- per month for a long period despite repeated demands. In the Trial Court, the plaintiffs case therein was denied and contested by the defendant. The suit was decreed and the Trial Court's decree was affirmed in appeal by the first Appellate Court as well as by the High Court, which accepted the landlord's case and rejected the defendant's defence. Then, the judgment and decree of the lower Courts was challenged by the defendant in appeal before the Supreme Court. At the time of filing of the suit and at the time of grant of leave to appeal by the Supreme Court, the building in question was exempt by virtue of Section 30(ii) of the Act of 1960 since the rent of Rs. 900/- p.m. payable with respect to the suit building was exceeding the prescribed limit of rent for a residential building so as to bring it within the purview of the Act. However, subsequently, when the vires of clause (ii) of Section 30 was challenged before the Supreme Court in the case of Rattan Arya v State of Tamil Nadu, that provision was declared unconstitutional by the Supreme Court as being violative of Article 14 of the Constitution. Therefore, it was contended before the Supreme Court for appellant in the case of M/s. East India Corporation Limited, supra, that as a result of the law declared by the Supreme Court in the case of Rattan Arya, supra, as striking down sub-clause (ii) of Section 30 of the Act of 1960, it has to be read as this provision was never existed in the statute and was not brought into force, and consequently, all residential buildings, which were older than five years (see clause (i) of Section 30) and let out for whatever rent, came within the ambit of the Act and as such the Trial Court which was a Civil Court was not competent to try the suit. In that view of the matter, it was further argued for appellant, that irrespective of the merits of the find- ings of the Trial Court, its decree in question passed without jurisdiction was null and void.
13. Accepting the above contention raised for appellant in M/s. East India Corporation Limited's case, supra, at paragraph 6 of its judgment, the Supreme Court has said:
"6. Section 10 of the Act, as seen above, prohibits eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that section or Sections 14 to 16. These provisions as well as the other provisions of the Act are a self-contained Code, regulating the relationship of parties, creating special rights and liabilities, and, providing for determination of such rights and liabilities by Tribunals constituted under the statute and whose orders are endowed with finality. The remedies provided by the statute in such matters are adequate and complete. Although the statute contains no express bar of jurisdiction of the Civil Court, except for eviction of tenants "in execution or otherwise", the provisions of the statute are clear and complete in regard to the finality of the orders passed by the special Tribunals set up under it, and their competence to administer the same remedy as the Civil Courts render in civil suits. Such Tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure, the clear and explicit in-tendment of the legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the Tribunals constituted under it. Although the jurisdiction of the Civil Court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and this Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute. ........".
Further at paragraph 7, it has stated:
"7. Judged by this test, the jurisdiction of the Civil Court in respect of eviction of tenants is barred except to the extent and subject to the conditions prescribed under Section 10..... .".
Discussing the scope of explanation provided by Section 10 excluding Tribunal's jurisdiction, the Supreme Court observed that the same was not available to facts of that case, and finally it proceeded to hold that as a consequence of declaring invalid the exclusionary provision in sub-clause (ii) of Section 30 of the Act in Rattan Arya's case, supra, the Civil Court acted without jurisdiction and, therefore, the eviction decree in question passed by it was a nullity.
14. As held by the Supreme Court in the case of M/s. East India Corporation Limited, supra, the question if the Civil Court in the instant case had or had no jurisdiction to entertain the present suit in view of Section 19-A of the Copyright Act, is required to be examined in the light of the aforequoted test laid down by it. In the case of Shree Raja Kandregula Srinivasa Jagannadharao Panthulu Bahadur Guru (dead) by L.Rs v State of Andhra Pradesh , the legal position summarised by the Supreme Court in the case of Dhulabhai v State of Madhya Pradesh, where certain elaborate tests, inclusive of those which are stated in the case of M/s. East India Corporation Limited, supra, had been reiterated by it. One of those tests is:
"(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court, Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not".
It was further laid down therein that exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions set down apply. This ruling is followed by a Division Bench of this Court in the case of Karnataka Bank Limited v Narayana Bhatta . By way of fortification of the aforestated tests, Justice M.N. Venkatachaliah, as he then was, speaking for the Bench, expounded the proposition thus:
"12. The legislative technique of exclusion of jurisdiction of Courts follows the familiar pattern. Legislature has two favourite techniques to exclude, or reduce, interference by Courts. One is the indirect method of conferring powers couched in wide and subjective language so that even if the Courts have jurisdiction, there is not much scope for interference. The direct method is by the enacting express exclusion of Civil Court's jurisdiction. But, the Courts, it is said, are not to be disarmed so easily.
