Tr.P (C) No. 806 of 2021

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944 ``` ## **`TR.P(C) NO. 806 OF 2021`** ``` SEEKING TRANSFER OF CS 683/2021 OF THE COMMERCIAL COURT, KOZHIKODE TO THE ADDITIONAL DISTRICT COURT-V, ERNAKULAM ``` ## **`PETITIONER:`** ``` A.M.RAJU AGED 68 YEARS S/O.LATE MATHEW, DOING BUSINESS UNDER THE TRADE NAME HARMONY VIDEOS, RESIDING AT ATHANICKAL, MEKKARA ROAD, PUTHIYAKAVU, TRIPUNITHURA, PIN 682 301, THEKKUMBHAGAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADV VARGHESE C.KURIAKOSE ``` ## **`RESPONDENTS:`** ``` 1SHIBU JOSEPH AGED 44 YEARS S/O.LATE K.C.JOSEPH, KOLAMAKKAL HOUSE, KIZHAKKUMURI P.O., KAKKODI, KOZHIKODE 673 611 2NANDAKUMAR AGED 64 YEARS S/O.VENKITTARAMA NAIDU, PRESENTLY RESIDING AT HOUSE NO.27, RR NAGAR, MULLAKKAL P.O., ALAPPUZHA 688 011. 3M/S. SOUTH INDIA DIGITAL MUSIC MANAGEMENT PVT LTD. (SIDMM) NO.20/43, UMAPATHI STREET, WEST MAMBALAM, CHENNAI, TN 600 033 4M/S. SHORT FORMATS A WING, 4TH FLOOR-406/407, EXPRESS ZONE, WESTERN EXPRESS HIGHWAY, MALAD (EAST) 400 097, MUMBAI 5JOB KURIAN M/S.MUSIC ZONE, CP UMMAR ROAD, ERNAKULAM, KERALA, INDIA, KOCHI 18 6SAINA VIDEO VISION ``` ## **`Tr.P (C) NO. 806 OF 2021 2`** ``` 40/181, NH ROAD, PALARIVATTOM, ERNAKULAM 682 025 7BISCOOT REGIONAL EXPRESS ZONE A WING, PANDIT MOTILAL NEHRU MARG, PANCH BAWADI, MALAD EAST, MUMBAI 400 097 8AVNIER TECHNOLOGY XI/147-B, 2ND FLOOR, MYTHRI NAGAR, NEDUMTHODU, PERUMBAVOOR, PIN 683 547 BY ADVS. SHARAN SHAHIER MITHUN BABY JOHN S.RENJITH K.R.PRATHISH ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P (C) NO. 806 OF 2021 3 ``` **Dated this the 20[th] day of June, 2022** ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure, seeking to transfer C.S. No.683/2021 from the Commercial Court, Kozhikode to the Additional District Judge-V, Ernakulam. 2. The petitioner’s case, in a nutshell, which is relevant for determination of the transfer petition is that, he is the plaintiff in the O.S No. 41/2021(Annexure 1) filed against the respondents 2 to 5 before the Additional District Judge-V, Ernakulam. He has along with suit filed I.A No.2/2021, seeking an order of temporary injunction. The court below has passed Annexure 2 order in his favour. The petitioner is the founding partner of M/s Harmony Videos. The second respondent is associated with Malayalam movie industry and the producer of Malayalam movies under the banner, Nandanam movies. ## **`Tr.P (C) NO. 806 OF 2021 4`** The respondents 3 to 5 are the entities/persons engaged in exploitation of the rights of movies through various forms using the internet as a basic medium. They hold internet platforms. The second respondent has produced three Malayalam movies, named, Mudra, Thaniyavarthanam and Sooryamanasam. The movies were released through the theatres and have copy rights on different aspects. The second respondent has the ownership and the original copy right over the movies. Sections 18 and 19 of the Copyright Act (in short ‘Act’) deals with assignment and the mode of assignment, respectively. It is a legal requirement under the Act that an assignment should be in writing. The petitioner and the second respondent have entered into a written agreement of assignment as provided under the Act. The petitioner has understood that the second respondent has given a complaint to the City Police Commissioner, alleging that the petitioner has infringed his copyright. The petitioner has contacted the Hill Palace Police Station, Tripunithura, and explained his position. The ``` Tr.P (C) NO. 806 OF 2021 5 ``` petitioner has learnt that the second respondent wants to confer his rights on the respondents 3 to 5. The second respondent has suppressed the fact that he has assigned his rights in favour of the petitioner. It was in the above circumstances that the petitioner has filed Annexure 1 suit. Now, the first respondent has filed C.S. No.683/2021(Annexure 3) against the second respondent and respondents 6 to 8 before the Commercial Court, Kozhikode. He has also filed I.A. No.2/2021 (Annexure 4) for an interim relief. A reading of Annexures 1 and 3 would indicate that both the suits are for enforcement of copyright. As Annexure 1 was filed first, it would be just and convenient to transfer Annexure 3 from the Commercial Court, Kozhikode to the Additional District Court-V, Ernakulam, so that the suits can be consolidated and jointly tried. Moreover, the respondents 3 to 5 are residing in Ernakulam. Therefore, no inconvenience would be caused to the respondents if the suit is transferred to the Additional District Court -V, Ernakulam. Hence, the transfer petition. ## **`Tr.P (C) NO. 806 OF 2021 6`** 3. The first respondent has filed a counter affidavit refuting the allegations in the transfer petition. He has, inter alia, contended that the transfer petition is not maintainable and there is no balance of convenience in favour of the petitioner to seek for transfer in the light of the law laid down by the Honourable Supreme Court in **Indian Overseas Bank v. Chemical Construction Co.