TMI Blog2018 (11) TMI 1730X X X X Extracts X X X X X X X X Extracts X X X X ..... in the way and this order will not become an impediment - it is not for this Court to grant leave to make counter claim. It is only clarified that if law permits counter claim to be made in the junior suit, this order will not impede the same and therefore, these observations shall not be construed as leave to make counter claim. Senior suit is dismissed as infructuous in the light of junior suit being filed. - Application No. 6025 of 2018 in C.S.No.632 of 2017 - - - Dated:- 20-11-2018 - THE HON'BLE MR. JUSTICE M. SUNDAR For the Applicant : Mr.Parthasarathy, Mr.Arun Karthikmohan For the Respondent : Mr.Anirudh Krishnan ORDER This application raises a very interesting legal situation. It may be necessary to set out the factual matrix in a nutshell, sans unnecessary details and particulars, for better understanding and appreciation of this order. 2 Factual Matrix in a Nutshell : (a) One P.Suresh (son of A.Perumal) (hereinafter referred to as 'PSR' for brevity and clarity) was engaged as a Product Developer by a private limited company which goes by the name QD Seatamon Designs Private Limited (her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crum of the suit) are illegal / groundless, for a declaration that PSR has not infringed suit copyright or an other confidential information. Another declaration prayer that QDS company is not the owner of the suit copyright, for costs and a usual residuary limb form part of the suit prayer. To be noted, communications which constitute the fulcrum of this suit have been set out as three emails, dated 6.7.2017, 13.7.2017 and 4.8.2017 sent by QDS company to PSR. This suit, i.e., C.S.No.632 of 2017 filed under Section 60 of CR Act and presented in this Court on 9.8.2017 shall hereinafter be referred to as 'senior suit'. (g) Suit summons in senior suit was duly served on the sole defendant, i.e., QDS company. Thereafter, QDS company filed / presented a suit being C.S.No.742 of 2017 on the file of this court on 15.9.2017. This suit is inter-alia under Sections 51 and 55 of CR Act. PSR is the sole defendant in this suit. Prayers in this suit are for injunctive relief qua suit copyright, damages for alleged mental agony owing to alleged infringement of suit copyright, for delivery of offending material and costs. This infringement suit shall hereinafter be referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with respect to proviso to section 60 has been well settled by the Delhi High Court in Super Cassette Industries Ltd. Vs. Bathla Cassettes India (P) Ltd. [AIR 1994 Del 237], the Supreme Court has affirmed this ratio in M/s.MAC Charles (I) Ltd. Vs. M/s.Indian Performing Rights Society Ltd. [SLP (C)No.39994 of 2012, decided on 30.9.2013]. There is no reason for resurrection of a debate on the same. (c) The Bombay High Court in Music India Ltd. Vs. M/s.Super Cassetts Industrial Pvt. Ltd. [1987 PTC 83] interpreted proviso to section 60 even before the Delhi High Court in Super Cassette Industries Ltd case. The Bombay High Court also held that once a suit for infringement has been filed, the previous pending suit with respect to groundless threat under section 60 of the Copyright Act will become infructous. (d) Even though the Supreme Court judgment is pre-leave, it is binding on the Madras High Court under Article 141 as interpreted in conclusion para, more particularly sub paragraph (v) of paragraph 44 of the Kunhayammed and others Vs. State of Kerala reported in (2000) 6 SCC 359. Suganthi Suresh Kumar Vs. Jagdeeshan reported in (2002) 2 SCC 420 was also pressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dras High Court are : (a) It should prima facie be established that plaintiff in copyright infringement suit has filed the same with due diligence and this is a question of fact. Likewise meaning of expression 'due diligence' as occuring in proviso to Section 60 of CR Act not examined. (b)The expression 'copyright claimed by him' occurring in proviso to Section 60 of CR Act has not been interpreted. (c)Whether a suit under section 55 of CR Act for infringement should be prior to or post the suit under section 60 of the CR Act. (d)Whether the relief for damages under section 60(b) of the CR Act can be taken away merely because a suit for infringement has been filed under section 55. This is an important sub issue as the main provision recognises the plaintiff s right to claim damages and the proviso cannot take away a right which is recognised by the main provision. (iv) The Supreme Court judgment