The present ..... What is excluded from the Civil Court's purview must necessarily correspond to what falls within the Tribunal's exclusive jurisdiction. But Courts have always the jurisdiction to examine whether what purports to be a statutory decision, to which finality is statutorily intended, is after all no decision at all and is a nullity. No amount of legislative fortifications of the authority and finality of Tribunal's decision can protect a nullity. The finality of a statutory decision or adjudication can also be unsettled in a Civil Court if the Tribunal had not followed the fundamental principles of judicial procedure or if the decision is otherwise vitiated by factors which in law render the decision infirm".
Further at paragraph 13 of the judgment, this Court proceeded to make the significant observation thus:
"13. .... .To ascertain the extent of the bar to Courts' jurisdiction, even where the bar is an express one, an examination of the scheme of the Act becomes necessary. The question as to the adequacy and sufficiency of the remedies provided is relevant though not conclusive. Lord Thankerton said in Secretary of State v Mask and Company, "It is settled law that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred; but that such exclusion must either be explicitly expressed or clearly implied. If a right not pre-existent in common law is, for the first time, created by the statute and a statutory remedy provided therefor, uno-flatu, then, with the imparting of a finality to the proceeding envisaged for the enforcement of that right, the Civil Courts' jurisdiction stands impliedly barred. In the case, however, of an express bar of jurisdiction of Civil Courts where the right is not created by, but exists independently of, the statute, the adequacy and sufficiency of the statutory remedy becomes a relevant consid-eration.....".
15. Therefore, what becomes clear from the aforestated tests laid down by the Supreme Court is that to see for enforcement of any right or liability, if the Civil Court's jurisdiction is ousted by the provisions of a particular Act, the examination of the scheme of that Act becomes necessary. So, coming to the Copyright Act, the object of the Act manifested by its preamble is to account and consolidate the law relating to copyright. Earlier, the law on copyright was governed by the Indian Copyright Act, 1914, and the Copyright Act of 1911 passed by the Parliament of the United Kingdom as modified in its application to India by the Indian Copyright Act, 1914, both of which Acts are repealed by the present Act of 1957. The Act comprises in all 79 Sections spread over subjectwise under 15 chapters. Sections 1 to 6 of Chapter I provides for preliminaries such as title, extent, commencement of the Act, definitions of various terms used in the Act, viz., Section 6 in particular, providing for decision of certain question stated therein by the "Copyright Board". Sections 9 to 12 of Chapter II deal with establishment of Copyright Office and the Copyright Board, and the powers and procedures of Copyright Board. By Sections 13 to 16 of Chapter III, the meaning of and the rights relating to "Copyright" are dealt with. Under Chapter IV, the "First owner of copyright", the "Assignment of copyright" and its mode, and other related matters and the resolution of the dispute pertaining thereto are dealt with. Sections 22 to 29 of Chapter V provide for the "term" (duration) of the copyright in various "works". Under Chapter VI, the right of the owners of copyright to grant licences with respect thereto, the power of the Copyright Board to give directions in regard to licences in respect of particular copyrights; and termination of licences issued under this chapter are the concern of Sections 30 to 32-B. Sections 33 to 36-A of Chapter VII relate to Copyright Societies, registration thereof and the administration of rights of owner by copyright society, and the matters concerning thereto. The rights of broadcasting organisation and all performers are covered by Sections 37 to 39-A of Chapter VIII. Chapter IX relating to "International Copyright", is about the empowerment of Central Government to extend application or any of the provisions of the Act to foreign works and to regulate their rights with respect thereto. The subject of registration of copyright is taken care of by Sections 44 to 50-A of Chapter X. The important topic of "infringement of copyright" is covered by Sections 51 to 53-A of Chapter XI. The most material aspect of "civil remedies", for the purpose of this case, is dealt with under Sections 54 to 62 of Chapter XII. Chapter XIII deals with offences under the Act. The provision for appeal against certain orders of Magistrate, of the orders of the Registrar of Copyrights and Copyright Board, as also regarding procedure for appeals are provided by Sections 71 to 73 of Chapter XIV. Sections 74 to 79 of Chapter XV contain the provisions relating to miscellaneous matters.
