Office Location

Delhi:

E-5, 2nd Floor, Defence Colony
New Delhi - 110024
Tel : 011-24336744

----------------------------------------

Mumbai:

Office No. 1410, 14th Floor, Maker Chamber V, Nariman Point, Mumbai
Tel : +91 22-22873499

----------------------------------------

Gurgaon:

Level 18, One Horizon Center, Golf Course Road, DLF Phase 5, Sector 43, Gurgaon 122002, India
Tel : +91 124 668 8146 / +91 124 668 8147

----------------------------------------

Mumbai (Entertainment and Media Practice)

Office No. 213, 2nd Floor, A-wing, Crystal Plaza, Andheri Link Road, Andheri (W), Mumbai.
Tel : 022-62360762

----------------------------------------

Mumbai (Corporate and Transactional Practice)

909/A, Capital Building, Bandra Kurla Complex, East Mumbai- 400098

----------------------------------------

Bangalore:

21/2, 1st Main Road,
Opp Indian overseas Bank,
Gandhinagar,
Bengaluru - 560009

----------------------------------------

Kanpur:

77A, Cantt., Kanpur - 208004

Taking chances with Courts may lead to severe consequences- The Phillauri Case

There have been several instances when the Indian judges have come down heavily on litigants for indulging the court’s time in frivolous litigation. A recent example can be found in the judgment passed by the Hon’ble Bombay High Court Justice GS Patel, in the case of “Dashrath B Rathod & Ors v Fox Star Studios India Pvt Ltd.

The plaintiffs in this case were writer, actor, lyrists and production house.

The defendants are production and distribution companies and directors/ scriptwriter of the film “Phillauri” which has recently hit the theatres across the country.

In this suit, the plaintiffs claimed copyright infringement by the defendants in making their film which was based on the unique and novel idea conceptualised by the plaintiffs and portrayed in their movie “Mangal Phera”. The plaintiffs alleged that the defendants’ film, “Phillauri”, had significant similarities with their film “MangalPhera”, which was originally released in Gujarati in 2013, and then remade in Bhojpuri and Nepali.

Reluctant to hear the petition on urgent basis, Justice GS Patel warned the plaintiffs that in the event that their claim was found to be frivolous, and they lost the case, severe penalties would be charged. Despite the unequivocal warnings issued to them, the plaintiffs pressed for urgent disposition of the case, citing the nearing release date of the contended movie, “Phillauri” as the reason. Justice Patel sternly labelled granting priority to the suit as a case of unconscionable indulgence, but relented, and allotted the case an immediate slot for a hearing.

It was observed that no Notice for Motion had been filed, and that the suit was wrongly brought before him; whereas it should have been filed before the Commercial Division of the court, in keeping with the provisions of the first proviso to Section 7 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

So far as the issue of infringement related, submissions and counter submissions were being made to highlight how the movie “Phillauri” was indeed a act of plagiarism by defendants. There were detailed tabulations made in the plaint highlighting the similarities between the movies, though most of them were disparaged by the judge citing them as frivolous.

The judge noted that the primary claim was the infringement of copyrights held by the plaintiffs to “Mangal Phera”, which was a feature-movie about a ‘manglik’ girl who was married off to a tree in order to qualify her for marriage to the person of her choice. The plaintiffs alleged that the defendants’ film, “Phillauri” was based on the same premise, that of marrying a ‘manglik’ off to a tree in order to render them eligible to marry the person of their choice. Justice Patel went on to note that the plaintiffs contend that the defendants have copied the ‘basic idea and concept’ of their film, but do not maintain that the whole of “Phillauri” is a shot-by-shot or scene-by-scene copy; but they do allege that “Phillauri” is a substantially slavish imitation of the Plaintiffs’ prior original work “Mangal Phera”.

The judge pointed out with humour, the ill-advised wording of the argument, noting that viewing both movies side-by-side, as the counsel for the plaintiffs argued, would be difficult, at best. Following these submissions, the judge went on to finish his narration on the facts of the case. He found, that the facts laid out by the plaintiffs were incomplete at best, and perhaps even deliberately misleading. The plaint made no mention of the replies received by the plaintiffs from the defendants, and went on to state that the Defendants never replied to the Plaintiffs’ Advocates notice. To compound matters, the counsel for the plaintiffs attempted to provide the judge with colour print-outs they claimed were stills from the two movies. The judge noted that he was deviating from his usual policy, and accepted the submissions, but put it on record that he disapproved of the fact that they were not made a part of the plaint. Even so, the Judge found the submissions to be hurtful to the cause of the plaintiffs, as they clearly showed that “Phillauri” was not a scene-by-scene copy of “Mangal Phera”. Mr. D’ Costa then invited the attention of the judge to a case law submitted as a print-out from an unofficial source, that was not accepted by the court. The Judge remarked on the case law, “There can be no copyright in a mere idea or a concept. It is in the expression of that concept or idea and the manner in which it is presented or the manner in which it is developed or portrayed that enjoys protection”. Copyright does not reside in an idea. It could not be demonstrated, prima facie, that the Plaintiffs’ expression of that idea had been illicitly copied by the Defendants. Such similarities, the court found, were not unique, nor significant, and almost all of them could be traced to something in the public domain. The differences were too acute to ignore.

The Counsel for the defendants pointed out that the delay caused by the plaintiffs in bringing the suit to court could not be accidental, as the plaintiffs had ample time between the release of the trailer (which instilled in the plaintiffs a cause for concern), and the date of filing of the suit. By then 800 theatres countrywide had been booked for release. Distribution rights had been created. Third party rights had intervened. Without an overwhelmingly strong prima-facie case made out by the plaintiffs, the Judge was of the opinion that no injunction was warranted. The Judge refused all ad-interim relief. The Judge then addressed a far more fundamental issue with what he called “the so-called litigation strategy or courtroom gambit”. He made 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, would not be tolerated. He berated the plaintiffs at great length, for their frivolous plaint, the unprofessionalism displayed in their submissions, and the stubborn and wrongful urgency with which they pressed for the attention of the courts at the expense of other litigants. The Judge reminded the plaintiffs that he had warned them of severe consequences, and referred to The Commercial Courts Act’s amendments to the CPC [section 35A(2)] and a Supreme Court case, Dnyandeo Sabaji Naik v Mrs Pradnya Prakash Khadekar &Ors ,to justify penalising the plaintiffs with costs amounting to Rs. 5 lakh; half payable to the Legal Aid Cell, and the other half to Tata Memorial Hospital, both noble causes helping those in need.

By penalising frivolous litigants, potential frivolous litigations may be discouraged. The legal resources of our judicial system, already spread thin by the sheer volume of cases across the country, should not be wasted indulging persons who file a suit to “take their chances” with the court. The judge made it clear that Courts cannot be regarded 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. The unapologetic conduct of the plaintiffs and their counsels leave very little room for any sympathy, and the law certainly leaves none.