does not fall within the purview of doctrine of binding precedent under Article 141 of Constitution of India, as this principle/doctrine has certain exceptions. There are two exceptions to Article 141 of Constitution of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronounced after being fully argued and after consideration of all issues and sub-issues with respect to the case, will be binding under Article 141 or in other words, it should be a Ex Cathedra statement. In Municipal Corporation of Delhi case, it was held that when a point of law is not pressed in court, then it shall not bind the lower court. Hence it will follow that as the 4 sub-issues referred to supra, were not articulated before the Delhi High Court and the Supreme Court, those judgments will not bind this Commercial Division. (ix) Moreover the judgment in MAC Charles case is pre-leave, therefore the Doctrine of merger will not apply and Article 141 will not come into operation. (x) Judgments which are per incuriam are not binding on court [Synthetics and Chemicals Ltd.(1991) 4 SCC 139]. (xi) A Division Bench of the Madras High Court in P.Bhaskaran Vs. S.K.M.Sivakumaran and others [MANU/TN/1178/2015] has held some court case laws to be sub silentio qua a particular Rule. 6 Deliberation and Discussion : (a) Though several rival submissions have been made, on a careful analysis of the entire factual matrix and legal pleas th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 also. Supreme Court in MAC Charles case held that Delhi High Court has clarified in Super Cassette the proviso to Section 60 which makes the position clear that this Section will have no application if a person who has made such threats commences and prosecutes with due diligence an action for infringement of the copyright claimed by him. (f) It has to be borne in mind that MAC Charles is an order made by Supreme Court at pre leave stage or in other words, what is understood as the first part of Article 136 of the Constitution of India. If MAC Charles is post leave, there is no difficulty as doctrine of merger will apply. As it is pre leave and as it is at SLP stage, one will have to necessarily look at the binding nature of what Supreme Court has said in MAC Charles case. For this, we have to look at the often cited case law of precedent being Kunhayammed Vs. State of Kerala reported in (2000) 6 SCC 359. Conclusions arrived at by Supreme Court in Kunhayammed have been summed up and set out as seven bullet points in seven sub paragraphs of paragraph 44 of Kunhayammed case. What is of relevance to us is sub paragraphs (iv) and (v). A careful reading of sub paragraphs (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (h) This takes us to the question as to whether what Supreme Court has said in MAC Charles is statement of law. For this purpose, it may be necessary to have a careful look at the relevant paragraph in MAC Charles order which reads as follows : The judgment and order in the matter of Super Cassette Industries Ltd. Vs. Bathla Cassettes India (P) Ltd., AIR 1994 Del 237, has further clarified the proviso which makes the position clear that this Section will have no application if a person who has made such threats commences and prosecutes with due diligence an action for infringement of the copyright claimed by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that sub silentio is in fact an exception to Article 141. (n) Mr.Anirudh Krishnan, learned counsel, referred to three judgments of Hon'ble Supreme Court, namely, Municipal Corpn. of Delhi Vs. Gurnam Kaur reported in AIR 1989 SC 38 : (1989) 1 SCC 101, State of U.P. Vs. Synthetics and Chemicals Ltd., reported in (1991) 4 SCC 139 and Arnit Das (1) Vs. State of Bihar reported in (2000) 5 SCC 488 and submitted that Professor P.J. Fitzgerald, Editor of the Salmond on Jurisprudence, 12th Edn. explained the concept of sub silentio and this explanation of Professor P.J.Fitzgerald has been quoted in the aforesaid Gurnam Kaur and Synthetics and Chemicals Ltd. cases and the said Synthetics and Chemicals Ltd. case has been referred to in Arnit Das case. Relevant paragraph of what Prof.P.J.Fitzgerald said is as follows : A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blessed with authorities and case laws, I have to necessarily examine whether the aforesaid issue pertaining to groundless threat suit has passed sub silentio in MAC Charles case. To be noted, it is not disputed before me by defendant's counsel Mr.R.Parthasarathy that aforesaid points raised by Mr.Anirudh Krishnan, i.e., damages, prima facie case (not frivolous