CS(COMM) 935/2016 · including providing coaching services. She has an Honors degree of Bachelor of...

IA 8803/2016 in CS(COMM) 935/2016 and IA 13791/2016 in CC 85/2016 of 12

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 28th

July, 2017

Decided on: 4th

August, 2017

+ CS(COMM) 935/2016

NEETU SINGH ..... Plaintiff

Represented by: Mr. Chander M Lall, Sr.Adv.

with Ms. Rajeshwari, Ms.

Nancy Roy, Mr. Rupin Bahl,

Mr. Sushoban, Advs.

versus

RAJIV SAUMITRA & ORS ..... Defendant

Represented by: Mr. P.V. Kapur, Sr. Adv. with

Ms. Murari Tiwari, Mr. Rahul

Kumar, Ms. Ankita Tiwari, Mr.

Vimal Nagrath, Ms. Kaveri

Gupta, Mr. Sidhanth Kapur,

Ms. Pratibha, Advs.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

IA 8803/2016 (u/O XXXIX R 1&2 by plaintiff) & IA 13791/2016 (u/O

XXXIX R 1&2 by D-1&2)

1. Ms. Neetu Singh, the plaintiff in CS(COMM) 935/2016 has filed the

present suit inter-alia praying for a decree of permanent injunction

restraining the defendants, their agents, dealers, distributors, etc. from

reproducing, publishing, distributing, selling, offering for sale the literary

work “English for General Competitions” and any other artistic work

copyright whereof is vested in the plaintiff besides damages.

2. The claim of Neetu Singh is that she is a renowned author engaged in

the business of providing services in relation to ‘Education, training &


educational consultancy in the field of engineering, medical, para-medical,

dental, nursing, marketing, management and information technology’

including providing coaching services. She has an Honors degree of

Bachelor of Science (B.Sc from Vinoba Bhave University) and a degree in

Law (LLB from Campus Law Centre, Delhi University). Defendant No.1 is

the husband of plaintiff and owns, runs and manages defendant No.2 i.e.

‘Paramount Coaching Centre Pvt. Ltd.’ and defendant No.3 is the key

publishing house of defendant No.1.

3. The case of the plaintiff is that she started an education and training

institute namely ‘Paramount Coaching Centre’ in 1982 which earned

goodwill and reputation. Around 2006 she married the defendant No.1 who

was a teacher at the said coaching centre. In order to expand the business

plaintiff and defendant No.1 formed and incorporated a company in the

name and style of ‘Paramount Coaching Centre Pvt. Ltd’ on 30th

November,

2009 with plaintiff and defendant No.1 as its Directors. During the progress

as a trainer/ academician/ educational consultant, the plaintiff decided to

write books on various subjects so as to bridge the gap between the

instructional and teaching material available in the market and the actual

needs of the students for understanding the concepts in the relevant subjects

including those required for success in competitive examinations. After

working and researching on various subjects, compiling educational data,

question banks along with answers and from her own skill, labour and hard

work, plaintiff wrote and authored several books under the titles “Ënglish for

General Competitions–From Plinth to Paramount Vol-I, Rasayan Vigyan-

Samanya Pratiyogita Hetu, Jeev Vigyan-Samanya Pratiyogita Hetu,

Bhartiya Arthvyavastha-Samanya Pratiyogita Hetu, Bhautik Vigyan-


Samanya Pratiyogita Hetu, Bhartiya Rajvyavastha-Samanya Pratiyogita

Hetu, Computer-For Banking Exam, Marketing-For General Competition,

Physics-For General Competition, Itihas-Samanya Pratiyogita Hetu,

Geography-For General Competition, Indian Economy-For General

Competition, Indian Polity-For General Competition, Banking-For General

Competition, Biology for General Competition, Chemistry for General

Competition, Arithmettic for General Competitions where concept is

Paramount Vol-2, Ankganit Samanya Pratiyogita Hetu where concept is

Paramount Vol-I, Interview for General Competition-where guidance is

Paramount and SSC (CGL) TIER-II (Model Paper).

