Order 1

Order Details: Notice of Motion
Pdf Text: NM 2261/18 in SU 1601/18 .. 1 .. Order
CNR No. MHCC010072872018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2261 of 2018
IN
SUIT NO. 1601 of 2018
Canvas Theatres ...Plaintiff
V/s.
Manohar Pawar & Ors. ...Defendants
Appearances:
Learned Adv. Mr. Pradip Gharat for plaintiffs.
Learned Adv. Mr. Kishor Sawant for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 4th March, 2019.
: ORAL ORDER :
1. The plaintiff has taken out this Notice of Motion and has
requested to grant interim relief pending the hearing and disposal of the
suit. The interim relief is sought for temporary injunction restraining
the defendants from conducting, organising or producing shows of
Marathi play 'Hindu Code Bill' on 16th June,2018 and thereafter. The
plaintiff has also requested to grant temporary injunction restraining
the defendants from causing obstruction to the plaintiff in conducting,
organising or producing the remaining 23 shows of the Marathi Play
'Hindu Code Bill' till 23.03.2019.
2. The plaintiff's case may be stated as under :
The plaintiff is a sole proprietorship concern. It deals in
organising shows and Marathi theater plays and orchestras in Mumbai
and Maharashtra. The defendant No.1 is a retired BMC worker. He is a
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producer of Marathi drama namely 'Hindu Code Bill' which was also
produced by the present plaintiff alongwith defendant No.1. The
defendant No.2 is a translator of the said Marathi drama 'Hindu Code
Bill' (hereinafter it will be referred as the 'said play'). The said play was
originally written by defendant No.3 in Hindi language. Thus, the
defendant No.3 is the original writer of the said play in Hindi language
and defendant No.2 is the translator of the said play from Hindi to
Marathi language. The defendant No.3 has given rights to defendant
No.2 for the translation. The defendant No.3 by letter dated 22nd
May,2017 has given all the rights with respect to the said play to
defendant no.4 without reference and the to the exclusion of the
present plaintiff and therefore, the defendant no.4 has been impleaded
as party in this suit.
The idea of producing and organising the play in Marathi
language is of the plaintiff. To initiate this idea, the plaintiff requested
to defendant No.2 to translate the said original Hindi play into Marathi
language and also approached to defendant No.3 simultaneously for his
permission for producing and organising the Marathi play. Upon said
offer of the plaintiff, the defendant No.3 issued a letter dated
03.01.2018, thereby granting permission to the plaintiff to produce the
said play in Marathi. The defendant No.1 agreed to produce the said
play and accordingly the plaintiff appointed defendant No.1 as a
producer to produce the said play. The terms and conditions between
the plaintiff and defendant No.1 were laid down and therefore the
plaintiff prepared MOU and sent the same to defendant No.1 by email.
Despite plaintiff's request, the defendant on one pretext or the other,
avoided to sign and execute the said MOU. According to the plaintiff,
he took extensive efforts and applied his skills for conducting the
rehearsals of the said play and also made arrangements for lights,
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sounds so as to make the said play functional and complete in all
respect. The plaintiff also incurred expenses towards making cost of the
play though the responsibility to bear the expenses was taken up by the
defendant No.1. The defendant No.1 failed and neglected to incur the
expenses for production of the said play. The defendant No.1's failure
as such compelled the plaintiff to bear the expenses from his own
pocket.
The plaintiff was also in receipt of letter dated 23rd March,2018 of
authorisation from the defendant No.3 i.e. the original writer of the
play. In that letter, the defendant No.3 specifically granted the
organising rights of the said play to the plaintiff. The said letter
contains terms and conditions levied upon by the defendant No.3 which
inter alia included the condition that the plaintiff would be having sole
rights to conduct, produce and organise the said play for 25 shows in
number or for a duration of one year, whichever is earlier. On 27th
March,2018 i.e. one day prior to the scheduled first show of the said
play organised by the plaintiff, the plaintiff was in receipt of a letter
from defendant No.2. By that letter, the defendant No.2 raised issue
with respect to the rights of organising the said play. The said letter
was also accompanied with one letter with terms and conditions upon
the present plaintiff and the defendant No.1 for organising the said
play. The plaintiff was shocked to receive such a letter and terms and
conditions from the defendant No.2 as the defendant No.2 had no
authority to indicate such terms and conditions as all such rights vests
only with the defendant No.3 and the defendant No.3 had not issued
such terms and conditions while granting permission to the plaintiff.
