INDIAN PERFORMING RIGHTS SOCIETY LTD v. SANJAY DALIA & Anr.

the provisions of law u/ss. 62 and 134 were passed, was A section 20 of the CPC. It did not provide for the plaintiff to institute a suit except in accordance with the provisions contained in· section 20. The defect in existing law was inconvenience/deterrence caused to the authors suffering from financial constraints on account B of having to vindicate their intellectual property rights at a place far away from their residence or the place of their business. The said mischief or defect in the existing law was sought to be removed. Hence, the remedy was provided incorporating the provisions of section 62 of C the Copyright Act. [Para 23] [235-E-G]

10. The Legislature has never intended that the plaintiff should not institute the suit where he ordinarily resides or at its Head Office or registered office or where D he otherwise carries on business or personally works for gain where the cause of action too has arisen and should drag the defendant to a subordinate office or other place of business which is at a far distant place under the guise of the fact that the plaintiff/corporation E is carrying on business through branch or otherwise at such other place also. If such an interpretation is permitted, the abuse of the provision will take place. [Para 23] [236-C-E] F

11. In the instant cases, the principal place of business is, admittedly, in Mumbai and the cause of action has also arisen in Mumbai. Thus, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act cannot be interpreted in a manner so G as to confer jurisdiction on the Delhi court in the aforesaid circumstances to entertain such suits. The Delhi court would have no territorial jurisdiction to entertain it. [Para 23] [236-F-G] H 216 SUPREME COURT REPORTS [2015] 8 S.C.R. A

12. The avoidance of counter mischief to the defendant is also necessary while giving the remedy to the plaintiff under the provisions in question." The provisions of the Copyright Act and the Trade Marks Act provide for the authors/trade marks holders to sue at their B ordinary residence or where they carry on their business. The said provisions of law never intended to be oppressive to the defendant. [Para 24] [236-H; 237-A-C]

13. Heydon's rule is not applicable where the C words of the statute are clear. When the provision is unambiguous and iffrom the provision legislative intent is clear, the court need not call into aid the other rule of construction of statutes such as that of 'mischief'. However, when two interpretations are possible, the D court has to adopt the one which furthers the object as provided in the statute itself. [Para 25] [237-G-H; 238-A B] E F Mis. Hirata/ Rattan/al etc. etc. v. State of U.P. and Anr. etc. 1973 (1) sec 216: 1973 (2) scR 502; Padmasundara Rao (Dead) & Ors. v. State of Tamil Nadu and Ors. AIR 2002 SC 1334: 2002 (2) SCR 383; Grasim Industries Ltd. v. Collector of Customs, Bombay 2002 (4) SCC 297: 2002 (2) SCR 945 ; Busching Schmitz Private Ltd. v. P.T. Menghani 1977 (2) SCC 835: 1977 (3) SCR 312 - relied on. Bennion on Statutory Interpretation - referred to.

14. Strict construction may be avoided or at least G reduced by limiting the remedy where a counter mischief would arise if the remedy provided by the Act was eschewed widely. It may appear to the court that one of the opposing construction of the enactment, if adopted, would operate a mischief of its own. The prospects of this would constitute a negative factor in weighing the H INDIAN PERFORMING RIGHTS SOCIETY LTD. v. SANJAY 21·7 DALIA&ANR. applicability of the construction in question. The court A also has in mind the consequences for the public welfare. Such a counter mischief to the defend.ant w.as unforeseen by Parliament and it is. the court's duty.- fo mitigate the counter mischief. Right to. approach, the court/pursuing the legal remedy cannot be mad.ea.farce B or oppressive as that would not be conduciv.e for the effective administration of justice. [Para27 and·29) [238- F-G; 240-F; 241-C] State of Madhya Pradesh and Anr. v. Narmada Bachao Ando/an & Anr. 2011 (7) SCC 639: 2011 (6)SCR 443 -relied on. Justice G.P. Singh in 'Principles of Statutory Interpretation' by Justice GP. Singh,. 1.21h Edition - referred to. C o

15. It is the court's duty to avoid. hardship, inconvenience, injustice, absurdity and anomaly while selecting out of different interpretations. The doctrine E must be applied with great care and in case absurd inconvenience is to be caused that interpretation has to be avoided. Cases of individual. hardship or injustice have no bearing for enacting the natural construction. [Para 32] [243-B-D] F

16. It can be presumed that Parliament intends that while construing an enactment, the court.will avoid a construction that is unworkable or impracticable, inconvenient, anomalous or illogical as the same is G unlikely to be intended by the Parliament. Common sense construction rule should be taken recourse, in certain cases. [Para 33] [247-A-C]