4. The claim of the plaintiff is that the aforesaid literary work are original

work of the plaintiff created and authored for the first time and on

applications filed she has been granted copyright certificates in the literary

works mentioned above. The said books were written and authored by the

plaintiff between 2012 to 2014 during the period plaintiff was married to

defendant No.1 and the copyright was secured by the plaintiff to the

knowledge of defendant No.1 without any objection from him. The plaintiff

claims that she published the aforesaid books through her proprietary

concern ‘Paramount Reader Publication’ and thereafter ‘Paramount Reader

Publication OPC Pvt. Ltd.’ was formed and incorporated on or about 29th

January, 2015. The said Paramount Reader Publication was a one person

company and was given the right to publish the books authored by the

plaintiff to the exclusion of any other party. The rights to publish books was

never licensed, transferred or assigned to any person including defendant

No.1 or 2 by the plaintiff. The literary works got printed and published by

the plaintiff are very useful to the students preparing for various competitive


examinations including entrance examination such as Bank PO/ Clerks/

CWE/ PRT/ NTT/ TGT/ CTET/ LDC/ CDS/ NDA/ DP etc. It is further

stated that after May 2015 the relationship between plaintiff and defendant

No.1 got soured and they were involved in several civil cases as well as

criminal complaints including concerning control of business of defendant

No.2. In CS(OS) 2528/2015 filed by defendant No.2, he claimed rights in

the mark ‘PARAMOUNT’ wherein vide an interim order dated 27th January,

2015 plaintiff was restrained from using the mark ‘PARAMOUNT’. An

appeal filed against the said order was disposed of by a consent order on 21st

March, 2016 wherein the plaintiff agreed not to use the mark

‘PARAMOUNT’. Though there are number of other litigations, however in

relation to the copyright and the ownership in the artistic works of the books

named above, there is no other litigation pending between the parties.

5. The grievance of the plaintiff is that one of the books authored by her

titled as ‘English for General Competitions –From Plinth to Paramount’ was

authored by the plaintiff on or about May 2012 and was an instant success in

the market. The book was initially published in July 2012 and thereafter in

2014 and 2016. It was rated as the best seller on the ‘amazon’ website and is

an excellent guide in case of competitive examination. The plaintiff was

granted copyright in the said literary work vide certificate No. L-

62916/2015. In February, 2015 the plaintiff amended the title of her book to

‘English for General Competitions’ and was continuing to publish under the

said title. Every since 2012 the books authored by plaintiff were published

by ‘Paramount Reader Publication OPC Pvt. Ltd.’ now known as K.D.

Publications Pvt. Ltd. and were marketed or distributed or sold by defendant

No.2 after purchasing the original books from Paramount Reader


Publications OPC Pvt. Ltd. Neither the defendant No.1 nor any other person

has till date challenged her copyright in the literary works published. In and

around December 2015 the plaintiff learnt that defendant No.1 was illegally

copying and publishing certain books authored by plaintiff and invoking

Section 63 of the Copyright Act plaintiff filed a criminal complaint at

Mukherjee Nagar Police Station where after Police seized around 6000

incriminating copies. The plaintiff also filed a complaint under Section 63 of

the Copyright Act read with Section 420/485/486 and 120 IPC with the

learned CMM, Mukherjee Nagar.

6. In June, 2016 plaintiff learnt that defendant No.1 in connivance with

defendant No.2 published its first lot of books under the title “English for

General Competitions - From Plinth to Paramount”. There is no mention of

any author in the book. The book is verbatim copy of the plaintiff’s book

under identical title and the graphic representations of two mountains has

also been copied by the defendants in toto with a slight colour variation.

Thus an ordinary unwary student would find that the cover of the book has

two mountains and identical contents and would be deceived and mislead

into believing that the book in fact originated from the plaintiff and to

confuse the students further the defendants have priced the book at ₹150/-

while the plaintiff’s book is being sold at ₹300/- per copy. Thus defendants

have not only copied the graphic representation on the cover of the book but

the entire contents of the book in toto and verbatim without any change.

Even the mistakes appearing in the plaintiff’s publication have been copied

by defendants in their infringing publications.

7. In response to this claim of the plaintiff, defendant No.1&2 filed a

written statement and also a counter claim. In the written statement and


counter claim the case of the defendants in nutshell is that the plaintiff is not

the exclusive owner/ author of the book. She authored / compiled the books

with the help of a team while she was admittedly working as a Director of

defendant No.2 from the year 2012 to 2014 and even as per the plaintiff the

relations between the plaintiff and defendant No.1 soured in May 2015.