16. It could be seen that Chapters III and IV of the Act contain the material provisions under Sections 13 to 21 which define the term "Copyright" and create this substantial right with the author and/or owner thereof. The other provisions in other Chapters of the Act create machinery to regulate exercise of copyright by a person and the matters incidental thereto.
17. The term "work", for the purpose of the Act, is defined by Section 2(y) as any of the following works:
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a sound recording.
Section 14 defines the meaning of "copyright" as exclusive right subject to the provisions of the Act to do or authorise the doing any of the acts enumerated in clauses (a) to (e) thereof in respect of "work" or any substantial part thereof; whereas Section 13(1) declares that subject to provisions of this section and other provisions of the Act, copyright shall subsist throughout India in the following classes of works, that is to say.-
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording.
Section 16 states that, "No person shall be entitled to copyright of any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence".
18. Section 9 of Chapter II contemplates establishment of the "Copyright Office" for the purposes of the Act placing it under the immediate control of the "Registrar of Copyrights", who shall act under the superintendence and directions of the Central Government. Section 10 of this Chapter enjoins the appointment of Registrar of Copyright by the Central Government. It is Section 11 which envisages establishment of "Copyright Board" by the Central Government, consisting of a Chairman and not less than two or more than fourteen other members, who shall hold the office for the prescribed term and subject to prescribed conditions. Sub-section (4) states that the Registrar of Copyrights shall be the Secretary of the Copyright Board, who shall perform such functions as may be prescribed. Section 12, though titled as "Powers and procedure of Copyright Board", it only provides for the constitution of its Benches, manner of its sittings, and procedure for its enquiries. It does not specify the specific powers of the Board concerning its jurisdiction for resolution of disputes under the Act. Sub-section (7) of Section 13, however, states that the Copyright Board shall be deemed to be a Civil Court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973, and all proceedings before it shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code. Since the Board is declared to be a Civil Court for this limited purpose, it cannot be held as a Civil Court proper for the purposes of adjudication of disputes under the Act.
19. Section 18 which occurs in Chapter VII dealing with ownership of copyright and the rights of owner, confers a right on the owner of the copyright in existing work or the prospective owners of the copyright in future work to assign to any person the copyright either fully or partially and either generally or subject to limitation and either for the whole of the copyright or in part thereof. Section 19 relating to mode of assignment lays down that no assigning of the copyright in any work shall be valid unless it is in writing, signed by the assignor or by his duly authorised agent. The provision of the material Section 19-A which provides for resolution of disputes with respect to assigning of copyright are as reproduced below:
"19-A. Disputes with respect to assignment of copyright.--(1) If an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable to any act or omission of the assignor, then, the Copyright Board may, on receipt of a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke such assignment.
(2) If any dispute arises with respect to the assignment of any copyright the Copyright Board may, on receipt of a complaint from the aggrieved party and after holding such inquiry as it considers necessary, pass such order as it may deem fit including an order for the recovery of any royalty payable:
Provided that the Copyright Board shall not pass any order under this sub-section to revoke the assignment unless it is satisfied that the terms of assignment are harsh to the assignor in case the assignor is also the author:
Provided further that no order of revocation of assignment under this sub-section, shall be made within a period of five years from the date of such assignment".
20. It is Section 19-A which is the main plank of argument of petitioner's learned Counsel who contended that it exclusively vests the Copyright Board with the jurisdiction to enquire into and adjudicate the dispute of the nature between the parties and, therefore, by implication, this provision supplants the jurisdiction of the regular Civil Court from entertaining the respondent's suit and proceeding with its trial. This contention was sought to be substantiated by him by the provisions of Sections 72, 74 and 75 of the Act.
21. Section 72 provides the remedy of appeal against orders of Registrar of Copyright and Copyright Board. The relevant sub-section (2) thereof is in the following terms:
"72. Appeals against orders of Registrar of Copyrights and Copyright Board.--(1) xx xx xx
(2) Any person aggrieved by any final decision or order of the Copyright Board, not being. ......within three months from the date of such decision or order, appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works for gain:
Provided that no such appeal shall tie against a decision of the Copyright Board under Section 6".