The role of defendant No.2 was that of only translator and not of
original writer or composer.
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In furtherance to the letter of authorisation dated 23rd
March,2018, the defendant No.3 also issued one letter dated 26th
April,2018 to the defendant No.2 stating that the rights of translation
alone were given to the defendant No.2 and the said play will be under
the banner and production of the plaintiff only. Thus, this repudiates
the claims of any other person including the defendant Nos.1, 2 and 4
to organise any show of the said play under any other banner or
production house.
The plaintiff was in receipt of one more letter dated 22nd
May,2018 alleged to be issued by the defendant No.3 wherein the
defendant No.3 mentions that he is issuing authority in the name of
defendant no.4 to deal with institution or any individuals to collect
royalty from the play and permit them to play the said Marathi play.
This authority is only given for the year 2018. The authority was to
collect only royalty and to permit such institution/individuals to
organise the said shows. However, the rights to organise the play for
the 25 shows or for one year from 23rd March,2018 remained solely
with the plaintiff. Thus, the plaintiff is inter alia challenging the validity
of the letter allegedly written by the defendant No.3 dated 22nd
May,2018.
The plaintiff has come to know that one show of the said play is
being organised by the defendant No.1 under the banner 'spandan
Threatre', 'Loksanskrutik Manch' and 'Mauli' and the first show of the
said play was scheduled on 16th June,2018. The defendant No.1 is the
producer of that show and the defendant no.4 is in the production
management in organising the said show. Thus, the defendant Nos.1
and 4 violated rights given to the plaintiff by the defendant No.3 and
thus are organising to produce their own shows of the said play. The
defendant no.4 has organised the said show on the basis of letter dated
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22nd May,2018 written by the defendant No.3, referred to above.
Assuming whilst denying the genuineness of the said letter, the plaintiff
nowhere has given permission to defendant No.3 to organise his own
shows to the exclusion of the plaintiff and the right to organise show of
the said play rests only with the plaintiff.
For all the above reasons, the plaintiff has filed the instant suit for
the relief of directing defendant Nos.1 to 4 not to produce or organise
any show of Marathi play namely 'Hindu Code Bill' and to declare that
the plaintiff has the sole rights to produce and organise the remaining
23 shows of the said play or till 23rd March,2019, whichever is earlier as
per the letter dated 23rd March,2018 for authorisation issued by
defendant No.3. For all the aforesaid reasons, the plaintiff has prayed
to grant interim relief pending the hearing and disposal of the suit. The
plaintiff has filed affidavit dated 4th June,2018 in support of the Notice
of Motion. He has also filed affidavit in rejoinder dated 21st
August,2018 and additional affidavit in support of Notice of Motion
dated 3rd August,2018.
3. The defendant Nos.1 to 4 have filed their written statement at
Exh.6 and relied upon it to oppose the Notice of Motion. According to
the defendants, the defendant No.3 is the sole and exclusive rightholder
person of the original play and he is supreme authority to allot the
rights to any person of his choice. The plaintiff was quarreling and
misbehaving and not following the instructions of defendant Nos.1 to 3.
The authority of the plaintiff has been terminated by the defendant
No.3 due to non fulfillment of the instructions of the defendant
numbers 1 to 3. The plaintiff has failed to comply with the instructions
regarding executing of an agreement with the original writer i.e.
defendant No.3 and the translator i.e. defendant No.2 of the said play.
