TaxTMI 
TaxTMI 
2013 (4) TMI 651
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....752 of 2001 for an injunction which is pending on the Original Side of this Court. A Notice of Motion Notice of Motion No.2846 of 2003 was filed in the suit. 3. On 1 March 2002, citing the tariff of the Plaintiff as excessive, the Defendant approached the Copyright Board for grant of a compulsory licence under Section 31(1)(b) of the Copyright Act, 1957. The Copyright Board disposed of the complaint on 19 November 2002 by which the rate of royalty was fixed at Rs.661/- per needle hour of broadcasting. Statutory appeals were filed before this Court both by the Plaintiff and by the Defendant against the order of the Copyright Board. On 10 December 2003, the parties arrived at an interim consensual arrangement in the Notice of Motion which was to remain effective pending the hearing and final disposal of the appeals before this Court. On 13 April 2004 this Court disposed of the appeals by setting aside the order of the Copyright Board dated 19 November 2002. Special Leave Petitions were filed against the order of this Court. Since the interim arrangement recorded in the Consent Terms came to an end, a Motion was filed by the Plaintiff in the suit before this Court. By an order dated....
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....he Plaintiff is that despite the receipt of the notice of termination on 30 March 2012, the Defendant continued to unauthorisedly broadcast the sound recordings in the repertoire of the Plaintiff thereby infringing the copyright of the Plaintiff. The Plaintiff has instituted a suit seeking a permanent injunction against the Defendant, rendition of accounts and damages for infringement of copyright. 8. On an application for an ad-interim relief the learned Single Judge, by an order dated 16 April 2012, noted that the Defendant had submitted a Bank Guarantee only in the amount of Rs.10,000/- by a covering letter dated 23 September 2010. The learned Judge held that a revised Bank guarantee should have been submitted every quarter commencing from October to December 2010 and it was on account of a breach of the obligation to submit a Bank guarantee for that quarter and for consecutive five quarters that the termination had been effected. The learned Single Judge observed that in these circumstances it is not open to the Defendant to raise the claim in the suit by the Plaintiff by relying upon some amount which was stated to be subject to adjustment in the suit that has been institute....
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....aintiff could be resisted. The learned Single Judge noted that it was incumbent on the Defendant to demonstrate how it had abided by the terms and conditions of the licence which prima facie had not been proved. 10. Despite these findings, the learned Single Judge directed that if the Defendant deposits a sum of Rs.6,50,000/- in addition to the sum of Rs.5,00,000/- already deposited, it can continue to broadcast the sound recordings from the repertoire of the Plaintiff and that it should abide by the terms and conditions of the licence issued in its favour by the Copyright Board. The learned Judge, however, directed that if there is a failure on the part of the Defendant to effect payment as directed, an ad-interim injunction in terms of prayer clause (a) of the Motion would follow. 11. On behalf of the Plaintiff, it has been submitted that the order of the learned Single Judge allowing the Defendant to broadcast songs from the repertoire of the Plaintiff subject to the payment of a total sum of Rs.11.50 lakhs amounts to the grant of a compulsory interim licence, something which even the Copyright Board has been held by the Supreme Court not to have jurisdiction to grant in the....
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....inant. Complainant shall be deemed to be a music provider for the music provided by it or received by it free of cost and broadcast. For arriving at "net advertisement earnings", all Government and municipal taxes paid, if any, and commission paid towards the procurement of such advertisements to the extent of 15% of such advertisement earnings shall be excluded; (b) Complainants shall furnish within a week of grant of licence by the Registrar of Copyrights a bank guarantee for Rs.10,000 in favour of the respondent for each radio station. However, the sum of such bank guarantee shall be revised within two weeks after the close of every quarter of the year to such sum for which complainant was liable for payment of compensation for that quarter. Quarter of a year means a period of three months ending on the last day of March, June, September and December of the relevant year; (c) If the complainant fails to revise the bank guarantee in terms of clause (b), respondent shall be at liberty to cancel the licence without giving any notice and recover the remaining dues from the available bank guarantee; (d) Payment of compensation by the complainant to the respondent for a month sh....
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....n used for the month. 13. There is no dispute before the Court about the factual position, as there was none before the learned Single Judge, that a revised bank guarantee was never furnished. Moreover, no payment whatsoever was effected by the Defendant to the Plaintiff between 2009 and 2012. This is evident from the chart that was annexed by the Defendant to its affidavit-in-reply dated 7 May 2012. The contention of the Defendant, however, was that there was an understanding between the parties that in the event the final order of the Copyright Board prescribes a lower rate of royalty than the interim rate that was paid by the Defendant, the Plaintiff would be required to adjust the future amount of royalty payable by the Defendant from the account already in possession of the Plaintiff in the form of excess royalty payments. Now prima facie, any such understanding would have to be premised on the basis of some material on record which is conspicuous by its absence. As a matter of fact, the letter of the Defendant's Advocate dated 8 May 2012 contains a fair admission that there is no document formally recording the alleged understanding and arrangement. In its rejoinder before ....
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....f convenience would weigh in favour of injuncting against an infringement of its copyright. 15. The learned Single Judge, in our view, was in error, having correctly come to the conclusion that there was a breach on the part of the Defendant in complying with the terms of the licence, in directing that subject to a deposit of Rs.11.50 lakhs, the Defendant would be entitled to the benefit of the broadcasting of songs from the repertoire of the Plaintiff on the terms and conditions as set out in the compulsory licence. Once prima facie a breach has been established and the termination follows the breach, it would be wholly inappropriate to direct that the Defendant may nonetheless continue to broadcast songs from the repertoire of the Plaintiff on the terms governing the compulsory licence. The licence was terminable and has been terminated for breach. 16. In Super Cassettes Industries Ltd. (supra), the Supreme Court has held that even the Copyright Board does not possess the power under Section 31(1) (b) to grant an interim compulsory licence. The judgement of a Division Bench of this Court in Music Choice India Private Limited (supra) similarly emphasises that exclusive jurisdi....