Mr Saboo for the Plaintiffs seeks urgent circulation of a Notice of Motion in this Suit. He says that there is urgency because the Defendants’ film Phillauri, alleged to be in violation of the Plaintiffs’ copyright in their 2013 Gujarati, Bhojpuri and Nepali film Mangal Phera, is slated for public theatrical release just a few day hence — this very Friday, 24th March 2017.
The Plaintiffs say that they learnt on 24th February 2017 from a trailer dated 6th February 2017 that the Defendants were releasing their film Phillauri a month later, i.e., this Friday, 24th March 2017. From the trailer the Plaintiffs believed that there were substantial similarities and Phillauri was a copy of Mangal Phera. In paragraph 16 of the plaint, there is a tabulation set out of the so-called similarities. There are 20 points listed. Of these several are evidently frivolous: Item 16 (“The background showing a palace”); Item 17 (“Different angles of shot of the introduction of the love interest whose body the Spirit possesses”); Item 18 (“Love scenes (various) of the person whose body is possessed with his love interest”); Item 19 (“Item song depicting celebration”); and Item 20 (“The emotions crying scene Spirit possessed person”). I will put this aside. I will look instead at what the Plaintiffs say is original and unique. Mr D’Costa has taken me through this table. He says the ‘originality’ lies in the narrative of an accursed woman being forced to marry a tree only to discover there resides in it a spirit to which (or whom) she is then wedded. The spirit emerges from the tree, claims to be her husband and this prohibits her from marrying the male protagonist of the film. The film is some sort of horror film. Mr D’Costa readily concedes that from this point on, the treatment by the Defendants in Phillauri is entirely different and he claims no copyright in the rest of it. It is his case that the copyright resides in this narrative trajectory to the point where the spirit emerges from the tree and proclaims himself to be the female protagonist’s wedded spouse. This is the original work of the Plaintiffs, one never conceived before. He does not claim originality in the concept of a woman being ‘manglik’ or of the ritual or tradition of her being forced to marry a tree, something that he describes as ‘traditional’ in our society. He says that all that the Defendants have done is to switch the gender of the characters: the protagonist in Phillauri is male, not female, and the spirit in Phillauri is female, not male. In his submission, this is a distinction without a difference because the original concept or ‘kernel’ has been lifted and copied in its entirety. This is the sum totality of his case. In fairness, he has not said that the whole of Phillauri is a shot-by-shot or scene-by-scene copy. According to him, the originality lies in the sequencing and narrative up to the point of the ghost or spirit emerging from the tree, in turn based on a known tradition, ritualism or religious practices in this country and their societal consequences. He does say the Defendants have copied the ‘basic idea and concept’ from the Plaintiffs’ film of 2013, and if anyone should view the two works side-by-side (I imagine that might be difficult, and he means one after the another), he or she would inevitably conclude that the Defendants’ later work Phillauri is a substantially slavish imitation of the Plaintiffs’ prior original work Mangal Phera.
The next argument from Mr D’Costa that the concept of a ‘manglik’ man marrying a tree is unknown and that such a man must instead performing a ‘yagna’ to rid himself of his accursed condition. If that is so, it is surely a self-defeating argument, for it makes the Defendants’ treatment and film if not unique at least sufficiently distanced from the Plaintiffs’ work. In any case, this is entirely irrelevant to the Plaintiffs’ cause; the fact that the Defendants have not adopted what Mr D’Costa claims is the ‘traditional’ ritual applicable to a male ‘manglik’ does not on its own make the Plaintiff’s work original. To succeed in such an action, a plaintiff must first demonstrate originality in his or her own work, not merely show the lack of it in the defendant’s. He must then show sufficient similarity between the defendant’s work and his.
Both must be shown. In this case, neither is, at least at this prima facie ad-interim stage. A ‘manglik’ woman being married to a tree that has a spirit in it is not unique or original; nor is the emergence of said spirit from aforesaid vegetation. Mr D’Costa’s concession that his claim stops at this, and the rest of the Defendants’ work is nothing like his clients’ is fatal to their cause. The presentation of stills from the two works is even more unfortunate, for if this demonstrates anything it is that the Defendants’ work is a wholly different one from that of the Plaintiffs’, and in almost every single respect that matters in a copyright infringement action.
It is impossible on this consideration to hold that there is originality of the kind Mr D’Costa claims, viz., in the emergence of a spirit from a tree to which a living being said to be cursed with bad luck is forced into marriage. Beyond this, nothing is shown as a similarity, and even this, prima facie, it is not possible to say is original. The claim, in its entirety, is in a ‘central idea’. Whether or not that idea is central is irrelevant. A spirit may or may not reside in a tree. Copyright does not reside in an idea. It is not demonstrated, prima facie, that the Plaintiffs’ expression of that idea has been illicitly copied by the Defendants. Such similarities as we find are not unique, nor significant, and almost all of them can be traced to something in the public domain. The differences are too acute to ignore.
Dr Tulzapurkar for the 1st Defendant points out that, apart from the obvious differences, the delay in bringing suit cannot be accidental. On their own showing, the Plaintiffs knew about the Dfendants’ film sin ce 24th February 2017. They knew of the rELease date of 24th March 2017. From that date of knowledge, i.e., for the last four weeks, they have chosen to wait, and have not come to court until a mere three days before the release of the film. They have only served a copy of the plaint and Notice of Motion on the Defendants only at 7.00 p.m. last evening and have sought this morning urgent circulation. By this time 800 theatres countrywide have been booked for release. Distribution rights have been created.