Thus the plaintiff cannot claim any copyright in the books which were

authored by and on behalf of the defendant No.2 who employed its entire

team including the plaintiff who was then one of the Directors of defendant

No.2. It is the case of the defendant No.1 that defendant No.1 was running a

coaching centre in the name and style of M/s. Paramount Coaching Centre at

204, 2nd

Floor, Satija House, Commercial Complex, Dr. Mukherjee Nagar,

Delhi under his sole proprietorship when in July 2005 the plaintiff came in

contact with defendant No.1 and sought financial assistance. Defendant

No.1 allowed plaintiff to take English classes in his coaching centre. Slowly

on being lured and on the insistence of the plaintiff, defendant No.1

converted Paramount Coaching Centre into a private limited company with

Plaintiff and defendant No.1 as its two Directors, as minimum two Directors

were required as per the Companies Act, 1956. On 12th March, 2006

marriage between the plaintiff and defendant No.1 was solemnized on the

plaintiff furnishing an affidavit on oath that she was a spinster at the time of

marriage, though the fact is that she was earlier married. Thus after

conversion of proprietorship concern of defendant No.2 to private limited

company, the defendant No.1 retained his status as Managing Director but

gifted 50% of the shareholdings to the plaintiff and no consideration was

paid to the plaintiff. The plaintiff along with the family members started

controlling the key positions and in conspiracy with her other family


members incorporated companies like Paramount Reader Publication OPC

Pvt. Ltd. and thereafter M/s. K.D. Campus Pvt. Ltd. in early 2015. The

plaintiff entered into a competing business with defendant No.2 despite

remaining the Director of defendant No.2 and started transferring the

business of defendant No.2 to her aforesaid individual companies.

Constrained by the acts of plaintiff, defendant No.1&2 filed Civil Suit being

CS(OS) 2528/2015 wherein injunction was passed in favour of defendant

No.1 and against plaintiff and an appeal thereon was withdrawn by the

plaintiff in view of the settlement arrived at between the parties. Defendant

No.1 applied for the trademark of ‘PARAMOUNT’ with label which stands

in the name of the defendant No.2. With this claim in the written statement

the defendant No.1&2 filed a counter claim and the application under Order

XXXIX Rule 1 & 2 CPC. Learned counsel for the defendant relies upon the

decision of the Supreme Court reported as (1972) 2 SCC 696 Ram Pershad

Vs. The Commissioner of Income-tax, New Delhi and AIR 1989 Kerala 49

V.T. Thomas and Ors. Vs. Malayala Manorama Co. Ltd.

8. Based on the facts noted above, learned counsel for the plaintiff

contends that plaintiff being the author of the literary work and there being

no contract of service between the plaintiff and defendant No.2 in terms of

Section 17 of the Copyright Act, ownership of the literary work vests in the

plaintiff. Further since the plaintiff owns registration of the copyright the

same is a prima facie evidence of ownership, hence the defendants are liable

to be restrained from publishing, selling the books authored by the plaintiff.

To buttress his arguments learned counsel for the plaintiff submits that in the

book authored by the plaintiff her name as a author is mentioned whereas in

the publication of the defendant name of the author is not mentioned. The


fact that the books of the defendant are verbatim copy of the plaintiff’s

literary work is evident from the fact that the printing errors in the plaintiff’s

work have also been copied literally without any correction. Learned

counsel for the plaintiff also relies upon certain admission of the defendants

in the written statement and counter claim wherein the defendant No.1&2

admit the plaintiff to be one of the authors though they claim that the

employees of the defendant No.2 helped the plaintiff, however no name of

any employee has been mentioned. It is further admitted in the written

statement and counter claim that the plaintiff stole material and wrote the

book. It is further the case of defendant that the plaintiff owned a

proprietorship firm which was converted into a wholly owned private entity.

Plaintiff published the book under her own name. Learned counsel for the

plaintiff further submits that there is no material with defendant to show that

defendant No.2 was the employer of plaintiff thus claiming to be the owner

of the copyright in terms of Section 17(c) of the Copyright Act. No money

has been shown to be paid to the plaintiff. Further assignment if any in a

literary work has to be in writing as per Section 19 of the Copyright Act and

in the absence thereof there has been no assignment of the literary work by

the plaintiff who is the author of the work.

9. Learned counsel for the defendant relies upon an admission of the

plaintiff in CM No.15460/2016 in FAO(OS) 60/2016 wherein the plaintiff

demanded salary from the defendant showing that the plaintiff was an

employee of defendant No.2. Learned counsel for the defendant further

contends that with an educational qualification of B.Sc., LLB the plaintiff

cannot have individually authored the number of books as mentioned in Para

7 and thus the stand of the defendant Nos. 1&2 in the written statement and


counter affidavit that the plaintiff is not the exclusive author but has written

and compiled the books with the team members of defendant No.2 is

probabilized. Further since the plaintiff as Director of defendant No.2 was

acting in a fiduciary capacity, it cannot be held that the plaintiff owned the

copyright in the literary work. It is submitted that the claim of the plaintiff is

barred under Section 166 of the Companies Act.

10. Learned counsel for the defendant further contends that admittedly the

plaintiff was a Director of the defendant No.2 when the books were written

and thus had a fiduciary duty as a Director which is greater than that of an

agent and the ownership for the books vested in defendant No.2 on whose

behalf the plaintiff along with other team members authored the books. The

plaintiff has admitted that she has authored all the books from the year 2012

to 2014 when she was admittedly working as a Director of defendant No.2.

Further the plaintiff has been injuncted from using the trademark

PARAMOUNT and since the plaintiff has surreptitiously obtained the

copyright license for the above literary work, defendants have filed

objections to the said copyright license issue.