17. There will be no violence to section 62 of H Copyright Act and section 134 of Trade Marks Act by the 218 SUPREME COURT REPORTS [2015] 8 S.C.R. A interpretation adopted by this Court and the right of the plaintiff which has been conferred under the provisions, also remains intact. There is no question of giving disadvantage to the plaintiff vis-a-vis the defendant, but both will stand to gain by proper interpretation. [Para B 43] [260-F-G] Sonic Surgical v. National Insurance Co. Ltd. 2010 (1) SCC 135: 2009 (15) SCR 265; Rosali V. v. Taico Bank and Ors. 2009 (17) sec 690: 2001 (1) SCR 1169 ; Patel Roadways Ltd., Bombay v.Prasad Trading Co. etc. 1991 (4) sec 270: 2001 (1) SCR 1169; Dhodha House v. S. K. Maingi 2006 (9) SCC 41: 2005 ( 5) Suppl. SCR 751 - relied on. Daburlndia Ltd. v. KR. Industries 2008 (10) SCC 595: 2008 (9) SCR 652 - held inapplicable. Union of India & Anr. v. Deoki Nandan Aggarwal 1992 Supp. (1) SCC 323; Paragon Rubber Industries & Ors. v. Pragathi Rubber Mills & Ors. 2014 (57) PTC 1(SC); New Moga Transport Co., through its Proprietorv. United India Insurance Co. Ltd. & Ors. 2004 (4) SCC 677: 2004 (1) Suppl. SCR 623; Smithkline Beecham & Anr. v. Sunil Singhi &Anr. 2000 (1) PTC 321 (Del.); Caterpillar Inc. v. Kai/ash Nichani & Ors. 2002 (24) PTC 405 (Del.); lntas Pfiarmaceuticals Ltd. v. Allergan Inc. 132 (2006) Delhi Law Times 641; Patel Roadways Ltd., Bombay v. Prasad Trading Co. 1991 (4) SCC 270: 1991 (3) SCR 391 ; Ford Motor Co. & Anr. v. C.R. Borman & Anr. 2008 (38) PTC 76 (Del.); Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic India (P) Ltd. & Ors. 2008 (37) PTC 269 Mad.; Hindustan Unilever Ltd. v. Ashique Chemicals & Ors. 2011 (47) PTC 209 (Bom.); Ultra Tech Cement Ltd. & Anr. v. Shree Balaji Cement Industries & Ors. 2014 (58) PTC 1 (Bom.) - referred. to. c D E F G H INDIAN PERFORMING RIGHTS SOCIETY LTD. v. SANJAY 219 DALIA&ANR. - - ., Case Law Reference 1991 (3) SCR 391 referred to Para 8 2004 (1) Suppl. SCR 623 referred to Paras 14, 37 AIR 1943 Cal. 190 referred to Para 14 AIR 1952 Punj. 142 referred to Para 14 AIR 1978 Ori.167 referred to Para 14 (1886) 17 QBD 421 referred to Para 14 (1889) 23 QBD 285 referred to Para 14 2000 (5) Suppl. SCR 743 relied on Para 15 76 ER 637 referred to Para 22 2009 (15) SCR 265 relied on Para 25 2009 (15) SCR 265 relied on Para 25 1973 (2) SCR 502 relied on Para 25 2002 (2) SCR 383 relied on Para 26 2002 (2) SCR 945 relied on Para 26 1977 (3) SCR 312 relied on Para 31 2011 (6) SCR 443 1992 Supp. (1) sec 323 relied on Para 34 referred to Para 35 1991 (3) SCR 391 relied on Para 36 2007 (1) SCR 1169 . relied on Para 36 2004 (1 ) Suppl. SCR 623 referred to 2004 (3) sec 688 referred to 2005 (5) Suppl. SCR 751 relied on Para 37 Para 38 Para 39 2014 (57) PTC 1(SC) referred to Para 40 2008 (9) SCR 652 held• inapplicable Para 41 A B c D E F G H 220 SUPREME COURT REPORTS [2015] 8 S.C.R A 2000 (1) PTC 321 (Del.) referred to Para42(a) 2002 (24) PTC 405 (Del.) referred to Para 42)b) 132 (200.6) DLT 641 referred to Para42(c) 2008 (38) PTC 76 (Del.) referred to Para 42(d) 2008 (37) PTC 269 Mad referred to Para 42(f) 2011 (47) PTC 209 (Born.) referred to Para 42(g) 2014 (58) PTC 1 (Born.) referred to Para42(h) CIVILAPPELLATE JURISDICTION: Civil Appeal No. 10643-10644 OF 2010. B c From the Judgment and Order dated 19.11.2008 in FAO (OS) No. 359 of2007 and order dated 17.12.2008 in the .D review petition being R. P. No. 14 785 of 2008 of the High Court of Delhi at New Delhi. WITH E Civil Appeal No. 4912 of2015. T. R. Andhiarujina, Sudhir Chandra, Dhruv Anand, Lakshmi, Tanvi Misra, Anshuman Upadhyay, Ravin Gargotia, Soumir Ghosal, Vikas Singh Jangra, Anuradha Salhotra, K. V. Mohan, SumitWadhwa, Yatin Grover, ManmeetArora, Faria F Khan, Kavita Wadia, Shashank Tripathi, E. c;. Agarwala for the appearing parties. The Judgment of the Court was delivered by G ARUN MISHRA, J. 1. Leave granted in SLP[C] No.8253 of 2013.