By Section 74, the Registrar of Copyrights and Copyright Board are conferred with certain powers that are exercised by a Civil Court when trying a suit under the Code of Civil Procedure, in respect of the following matters, viz.,
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) requisitioning any public record or copy thereof from any Court or office;
(f) any other matter which may be prescribed.
Section 75 states that any order for payment of money passed under the . Act by the Registrar of Copyrights and Copyright Board or by the High Court in appeal against an order of the Copyright Board, shall, on a certificate issued by the Registrar of Copyrights, the Copyright Board or the Registrar of the High Court, as the case may be, will be deemed to be a decree of the Civil Court and shall be executable in the same manner as a decree of such Court.
22. It is an undisputed fact, there is no express provision under the Act which bars the Civil Court's jurisdiction from adjudicating the disputes, whatever, arising thereunder.
23. On a careful examination of the aforestated provisions and the other relevant provisions as well of the Act, I find sufficient legal force and weight in the contention of Smt. Pramila Nesargi. Section 19-A does not make the decision of the Copyright Board on the disputes arising with respect to the assigning of any copyright as final; whereas we find that its decision on a question stipulated in Section 6 of the Act is made final and proviso to sub-section (2) of Section 72 states that no appeal lies from the order of the Copyright Board made under this section. Section 6 runs:
"6. Certain disputes to be decided by Copyright Board.--If any question arises-
(a) whether a work has been published or as to the date on which a work was published for the purposes of Chapter V, or
(b) whether the term of copyright for any work is shorter in any other country than that provided in respect of that work under this Act,
it shall be referred to the Copyright Board constituted under Section 11 whose decision thereon shall be final:
Section 3 defines the meaning of "publication" for the purposes of the Act stating that it means making available to the public by issue of copies or by communicating the work to the public. Section 4 spells out as to "when work deemed to be published or performed in public", and Section 5 stipulates "when work deemed to be first published in India". So, the provisions of Sections 3 to 6 make it clear that the question of controversy, if any, referred to in Section 6 pertains to the "term" i.e., "duration" of a copyright in respect of a published work within the confines of Chapter V which deals with the terms of copyright in various works, and that these terms are created by this statute. Since the question stipulated in Section 6 merely relates to the term of copyright in a published work within the meaning of Sections 3 to 5, the legislature thought it proper to invest the Copyright Board exclusively with the powers to adjudicate such questions and make its decision thereon final by imparting the further seal of finality to such decisions expressly barring the remedy of appeal therefrom by sub-section (2) of Section 72. Considering the nature of the questions to be decided by the Board under Section 6 and the machinery provided for its decision, it could be reasonably stated and held that the Board has the exclusive jurisdiction to decide such questions and the Civil Courts will have no jurisdiction to decide them.
24. There are few other provisions under the Act which declares the Copyright Board's decision as final on certain other matters. For instance, under Section 53-A occurring in Chapter XI, the Copyright Board is conferred with the power to determine the share-of the author in the price of the work stated therein in the case its resale for a price exceeding the prescribed price, i.e., Rupees ten thousand, and by sub-section (2) thereof, the Board's decision in regard to the said share is made final. Sub-section (3) of Section 53-A further enjoins that.-
"(3) If any dispute arises regarding the right conferred by this section, it shall be referred to the Copyright Board whose decision shall be final".
The word "shall" in this proviso makes it imperative for the aggrieved party that the dispute with respect to the right conferred by Section 53-A must be referred to the Copyright Board alone and its decision thereon shall be final. Considering the fact that the right of the author of a particular work to claim a share of royalty in the resale price thereof in certain circumstance is created by this statute; that the provisions under Section 74 confer on the Board the powers exercisable by a Civil Court relating to trial of a suit proceeding under Code of Civil Procedure, enumerated in clauses (a) to (f) thereof, for the purpose of ensuring a fair procedure for its enquiries in relation to such disputes; as also that any order made by the Board under the Act for payment of any money by any person to the aggrieved party as a result of its enquiry is declared to be a decree of a Civil Court executable in the manner as a decree of such Court, and that any decision taken by the Board in respect of a dispute under Section 53-A is declared to be a final decision providing remedy of appeal against it under Section 72, it can be legitimately inferred and held that the authority of the Copyright Board conferred by Section 53-A to decide the disputes stipulated therein is an exclusive authority and that by necessary implication, it takes away the jurisdiction of a Civil Court to determine and decide such disputes. The remedy provided by Section 53-A to the authors of a particular work to a share in the resale price of his work being adequate, such an inference needs to be drawn in view of the settled law in this regard laid down in the case of Union of India v A.V. Narasimhalu.