11. Sections 17 of the Copyright Act reads as under:

“17 First owner of copyright:- Subject to the provisions of

this Act, the author of a work shall be the first owner of the

copyright therein: Provided that—

(a) in the case of a literary, dramatic or artistic work made

by the author in the course of his employment by the proprietor

of a newspaper, magazine or similar periodical under a

contract of service or apprenticeship, for the purpose of

publication in a newspaper, magazine or similar periodical, the

said proprietor shall, in the absence of any agreement to the

contrary, be the first owner of the copyright in the work in so

far as the copyright relates to the publication of the work in any

https://indiankanoon.org/doc/1554057/


newspaper, magazine or similar periodical, or to the

reproduction of the work for the purpose of its being so

published, but in all other respects the author shall be the first

owner of the copyright in the work;

(b) subject to the provisions of clause (a), in the case of a

photograph taken, or a painting or portrait drawn, or an

engraving or a cinematograph film made, for valuable

consideration at the instance of any person, such person shall,

in the absence of any agreement to the contrary, be the first

owner of the copyright therein;

(c) in the case of a work made in the course of the author's

employment under a contract of service or apprenticeship, to

which clause (a) or clause (b) does not apply, the employer

shall, in the absence of any agreement to the contrary, be the

first owner of the copyright therein;

[(cc) in the case of any address or speech delivered in public,

the person who has delivered such address or speech or if such

person has delivered such address or speech on behalf of any

other person, such other person shall be the first owner of the

copyright therein notwithstanding that the person who delivers

such address or speech, or, as the case may be, the person on

whose behalf such address or speech is delivered, is employed

by any other person who arranges such address or speech or on

whose behalf or premises such address or speech is delivered;]

(d) in the case of a Government work, Government shall, in

the absence of any agreement to the contrary, be the first owner

of the copyright therein;

[(dd) in the case of a work made or first published by or under

the direction or control of any public undertaking, such public

undertaking shall, in the absence of any agreement to the

contrary, be the first owner of the copyright therein;”

12. As noted above, save and except proviso ‘c’ where a work is made in

the course of the author’s employment under a contract of service or

apprenticeship to which clause ‘a’ or clause ‘b’ does not apply the employer







shall, “in the absence of any agreement to the contrary” be the first owner of

the copyright therein. Admittedly the plaintiff was working as a Director of

defendant No.2 when the literary works were made from the year 2012 to

2014. However the defendants have not placed on record any material to

show that the literary work was authored as a part of the duties and

obligations of a Director of defendant No.2. In this regard neither any

agreement nor the articles or memorandum of association of the company

has been placed on record. In the absence of any terms and condition

describing that the literary work was also a part of the duties and obligations

of the plaintiff in her capacity as a Director of the defendant No.2, the plea of

the defendants based on the decision of the Supreme Court in Ram Pershad

and V.T. Thomas (supra) cannot be accepted.

13. In Ram Pershad (supra) relied upon by learned counsel for the

defendants the Supreme Court held that a director of a company is not a

servant but an agent of the company as a company acts through its directors.

The director of a company may as well be an employee and where he is so

employed the relationship between him as the managing director and the

company may be similar to a person who is employed as a servant or an

agent for the term ‘employed’ as facile enough to cover in all these

relationships. The nature of employment may be determined by the articles

of association of a company and/or the agreement, if any, under which a

contractual relationship between the director and the company has been

brought about, whereunder the director is constituted an employee of the

company. As noted above, in the present case the defendant has not placed

on record any document to show that the plaintiff was acting as an employee

of defendant No.2 when the literary works were created rather the copyright


registration in favour of the plaintiff was granted while the plaintiff, to the

knowledge of defendant No.1, was a director of defendant No.2 from the

year 2012-2014.

14. While dealing with the concept of ‘fair use’ which act may lead to

non-infringement of the copyright as per Section 52 of the Copyright Act,

the Division Bench of this Court in the decision reported as The Chancellors,

Masters and Scholars of University of Oxford & Ors. Vs. Rameshwari

Photocopy Service & Ors. 2016 (235) DLT 409, distinguished the use of

copyrighted work for the purpose of teaching/studies and for commercial

purpose. In the present case the defendants, after making the copies of the

study material which is in the form of the books, is selling the same to the

students. Thus, the activity of the defendants is commercial and profit

making.

15. In view of the discussion aforesaid, IA No.8803/2016 filed by the

plaintiff is disposed of granting interim injunction in favour of the plaintiff

and against the defendants in terms of prayers (a) and (c) and IA

No.13791/2016 filed by the defendants No.1 & 2 is dismissed.

(MUKTA GUPTA)

JUDGE

AUGUST 04, 2017

‘ga’

CS(COMM) 935/2016 · including providing coaching services. She has an Honors degree of Bachelor of...

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