2. In the appeals, the question arising for consideration is as to the interpretation of section 62 of the Copyright Act, H 1957 and section 134(2) of the Trade Marks Act, 1999 with INDIAN PERFORMING RIGHTS SOCIETY LTD. v. SANJAY 221 DALIA&ANR. [ARUN MISHRA, J:] regard to the place where a suit can be instituted by the plaintiff. A

3. The plaintiff/appellant in Civil Appeal Nos. 10643- 44/2010 had filed a suit praying for relief against defendant No.1 so as to prevent infringement of the rights of the plaintiff without obtaining the licence. The defendant owns cinema halls B in Maharashtra and Mumbai where infringement is alleged and the entire cause of action, as alleged in the plaint, has arisen in Mumbai, Maharashtra.

4. Civil Suit FAQ (OS) No. 359/2007 has been filed in c the High Court at Delhi, by virtue of the fact that the Branch Office of the plaintiff is situated at Delhi and the plaintiff is carrying on the business at Delhi. However, it is not disputed that the plaintiff's Head Office is situated at Mumbai. The objection was raised by the defendant with regard to the D territorial jurisdiction of the court at Delhi. The single Bench and the Division Bench of the High Courfhave upheld the objection and held that the suit should have been filed in the facts of the case, in the court at Mumbai. Hence, the impugned order has been questioned in the appeals. E

5. In Civil Appeal arising out of SLP {C] No. 8253/2013 - (Advance Magazine Publishers Inc. & Anr. v. Just Lifestyle Pvt. Ltd.), the suit has been filed with respect to the infringement of the trademark. The registered office of 'Vogue F India" is in Mumbai. The magazine is processed and published in Mumbai. It was submitted that because the plaintiff has branch office at Delhi, it had sufficient ground for invoking the jurisdiction under section 134 of the Trade Marks Act. The plaintiff filed an application seeking an amendment in the plaint G under0rder6 Rule 17 of the Code of Civil Procedure so as to indicate how the court at Delhi would have the jurisdiction. The magazine is sold and circulated to the subscribers at Delhi. The application seeking amendment has also been dismissed by the High Court as even if allowed, amended pleadings H 222 SUPREME COURT REPORTS [2015] 8 S.C.R. I r • A would not confer jurisdiction upon the court. Merely situation of branch office is not enough as no cause of action as per the plaint, has arisen in Delhi. The Division Bench has allowed the appeal and set aside the order passed by the Single Bench, allowing the amendment. The said order has been impugned in SLP [CJ No.8253/2013. B I E D

6. It was submitted by Shri T.R. Andhiarujina, learned senior counsel representing the appellants, that a special right has been conferred under section 62(2) of the CopyrightAct C and section 134 of the Trade Marks Act containing non-obstante clause to the applicability of the Code of Civil Procedure or any other law for the time being in force, and the plaintiff has been conferred a right to file a suit where it carries on its business. That cannot be whittled down by combining with it the cause of action. The impediment of section 20 of the Code of Civil Procedure is not applicable. Section 62(2) of the Copyright Act and section 134 of the Trade Marks Act have no co-relation to the cause O'f·action and suit can be filed where plaintiff resides or carries on his business or personally works for gain. The interpretation made by the High Court is contrary to the aforesaid provisions'."'Convenience of the defendant is not a relevant consideration. The binding decision of this Court in Exphar SA & Anr. v. Eupharma Laboratories Ltd. & Anr [2004 (3) SCC 688] has been violated. The judgment has not been taken into consideration though it was decided earlier to the passing of the impugned decision. Reliance has also been placed on the decisions of this Court in Dhodha House v. S.K. Maingi[2006 (9) SCC 41], Daburlndia Ltd. v. KR. Industries [2008 (10) SCC 595] and various other decisions of the High Court of Delhi viz., Smithkline Beecham & Anr. v. Sunil Singhi & Anr. [2000 (1) PTC 321 (Del.)], Caterpillar Inc. v. Kai/ash Nichani & Ors. [2002 (24) PTC 405 (Del.)], lntas Pharmaceuticals Ltd. v. Allergan Inc. [ 132 (2006) Delhi Law H Times 641] to contend that under the aforesaid provisions G F INDIAN PERFORMING RIGHTS SOCIETY LTD. v. SANJAY 223 DALIA&ANR. [ARUN MISHRA, J.] accrual of cause of action wholly or in part is not necessary at A a place where the plaintiff chooses to file a suit where he is carrying on business.