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NM 2261/18 in SU 1601/18 .. 6 .. Order
The plaintiff has unauthorisedly retained the play materials namely all
property, items related with costume and background music clip etc. to
damage the repo and consistency in the play. All these properties
belonged to defendant No.1 only as the defendant No.1 has incurred
expenditure for the same. The receipts and expenses are lying in the
custody of the defendant No.1. The defendant No.1 requested the
plaintiff to return the said materials but with intention to grab the same
and to create harm to the team work of the script play, the plaintiff
refused to return the same. The plaintiff is in habit of misguiding and
misleading the drama artists and key persons of the play. Due to these
circumstances, each element of the play is forced to incur an additional
expenses suffered by the producer i.e. defendant No.1 unnecessarily.
Since beginning, the attitude and behavior of the plaintiff was very
worse, harsh and arrogant and he has continuously threatened to whole
team of the play i.e. music arranger, producer, stage artiste etc. by
taking support of his advocate brother and his advocate friends giving
mental harassment to all the members including owner of the play. The
plaintiff has obtained signatures of some artists on agreements but
deliberately copies are not given to them. This resulted into anger,
wrath of the artists. The plaintiff has acted as a 'sutradhar' for shows
after receiving moneys by way of cheques from defendant No.1. The
plaintiff has not tendered detailed papers of the expenses to the
defendant No.1. Although the defendant No.1 was brought by the
plaintiff in the said play, the defendant No.1 was not happy with the
overall functioning of the plaintiff till 3rd show of the play. The
defendant No.1 seriously and extensively worked on the production of
the said play and incurred huge expenditure which could be cut sized
but in order to pour huge money in the play, the defendant No.1 was
mislead by the plaintiff inspite of specific direction to create the play in
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NM 2261/18 in SU 1601/18 .. 7 .. Order
sober and simple manner. The plaintiff has filed the instant suit in
order to extort money from the defendant No.1 specifically and in order
to blackmail defendant Nos.2 and 3.
The defendants have denied that the plaintiff is a producer of the
play. The things have been done under the banner of Canvas theatre
for name sake only subject to condition by the author and translator i.e.
defendant Nos.3 and 2. The defendant No.2 is the translator of the
Hindi play upon instructions and directions of defendant No.3. It is not
true that the plaintiff requested the defendant No.2 to translate the play
into Marathi language. The defendant No.2 had already translated the
original Hindi play by seeking prior permission of author i.e. defendant
No.3. It is not true that the plaintiff has simultaneously approached to
defendant No.2 for his permission to proceed to produce the said play
on the basis of translated dram in Marathi. The fact is that the
defendant No.3 is the original writer and he did not know the plaintiff
in person and today also situation remains the same. The defendant
no.4 was the coordinator/mediator in person in the process at earlier
stage. With reference to letter dated 3rd January,2018, the defendants
have submitted that this letter clearly shows that the defendant No.3
has given consent to play the Marathi drama under the banner of
Canvas theater. It is not fullfledged permission and no way concerned
with the production of play under the banner of Canvas Theatre.
According to defendants, it is true that the defendant No.1 showed
interest to produce the said play in Marathi language but with certain
terms and conditions. The defendants have denied that the plaintiff has
appointed the defendant No.1 as a producer of the said play. It is
admitted that the defendant No.1 has received the MOU on email from
the plaintiff. According to the defendants, the defendant No.1 gave
reply to it being one sided MOU and also that the terms and conditions
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which were discussed earlier were not reflected in the MOU. It was not
agreeable and not signed by the defendant No.1. Accordingly the
plaintiff has been replied for this mail of MOU. The plaintiff was
directed to adopt the appropriate steps to take proper course of law and
also to seek proper guidelines and information from the defendant
Nos.2 and 3 who were key persons in the entire process of publishing
and producing the said play, but at every step, the plaintiff was
disputing with all the defendants. Regarding the expenses, the
defendants have submitted that the expenses were to be taken care of
by the defendant No.1 i.e. producer only. In this respect, plaintiff has
been asked already to produce details of expenditure done, if any,
without knowledge of producer so as to decide further.