** [1979 (4) SCC 358]. The two suits arise out of two distinct causes of action and are based on two independent assignment agreements. The parties to the suits are also different. It is only the second respondent, who is common in both the suits. There is no inter lapping of causes of action. The second respondent has assigned the same movies to several entities. The transfer petition is groundless and may be dismissed. 4. The second respondent has filed a counter affidavit denying the allegations in the transfer petition. It is specifically contended that the assignment agreement dated 07.12.2000, relied on by the petitioner, is forged. The second respondent has granted the ``` Tr.P (C) NO. 806 OF 2021 7 ``` petitioner only Audio cassette & Video cassette disc rights. In the year, 2003, the first respondent had approached the petitioner for the exclusive right with regard to Audio & Video, in internet, Mobile, live streaming and downloading platforms of the movies of Taniyavarthanam, Adivaram, Mudra, Sooryamanasam and Yadhavam. Accordingly, they have entered into an assignment agreement. The second respondent has not entered into an agreement in respect of internet rights with any other person. The allegations in the suit and the transfer petition are false. The adjudication of Annexure 3 is a condition precedent as per the stipulation in the assignment agreement executed with the first respondent. It is settled that an order of transfer shall be passed only with utmost care and in a judicious manner. The mere convenience of the parties is not a ground for transfer under Section 24 of the Code of Civil Procedure. The transfer petition is filed only as a dilatory tactic by the petitioner to stall the prosecution proceeding initiated against him. Hence, the transfer ## **`Tr.P (C) NO. 806 OF 2021 8`** petition may be dismissed. 5. Heard; Sri. Varghese C.Kuriakose, the learned counsel appearing for the petitioner, Sri. Sharan Shahier, the learned counsel appearing for the first respondent and Sri.Midhun Baby John, the learned counsel appearing for the second respondent. 6. The transfer petition was heard in detail on 08.06.2022. Since the learned counsel appearing for the petitioner had contended that Annexure 1 and Annexure 3 suits are based on the assignment agreements executed by the second respondent, this Court directed the petitioner to produce the assignment deed. Accordingly, the petitioner has produced Annexure A5 agreement with I.A. No.1/2022. The second respondent has filed a counter affidavit to I.A. No.1/2022 and has produced Annexures R2(a) and R2(b) complaints dated 12.10.2021 filed by him against the petitioner for infringement of copyright, before the City Police Commissioner, Cochin and the Station House Officer, Cyber Cell, Kochi. 7. The point that arises for consideration in the ## **`Tr.P (C) NO. 806 OF 2021 9`** transfer petition is whether C.S. No.683/2021(Annexure 3) has to be transferred from the Commercial Court, Kozhikode to the Additional District Judge -V, Ernakulam to be consolidated and jointly tried with O.S. No.41/2021 (Annexure 1). 8. The specific case of the petitioner in the transfer petition is that the second respondent has executed Annexure A5 assignment agreement in his favour on 07.12.2000, assigning him the right of three movies, named Mudra, Thaniyavarthanam and Sooryamanasam. It on the alleged ground, that the second respondent has violated the conditions in Annexure A5, and that the respondents 3 to 5 are attempting to infringe Annexure A5, that the petitioner has filed Annexure 1 suit before Additional District Judge-V, Ernakulam. It is also the petitioner’s case that the second respondent has entered into an assignment agreement with the first respondent during the subsistence and validity of Annexure A5, whereby the second respondent has assigned the first respondent with five movies, including the three movies ## **`Tr.P (C) NO. 806 OF 2021 10`** assigned to the petitioner. 9. The first respondent has instituted O.S. No.41/2021 against the second respondent and respondents 6 to 8 alleging that they are attempting to infringe the first respondent’s rights over the five movies. 