7. On behalf of the applicants in C.A. Nos. 10643-44/ 2010, Mr. Sudhir Chandra, learned senior counsel, submitted B that while interpreting section 62 of the Copyright Act and section 134(2) of the Trademarks Act, the intention of Parliament is to be gathered from plain and natural meaning. Heydon's 'rule of mischief is not attracted where the words of the statute are clear and unambiguous. There is no challenge C to the vires of section 62 of the Copyright Act. Thus, the court cannot invoke the doctrine of reading down the provisions. Section 62 of the Copyright Act is a special legislation and confers a special right on the plaintiff where it carries on business or resides. Reading the Explanation to section 20 of D the Code of Civil Procedure into section 62 will do violence to the Co(lyright Act. The requirement of cause of action or Explanation as to the corporaticwi of Section 20 C.P.C. cannot be added to the aforesaid prpvisions. Facts of few cases cannot be considered so <1;>to make interpretation of E provisions. Interpretation of the statute is to be made de hors the facts of individual cases. Jne intention of legislation is also clear from the Parliamentary [lebates and where the law has held the field for a long time it should not be unsettled. The decision in Dhodha House (supra) holds the field. As such, if F a different interpretation is to be made, the case should be referred to a larger Bench of this Court. Non-obstante clause cannot be diluted.

8. On the other hand, on behalf of the respondents, it G was submitted that abuse of provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act cannot be permitted at the hands of multi-national corporations to harass the defendant/s. With respect to the suit being filed by H 224 SUPREME COURT REPORTS [2015] 8 S.C.R. A B C 0 E F G H the Corporation, section 20 is not inapplicable. 'Carrying on business' cannot be defined subjectively. Reliance has been placed upon Patel Roadways Ltd., Bombay v. Prasad Trading Co. [1991 (4) SCC 270]. The object of the Parliament behind enacting section 62 of the Copyright Act and section 134 of the Trade Marks Act has to be taken into consideration while interpreting the said provisions. The mischief rule of Heydon has been pressed into service so as to prevent harassment of the defendants and abuse of the said provisions. Court is duty bound to avoid disproportionate counter mischief while interpreting a provision. Public policy and convenience to parties have to be taken into consideration. The interpretation of provisions must be such so as to avoid hardship and absurdity. The decisions relied upon by the appellants have been sought to be distinguished.

9. The Code of Civil Procedure, 1908 contains the provisions under section 20 with respect to institution of the suits where defendant resides or cause of action arose. Section 20 of the Code of Civil Procedure reads thus: "Section 20 - Other suits to be instituted where defendants reside or cause of action arises. - Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction - (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either INDIAN PERFORMING RIGHTS SOCIETY LTD. v. SANJAY 225 DALIA&ANR. [ARUN MISHRA, J.] the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, ac;quiesce in such institution; or (c) the cause of action, wholly or in part, arises. [Explanation]. : A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place." A B