25. But, so far as the dispute falling within the ambit of Section 19-A, we do not find any such mandate that the aggrieved party shall refer the dispute to the Copyright Board alone and that the decision of the Copyright Board thereon is final. At the cost of repetition, it has to be stated that under Section 72, a remedy of appeal to the High Court by an aggrieved person from an order of the Copyright Board lies only when that order is made final under the Act. Since any order passed by the Copyright Board under Section 19-A is not made final, the aggrieved party cannot approach the High Court in appeal invoking the aid of Section 72. Besides, as indicated elsewhere hereinabove, the "copyright" as defined in Section 14 is a statutory right which is a creation of the statute (vide Section 16). Certain relevant provisions of the Act, as pointed out above, enjoin that certain disputes concerning copyright shall be referred to the Copyright Board alone and shall be decided by it alone, while the other disputes of the nature falling within the purview of Section 19-A need not necessarily be referred to the Copyright Board, since this provision gives option to the aggrieved party either to approach the Board or to approach any other Competent Court seeking redressal of his grievance. We find this legal position made clear by other related provisions of the Act, more particularly, the provisions under Chapter XII, which deals with civil remedies. In this context, it has to be noted that the purpose of sub-section (7) of Section 11 declaring the Copyright Board as deemed to be a Civil Court is not a general declaration in its overall functioning under the statute, but the same is limited for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973, relating to the procedural aspect of its enquiry proceeding and nothing more. In the present case, as has been indicated above at paragraph 3 of the judgment, the plaintiffs suit against defendant is for recovery of certain amount as payable to him under the suit agreements, as by way of specific performance of the said agreements. It is not in dispute that the assignment of the copyright with respect to the "work" stated under the agreements was validly complete, being in accordance with Section 19 of the Act. In other words, these agreements are nothing but the lawful contracts within the meaning of Section 10 of the Indian Contract Act, 1872, and, therefore, in essence, the plaintiffs suit against defendant is instituted for enforcement of the contractual rights and obligations flowing therefrom. In that view of the matter, it cannot be stated that these are the rights and liabilities created for the first time under the Copyright Act. On the other hand, they are plainly the subject of the Indian Contract Act.
26. Nextly, what has to be seen is, whether a complete machinery is provided by the Act for effective adjudication of such rights thereby providing sufficient and adequate remedy to the aggrieved person. It was so contended emphatically by the learned Counsel for the petitioner-defendant and the same was vehemently opposed by respondent-plaintiffs Counsel. No doubt, sub-section (2) of Section 19-A empowers the Board to pass such order as it deems fit including an order passed for the recovery of royalty payable in respect of any dispute arising from an assignment of any copyright. The material question which calls for determination is, whether this power of the Board confers an exclusive jurisdiction on it for determination of such disputes divesting the Civil Courts from their plenary jurisdiction to do so. In this respect, one thing is quite clear that there is no express provision in the Act which bars the jurisdiction of Civil Court for trial and determination of a dispute under the Act relating to copyright in a subsisting work or any other dispute concerning any collateral matter. Therefore, what is required to be seen is whether the jurisdiction of a Civil Court is impliedly barred by virtue of Section 19-A of the Act. In Union of India's case, supra, the Supreme Court has said:
"Where a statute re-enacts a right or liability existing at common law, and the statute provides a special form of remedy, exclusion of the jurisdiction of the Civil Court to grant relief in the absence of an express provision, will not be readily inferred. Where, however, a statute creates a new right or liability and it provides complete machinery for obtaining redress against erroneous exercise of authority, jurisdiction of the Civil Court to grant relief is barred".
27. The copyright in a subsisting work created by the statute is the core object of the Act, and the primary concern of the Act is to provide protection to the owner of the copyright from infringement thereof. As to what constitutes an infringement of copyright has been spelt out in sufficient detail under Chapter XI of the Act. Chapter XII provides for civil remedies to the owner of the copyright against a person who commits infringement of that right. Section 62 occurring in this Chapter XII specifically reserves the jurisdiction of the Civil Court for determination of disputes arising from the infringement of copyright in any work or the infringement of any other right conferred by the Act, stating that every suit or other civil proceeding seeking any appropriate relief in that behalf shall be instituted in the District Court having jurisdiction. Sub-section (2) thereof states:
"(2). .... a "District Court having jurisdiction".....includes a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding, .....actually and voluntarily resides or carries on business or personally works for gain".