suit for infringement) and due diligence have not been examined in Super Cassette case and MAC Charles case. Therefore, the submission of Mr.Anirudh Krishnan is that these three points and others enumerated in rival submissions supra passes sub silentio in Super Cassette case and MAC Charles case. (q) Therefore, the issue is further narrowed down as to whether sub silentio is an exception to Article 141. (r) In search of an answer to this question, learned counsel for applicant placed reliance on two judgments of Supreme Court and one judgment of Full Bench of our High Court. Two judgments of Supreme Court are Suganthi Suresh Kumar Vs. Jagdeeshan reported in (2002) 2 SCC 420 and State of Gujarat Vs. R.A.Mehta reported in (2013) 3 SCC 1. Full Bench judgment of this Court is Philip Jeyasingh Vs. The Jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities of the particular case which finally gives rise to the decision. (Vide Somawanti v. State of Punjab [AIR 1963 SC 151] , Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur [(1970) 2 SCC 267 : AIR 1970 SC 1002] , Ambika Prasad Mishra v. State of U.P. [(1980) 3 SCC 719 : AIR 1980 SC 1762] , SCC p. 723, para 6 and Director of Settlements v. M.R. Apparao [(2002) 4 SCC 638 : AIR 2002 SC 1598] .) (t) With regard to Full Bench judgment of Madras High Court, relying on Pritam Kaur Vs. Surjit Singh reported in MANU/PH/0180/1984, Full Bench of our High Court traced the law of precedents in detail by referring to English Courts and Supreme Court of India. It was held that if ratios of Larger Benches and judgments of Superior Coruts were to be merely rested upon the quicksands of the ingenuity of the counsel to raise some fresh or novel argument which had not been earlier raised or considered and if such orders are dislodged on this basis, then the finality of binding precedent would become a mirage. It was specifically held that the hallowed rule of the finality of binding precedent would become merely a teasing mirage. (u) As a last submission, referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, but in P.Bhaskaran supra, a bare perusal of paragraph 27 of said judgment reveals that the provision concerned in that case, i.e., Rule 35(aa) had not been brought to the notice of the Court at all. In this view of the matter also, P.Bhaskaran case is clearly distinguishable. As mentioned supra, P.Bhaskaran is certainly not an authority for the principle that sub silentio is an exception to Article 141 of the Constitution of India. Besides not being an exception to Article 141 of the Constitution of India, P.Bhaskaran, on facts stands on a different footing even with regard to sub silentio principle as what has passed sub silentio is one entire rule and not some arguments on the Rule which was otherwise not only brought to the notice of the Court but arguments were also advanced on the same. (w) Therefore, I have no hesitation in my mind that statement of law made by Supreme Court is declaration of law within the meaning of Article 141. As of today, this principle alone can be followed. In other words, it is not for the High Court to hold that a judgment of Supreme Court is per incuriam or to overlook the statement of law made therein on the ground that some issues pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Meier G.m.b.H Vs. Henning reported in [1975] 1 QB 416, presiding the Court of Appeal along with Justices Foster and Lawton examined the question as to whether an English Court can award a judgment in foreign currency. Though House of Lords in Re United Railways of the Havana and Regla Warehouses [1961] AC 1001 held that an English Court cannot award a judgment in foreign currency, Lord Denning applied cessante ratione principle (to be noted, cessante ratione principle means changed condition rule) and held that the rule laid down by House of Lords in United Railways case was obsolete as the reason that existed in 1961 during United Railways case is no longer existing owing to changed economic conditions. In other words, it was Lord Denning's considered view that economic conditions that existed in 1961 which impelled House of Lords to hold that a English Court cannot award a judgment in foreign currency ceases to exist in 1974 when he penned Henning judgment. To be noted, in Henning judgment, Justice Lawton dissented and it was not a unanimous judgment. Further to be noted, Henning judgment was not carried in appeal, i.e., it was not carried to House of Lords. (iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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