10. In order to amend and consolidate the law relating C to copyrights, the matter was referred to a Joint Committee. The Joint Committee of the Houses submitted the report which contained the object of the provisions of section 62 is that many authors are deterred from instituting infringement proceedings because the court in which the proceedings are to be instituted are at a considerable distance from the place of their ordinary residence. Such impediments should be removed and the proceedings may be institute~"in the local court where the person instituting the proceedings ordinarily resides, carries E on business etc. Clause 61 of the Report of the said Committee is extracted below : 0 "Clause 61 (Original clause 65)~ -Sub-clause (2) of the original clause 65 has been omitted and replaced by a new sub-clause. The Committee feels that the provisions of the original sub-clause (2) would virtually make registration of copyright compulsory and-.would be an undue restriction on the owner of the copyright to exercise his rights. In the opinion of the Committee many authors are deterred from instituting infringement proceedings because the court in which such proceedings are to be instituted is situated at a considerable distance from the place of their ordinary residence. The Committee feels that this impediment should be removed and the new F G H 226 SUPREME COURT REPORTS (2015] 8 S.C.R. sub-clause (2) accordingly provides that infringement proceedings may be instituted in the district court within the local limits of whose jurisdiction the person instituting the proceedings ordinarily resides. carries on business. etc." (emphasis supplied by us) Section 62 of the Copyright Act is extracted below : "62. Jurisdiction of court over matters arising under this Chapter. - ( 1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction. (2) For the purpose of su,b-section (1 ). a "district court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for th~ time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or. where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain." Section 134 of the Trade Marks Act is also extracted below: "134. Suit for infringement, etc., to be instituted before District Court. - (1) No suit- ( a) for the infringement of a registered trade mark; or A B c D E F G H INDIAN PERFORMING RIGHTS SOCIETY LTD. v. SANJAY 227 DALIA&ANR. [ARUN MISHRA, J.] (b) relating to any right in a r~gist~red trade mark; or A (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court · having jurisdiction to try the suit. · (2) For the purpose of clauses (a) and (b) of sub-section (1 ). a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5of1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation.- For the purp~s'es of sub-section (2), "person" includes the regisr~Ved proprietor and the registered user." 1tlc

11. Following portion of the Parliamentary Debates as to Copyright Act has been relied upon : "Shri P. Trikamdas: Ordinarily it should fall within the jurisdiction of the court where the infringing copy was published. But there is nothing to prevent Parliament from making a law, as for instance in the case of divorce, and saying that the cause of action may also arise at any place where the author resides or where the original publication took place, so that you could drag the infringer to that court. Instead of making the another run all over the country facing the infringer, the right may be given to B c D E F G H 228 SUPREME COURT REPORTS [2015] 8 S.C.R A B the injured party-the author-to sue the main in the place where the author resides or where the first copy was published. Dr. Raghubir Sinh: So you agree to that? Shri P. Trikamdas: Yes, and I am obliged to you for asking me that question. Dr. Raghubir Sinh: Does Mr. Masani also approve of it? C Shri Masani : Yes. Shri P. Trikamdas: It is desirable, also because it may act as a deterrent on the infringer when he knows that he may have to go a few hundred miles off to a High Court where the author lives or where the book got published first." D

12. Considering the very language of section 62 of the Copyright Act and section 134 of the Trade Marks Act, an E additional forum has been provided by including a District Court within whose limits the plaintiff actually and voluntarily resides or carries on business or personally works for gain. The object of the provisions was to enable the plaintiff to institute a suit at a place where he or they resided or carried F on business, not to enable them to drag defendant further away from such a place also as is being done in the instant cases. In our opinion, the expression "notwithstanding anything contained in the Code of Civil Procedure" does not oust the applicability of the provisions of section 20 of the Code of Civil G Procedure and it is clear that additional remedy has been provided to the plaintiff so as to file a suit where he is residing or carrying on business etc., as the case may be. Section 20 of the Code of Civil Procedure enables a plaintiff to file a suit where the defendant resides or where cause of action arose. H INDIAN PERFORMING RIGHTS SOCIETY LTD. v. SANJAY 229 DALIA&ANR. [ARUN MISHRA, J.] Section 20(a) and section 20(b) usually provides the venue A where the defendant or any of them resides, carries on business or personally works for gain. Section 20(c) of the Code of Civil Procedure enables a plaintiff to institute a suit where the cause of action wholly or in part, arises. The Explanation to Section 20 C.P.C. has been added to the effect B that Corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has subordinate office at such place. Thus, 'corporation' can be sued at a place having its sole or principal office and where cause of action wholly or C in part, arises at a place where it has also a subordinate office at such place.

13. Learned author Mu Ila in the Code of Civil Procedure, 181h Edn., has observed that under clauses (a) to (c) of section D 20, plaintiff has a choice of forum to institute a suit. The intendment of the Explanation to section 20 of the Code of Civil Procedure is that once the corporation has a subordinate office in the place where the cause of action arises wholly or in part, it cannot be heard to say that it cannot be sued there E because it did not carry on business atthat place. The linking of the place with the cause of action in the Explanation where subordinate office of the corporation is situated is reflective of the intention of the Legislature and such a place has to be the F place of the filing of the suit and not the principal place of business. Ordinarily the suit has to be filed at the place where there is principal place of business of the corporation. _14. 'Corporation' in the Explanation would mean not