According to the defendants, as per letter dated 23.03.2018, it is
very clear that all the rights of the play are with defendant No.3 only.
Performance of Marathi play must require permission of the defendant
No.2, who is having Censor Certificate duly issued by Rangbhumi
Parinirikshan Mandal, Maharashtra. By the declaration dated
16.04.2018 and letter of authority dated 22.05.2018 given by the
defendants No.3 respectively, the rights in respect of the performing
Marathi play are given to defendant No.4 and defendant No.4's
permission is also necessary. The Censor Board has issued Censor
certificate and censored script copy of the play in the name of defendant
No.2 only. This Censor certificate has been illegally collected by the
plaintiff keeping the defendant No.2 in dark. The plaintiff has not taken
required permission from defendants No.2 & 3 for conducting further
shows in respect of communications made by them. The letter dated
26.04.2018 is internal correspondence between the defendant No.3 to
defendant No.2 and plaintiff is in no way concerned with this letter. The
letter dated 22.05.2018 issued by the defendant No.3 to defendant
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NM 2261/18 in SU 1601/18 .. 9 .. Order
No.4, entitling the defendant No.4 to collect royalty of the shows and
also to give permission for arranging shows. The defendant No.4 is
acting in the capacity of authorised person of defendants No.2 & 3. The
authority of the plaintiff has been terminated by the defendant No.3 by
letter dated 16.05.2018. Therefore, the plaintiff has no ground to say
anything on the proposed shows arranged by the other parties. The
plaintiff has no ground to challenge the letter dated 22.05.2018 issued
by the defendant No.3 to the defendant No.4. The defendant No.3 has
issued the conditional consent letter dated 23.03.2018 and 18.04.2018,
wherein the defendant No.3 has informed to the plaintiff about the
possibility of arising of disputes for non fulfillment of Agreement. The
plaintiff has not produced the said letter dated 18.04.2018 deliberately.
The plaintiff has organized the third show dated 19.04.2018 without
consent/permission from authors of the drama and hence, police
complaint was lodged in Bhoiwada police station on 19.04.2018. This is
also not disclosed by the plaintiff deliberately. The conditional and
reviewable consent letter given to the plaintiff has been cancelled by the
author i.e. defendant No.3 vide letter date 16.05.2018 and then,
appointed defendant No.4 to see the conduction of the play smoothly
and efficiently. In view of the letter dated 16.05.2018, the plaintiff has
no vested rights in respect of the said play.
For all the aforesaid reasons, the defendants have submitted that
the Notice of Motion is liable to be dismissed.
4. I have heard the arguments advanced by the parties. Following
points arise for my determination on which I record my findings as
under for the reasons to follow :
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NM 2261/18 in SU 1601/18 .. 10 .. Order
POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In Negative
2. Whether the plaintiff has balance of
convenience in his favour ?
In Negative
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
In Negative
4. What order? The Notice of Motion is
dismissed.
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
5. I have noted the pleadings of the parties in detail to notice the
facts alleged by them. What appears from the pleadings and from the
submissions of the parties is that the original play was written in Hindi
language by defendant No.3. The defendant No.2 has translated the
same into Marathi language. The parties have made certain
correspondence in respect of rights to conduct the experiments of the
play. The learned Advocate of the plaintiff has pointed out the letters
produced with the plaint. The letter dated 23.03.2018 was issued by the
defendant No.3 to the Canvas Theatre i.e. proprietary concern, which is
the plaintiff in the instant suit and Sachin Unhalekar is said to be it's
Sole Proprietor. By this letter, the defendant No.3 has stated that for the
experiments of the said play, of which the defendant No.2 is translator,
the defendant No.3 is giving rights to the said Canvas Theatre/plaintiff
with terms and conditions. Those terms and conditions are mentioned
in this letter. They include the condition that all the rights shall be with
the writer of the play. In the first phase, the said permission is being
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granted for 25 experiments, which are to be completed within one year.