The provisions of Chapter XII thus make it clear that the jurisdiction to try and decide the disputes pertaining to infringement of copyright re mains exclusively vested with the Civil Court and that the same is kept beyond the pale of the powers of the Copyright Board under the Act. That the Copyright Board is not conferred with the power to deal with the dispute pertaining to the core object of the Act as also that the ordinary jurisdiction of a Civil Court to try any other dispute under the Act is not barred by any express provision thereunder is a clear and strong circumstance indicating that the Board's jurisdiction under Sec tion 19-A to decide the disputes coming within its purview cannot be and is not its exclusionary jurisdiction, but it is a concurrent jurisdiction. I am fortified in this view by the legal proposition to this effect enunciated by Supreme Court in the case of Raja Kumar Bhargava (dead) by L.Rs v Union of India .
28. In the case in hand, the assignment of copyright under the suit sale agreements is not specifically denied by the defendant, and that the same is not in dispute as borne out by the defendant's affidavit, the material portion whereof is excerpted at paragraph 6 above. The plaintiffs suit claim does not relate to any infringement of that copyright. But, the plain case of the plaintiff, as could be ascertained from the plaint averments, is essentially to enforce the contractual rights relating to payment of the balance of the consideration and the price of the sold cassettes, against defendant and to oblige him to perform his part of the obligations under the suit sale contracts. Therefore, the plaintiff's right to claim the suit relief arising from the suit contract is not a right created by the Act and that the same is a pre-existing contractual right which was enforceable under the general law of contracts. So, the Civil Court's jurisdiction to determine such right cannot be held excluded by Section 19-A of the Act, more so, when the parties have, by an express term of the suit sale deed dated 27-8-1995, agreed to submit themselves to the jurisdiction of the Court below, which term reads:
"In the event of any dispute, the Courts at Bangalore City alone shall have exclusive jurisdiction".
29. The decision of this Court in the case of K.A. Venugopala Setty v Dr. Suryakantha U. Kamath, on which reliance has been placed by the learned Counsel for petitioner-defendant, is not a relevant authority to support his case in regard to Civil Court's jurisdiction, since the question of bar of jurisdiction of the Civil Court by virtue of Section 19-A of the Act was not the question before it for consideration, in that, the main question that arose for its consideration was whether an oral agreement of assignment of copyright is valid and permissible in law. So also the decision of the Andhra Pradesh High Court in the case of Kalepu Pala Subrahmanyam, supra, is of little help to the petitioner's case, _on which reliance was placed by the petitioner's Counsel for the proposition that rejection of plaint under Order VII, Rule 11 should be in its entirety on any of the grounds stated therein, even when a portion of the plaint alone is found liable to rejection, since partial rejection of a plaint is not permissible under this provision. This proposition was pressed into service for the petitioner in view of the observation of the Trial Court made in paragraph 10 of its impugned order that the plaintiffs claim to the recovery of money being the royalty, the suit for recovery of the same appears to be barred by Section 19-A(2) of the Act, whereas, there is no such bar under the Act for the plaintiff's claim to the specific performance of the suit agreements. In view of my discussion made on relevant legal aspects and the conclusions arrived at hereinabove, the said observation of the Court below is wholly erroneous in law. Besides its observation that the amount claimed by the plaintiff is the "royalty within the meaning of the Act, is also incorrect and patent legal error. The plaint read as a whole makes it abundantly clear, in view of my conclusions arrived at herein, that no portion of it, whatever is liable to be rejected.
30. From my above discussion of all relevant aspects of the matter, the inevitable answer to the question under consideration would be that the jurisdiction of the Civil Court to try the plaintiff's suit is not barred by Section 19-A and that the Copyright Board's power to hold an enquiry in regard to such claims by virtue of sub-section (2) of Section 19-A could be merely a concurrent jurisdiction, the availment of which is left to the option of the aggrieved party. Therefore, the Trial Court has rightly arrived at its impugned finding on this point. As such, the revision is devoid of merit.
31. Hence, for the reasons aforesaid, the impugned order is upheld and the revision is dismissed.
The parties to bear their own costs.