10. It is the second respondent who has allegedly entered into assignment agreements with both the petitioner and the first respondent. The second respondent has emphatically disputed the execution of Annexure A5 agreement and has alleged it to be a fabricated document. The second respondent has lodged Annexures R2(a) and R2(b) complaints before the police, prior to the institution of Annexure 1 suit. Now, the complaints are pending investigation. The second respondent has even challenged the petitioner’s cause of action to file the suit. 11. On the contrary, the second respondent does not dispute Annexure R1(a) agreement entered by him with the first respondent, with respect to the assignment of five movies. ## **`Tr.P (C) NO. 806 OF 2021 11`** 12. The law with respect to consolidation and joint trial of the suits is fairly well settled. The Honourable Supreme Court in **Indian Overseas Bank Madras v. Chemical Construction Co. and others** [1979 KHC 6828] has held as follows:- “18. Although the exercise of this discretionary power cannot be imprisoned within the strait jacket of any cast iron formula uniformly applicable to all situations. Yet, certain broad propositions as to what may constitute a ground for transfer can be deduced from judicial decisions. One of them is that where two suits raising common questions of facts and laws between parties common to both the suits, are pending in two different courts, it is generally in the interest of justice to transfer one of those suits to the other forum to be tried by the same court, with consequent avoidance of multiplicity in the trial of the same issues and the risk of conflicting decisions thereon. The instant case falls squarely within this category.” ## 13. Similarly, this Court in **T.V. Eachara Warrier v.** **State of Kerala and Others** [ 1984 KHC 99] has held thus:- ## **`Tr.P (C) NO. 806 OF 2021 12`** “13. A transfer of the suit is not to be made in a light hearted-fashion. This is particularly so, when the party seeking the transfer is the very same person who opted one of the places available to him for instituting the suit. Convenience of other parties and the expenses likely to be incurred by them are also to be considered. (See the decision of the Supreme Court in **Indian Overseas Bank Madras v. Chemical Construction Co. and others [** AIR 1979 SC1514].” 14. On a consideration of the rival pleadings and submissions, I am of the definite view that the causes of action for filing the two suits are not intertwined, instead are distinct and separate. More over, the respondents 1, 6, 7 and 8 are not parties in Annexure 1 suit. Since, the causes of action in respect of the suits are separate and distinct and the parties are different and the suits are based on independent assignment agreements, the suits cannot be consolidated and jointly tried. Furthermore, in view of the lodging of AnnexureR2(a) and R2(b) complaints by the second respondent against the petitioner, even prior to the institution of Annexure 1 suit, and the suit document i.e., Annexure 5 assignment ``` Tr.P (C) NO. 806 OF 2021 13 ``` agreement itself is disputed by the second respondent, the determination of Annexure 1 suit may get delayed. Therefore, if Annexure 3 suit is jointly tried with Annexure 1, the first respondent and the respondents 6 to 8 would be put to severe hardship and inconvenience. Also, I find that the suits cannot be consolidated. Therefore, there is no necessity to transfer Annexure 1 suit as prayed for. In the above factual and legal matrix and the findings rendered above, I decline to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure. Resultantly, the transfer petition is dismissed. **Sd/-** ## **C.S.DIAS, JUDGE** rmm21/06/2022 ## **`Tr.P (C) NO. 806 OF 2021 14`** ## **`APPENDIX OF TR.P(C) 806/2021`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1 ``` ``` TRUE PHOTOSTAT COPY OF PLAINT IN O.S.NO.41/2021 ON THE FILE OF ADDL. DISTRICT JUDGE-V, ERNAKULAM DATED 1.11.2021 ``` - `Annexure 2 TRUE PHOTOSTAT COPY OF ORDER DATED 18.11.2021 IN I.A.NO.2/2021 IN O.S.NO.41/2021` - `Annexure 3 TRUE PHOTOSTAT COPY OF THE PLAINT IN C.S.NO.683/2021 ON THE FILES OF COMMERCIAL COURT KOZHIKODE DATED 16.11.2021` - `Annexure A4 TRUE PHOTOSTAT COPY OF THE I.A.NO.2/2021 IN C.S.NO.683/2021 DATED 16.11.2021` - `ANNEXURE A5 CERTIFIED COPY OF THE ASSIGNMENT AGREEMENT DATED 07.12.2000 EXECUTED BETWEEN THE 2ND RESPONDENT AND THE PETITIONER` - `ANNEXURE A6 CERTIFIED COPY OF LAB LETTER ISSUED BY NANDHANA FILMS TO VIJAYA LAB FOR THE MOVIE “MUDRA” DATED 7.12.2000` - `ANNEXURE A7 CERTIFIED COPY OF LAB LETTER ISSUED BY NANDHANA FILMS TO VIJAYA LAB FOR THE MOVIE “THANIYAVARTHANAM” DATED 7.12.2000` - `ANNEXURE A8 CERTIFIED COPY OF LAB LETTER ISSUED BY NANDHANA FILMS TO VIJAYA LAB FOR THE MOVIE “SOORYAMANASAM” DATED 7.12.2000` ## `RESPONDENTS’ ANNEXURES` ``` ANNEXURE R1(a) : A TRUE COPY OF THE ASSIGNMENT AGREEMENT DATED 25.12.2003 BETWEEN THE FIRST RESPONDENT AND THE 2ND RESPONDENT. ``` ``` Tr.P (C) NO. 806 OF 2021 15 ``` ``` ANNEXURE R1(b):A SCREENSHOT FOR THE REJECTION OF MONETISATION OF THANIYAVARTHANAM AND SOORYAMANASAM. ``` - `ANNEXURE R1(c): A TRUE COPY OF THE AFFIDAVIT/UNDERTAKING GIVEN BY THE SECOND RESPONDENT TO THE FIRST RESPONDENT.` ``` ANNEXURE R1(d): A TRUE COPY OF THE AMENDMENT APPLICATION. ANNEXURE R1(e): A TRUE COPY OF THE PETITION TO AMEND CAUSE TITLE ```