Then, the letter dated 27.03.2018 was issued by defendant No.2 to
Sachin Unhalekar(plaintiff) and defendant No.1. In this letter, it is
mentioned by defendant No.2 that the plaintiff was to give letter
seeking permission of defendant No.2 in respect of the said play, but no
letter has been given, and the plaintiff has also not given reply to the
defendant No.3's letter dated 23.03.2018. Therefore, by letter dated
27.03.2018, the defendant No.2 has informed to the plaintiff and
defendant No.1 that as these formalities have not been done, the
defendant No.2 shall be entitled to terminate the transaction. The other
letter dated 27.03.2018 is addressed to the plaintiff and defendant No.1
by the defendant No.2. In this letter, the defendant No.2 has stated that
he could give permission for staging the aforesaid play with conditions
mentioned in this letter. Then, the letter dated 26.04.2018 is of
defendant No.3 to the defendant No.2. In this letter, the defendant No.3
has granted permission for translation of the Hindi play into Marathi
play. The certificate dated 22.05.2018 is given by defendants No.3 & 4,
whereby, the defendant No.4 has been authorized by the defendant
No.3 to deal with institutions or performance and collect royalty of the
Marathi translated play. Thereafter, the documents produced by the
plaintiff is his Advocate's notice dated 07.06.2018 issued to defendants
No.2,3 and 4 claiming the plaintiff's rights over the play in respect of
exhibition, experiment, staging etc.
6. As far as, the defendant No.3 is concerned, it appears that by the
letter date 23.03.2018, he appears to have given permission to the
plaintiff for exhibiting or experimenting the play for one year or for 25
experiments/exhibitions/shows, whichever is earlier. However, I find
merits in the submissions of the learned Advocate of the defendants that
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only permission of defendant No.3 is not sufficient for the plaintiff to
claim rights to conduct the shows of the Marathi play. It may be noted
that originally, the defendant No.3 wrote the said play in the language
of Hindi and defendant No.2 translated it into Marathi language. The
plaintiff is seeking the relief in respect of the Marathi translated play.
The work of defendant No.2 in respect of the translation has it's own
individuality apart from the original play in Hindi language. The
defendant No.2 alone has rights over the translated Marathi play.
Without his permission, the plaintiff cannot show the Marathi translated
play and, therefore, only on the basis of consent or permission given by
the defendant No.3, the Marathi translated play cannot exhibited or
shown by the plaintiff. The plaintiff has not produced any document or
agreement, whereby, the defendant No.2 has given his consent or
permission for exhibiting the Marathi translated play. The letter dated
27.03.2018 issued by the defendant No.2 to the plaintiff and defendant
No.1 simply lays down the conditions and it is not a complete
agreement. In this letter, only conditions have been laid down and it
could have been a complete contract, only after a document was
executed by both the parties i.e. plaintiff and defendant No.2 expressing
that both of them agree to these terms and conditions. No such
document or agreement has been entered into between the plaintiff and
defendant No.2. Therefore, for all the aforesaid reasons, I hold that the
plaintiff has failed to show that he has prima facie case and balance of
convenience in his favour. Therefore, I have recorded negative findings
on points No.1 & 2. I also hold that the plaintiff has failed to show that
he would suffer irreparable loss, if the temporary relief is not granted
and hence, I have recorded negative findings on point No.3. In view of
negative findings on points No.1,2 & 3, the Notice of Motion will have
to be dismissed and hence, I have answered point No.4 accordingly.
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Hence, I pass the following order.
: O R D E R :
The Notice of Motion No. 2261 of 2018 is hereby dismissed
and it stands disposed off accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 04.03.2019. City Civil Court, Gr. Mumbai
Dictated on : 02.03.2019 & 04.03.2019.
Transcribed on : 04.03.2019 & 05.03.2019.
Signed on : 06.03.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06.03.2019, at 3.53 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 04.03.2019.
Judgment/order signed by P.O. on 06.03.2019.
Judgment/order uploaded on 06.03.2019.
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