Third party rights have intervened. There cannot be any question of irreparable injury to the Plaintiffs in a situation such as this or of the balance of convenience favouring the Plaintiffs even assuming that a prima facie case is made out, which in his submission, it is not. He submits that it is not enough to make out some prima facie case; to get an injunction of this kind, the Plaintiffs must make out so overwhelming a prima facie case that all other considerations pale into insignificance. Unless I conclude that the Plaintiffs have indeed made out a case of this strength, in his submission, no injunction can or should follow.
I agree with Dr Tulzapurkar on all counts. I see no vestige of a prima facie case for the grant of ad-interim relief. Certainly, thebalance of convenience can in no sense be said to be favour the Plaintiffs. It is clearly with the Defendants. As to the question ofirretrievable injury, I notice that at no point did Mr Saboo or Mr D’Costa offer or volunteer to provide sufficient security — orindeed any kind of security — should the Plaintiffs’ Motionultimately fail to secure the Defendants against loss.
I also have, as I said in the beginning, a far more fundamental issue with this approach and this so-called litigation strategy or courtroom gambit. I am now making it clear once and for all that these attempts at snatching last-minute injunctions, unfairly prejudicing the other side, and putting other litigants to real hardship (not mere inconvenience), let alone putting Courts and their infrastructure under pressure, will not be tolerated. Our Courts are not meant for these frivolities. They are not meant as playgrounds where any person with a fanciful notion can come at the last minute and demand as of right that all other work be set aside and all other concerns be relegated to second place. I have even today before me a courtroom packed with lawyers and litigants. Parties in other actions are patiently waiting their turn. There are as many as three separate listings today, each in double digits. While Mr D’Costa, Mr Saboo and their clients take liberties with judicial time, this comes at the cost of others who have done nothing wrong. I have no means of compensating any of the others who have waited their turn, having come to court today in the reasonable expectation that their cases will be taken up. I can only apologize to these many others; and I must do so because I hear no hint of apology or regret from Mr D’Costa or Mr Saboo. There is not much more I can do. But I can certainly make it clear to the Plaintiffs that having gambled with the court’s time, and having ‘taken their chances’, they will also now take the consequences. I made this clear to Mr Saboo when, despite everything I told him, and told him again and again, he insisted on being given an early hearing.
I am refusing all ad-interim relief. The Notice of Motion will come up in its ordinary course. I set no date for it and I am not setting for any Affidavit in Reply either. The Defendants will file their Affidavit in Reply as and when they think it is appropriate. I stress this again. I do not care whether that Affidavit in Reply takes one week, one month, one year or more. The Defendants will take their time over it.
Now, to the question of costs. I will not and cannot permit the Plaintiffs to escape like this. This is not a question of reparations to the Defendants. This is also not a question of taking some arbitrary measure either of costs or as to the person to whom such costs must be paid. The following order is studiedly and determinedly meant to be an indicator not only to this Plaintiff but to all future litigants not to attempt to take our courts for granted. Our time is our scarcest resource. We will not have it have squandered in this fashion to indulge these fanciful claims. Pragmatism makes it impossible to direct payment of costs to all those very many other litigants who were forced to wait or to have their cases postponed to another day, though that is perhaps the correct thing to do.
The meaning is plain. In an action under the Commercial Courts Act, costs follow the event. The losing party pays. If it is not to pay, i.e., if an order of no costs is to be made, then reasons are required. The conduct of the parties is relevant, including the gravity or frivolity of the claim, and whether or not judicial time is wasted. The earlier cap on compensatory costs is removed. The statutory intent is equally plain: no litigant in the commercial division can ordinarily escape a litigation loss without an accompanying order of costs. The amendment contemplates actual costs and compensatory costs both.
I must have regard to the conduct of these Plaintiffs: the manner in which they deliberately delayed coming to court, letting valuable third party rights intervene in the interregnum, wasted judicial time, suppressed material from the plaint such as the reply from the advocates for Defendants Nos. 2 to 5, failed to furnish any explanation for not responding to the 1st Defendant’s advocate’s reply of 10th March 2017, not caring even to lodge their Motion and then insisting on an immediate hearing only to be wholly unable to substantiate even a glimmer of a prima facie case. Not to award costs in these circumstances would be to encourage frivolity in litigation.
Without a word of protest, the Defendants have gathered their legal team. The costs must be considerable. Given the number of lawyers appearing, actual costs will almost certainly be higher than what I intend to award. On the other hand, the Plaintiffs claim their film was a smash hit, albeit in regional languages. They lay claim to international awards and much recognition.
The Plaintiffs will pay the costs quantified at Rs. 5 lakhs. They will make payment of these costs within a period of two weeks from today. For reasons that suggest themselves, I will avail of the liberty to ‘deviate’ from the mandate of Section 35 of the CPC as amended by the Commercial Courts Act to direct that half these costs will be paid to the Legal Aid Cell and the remaining 50% to the Tata Memorial Hospital. Both are worthy causes. The latter because it is a service for the indigent who most need access to justice, and the former for its service to society.