Varaharoopam Plagiarism Row : Kerala HC Allows Thaikkudam Bridge To Proceed Against Kantara Music Director Before Kozhikode District Court

In relation to the row over alleged plagiarism by the "Varaharoopam" song of "Kantara", the Kerala High Court has set aside the order passed by District Court Kozhikode which returned the plaint filed by Thaikkudam Bridge alleging copyright infringement by the makers of the Kannada superhit film.

The District Court had cited two main reasons for returning  Thaikkudam Bridge's plaint : one, the suit should be filed before Commercial Court being a commercial dispute; two, the defendants do not reside or carry out business within Kozhikode jurisdiction.

Allowing the first appeal filed by Thaikkudam bridge, the High Court has now set aside the District Court's order. While the appeal was pending in the High Court, Thaikkudam bridge had deleted producer Hombale Films, director Rishabh Shetty and the film's distributers from the array of defendants. So, the plaint is now confined only to Kantara's music director BL Ajaneesh.

The order passed in Thaikkudam Bridge's appeal by a bench of Justice MR Anitha is notable for its discussion on the interplay between Section 20 of the Code of Civil Procedure, Section 62 of the Copyright Act and the provisions of the Commercial Courts Act regarding jurisdiction to try a copyright infringement suit.

Section 62 does not take away right of the plaintiff to institute a suit at a place where cause of action has arisen

Referring to the Supreme Court's analysis in Indian Performing Rights Society Limited v. Sanjay Dalia and Another : (2015) 10 SCC 161, the High Court noted that Section 62 of the Copyright Act does not take away the right of the plaintiff to institute a suit in another place (a place other than where the plaintiff resides or carries out business) where a part of cause of action has arisen. Section 20(c) of CPC, which allows a plaintiff to institute a suit at a place where a part of cause of action has arisen, is not impacted by Section 62.

In this case, the plaintiff chose Kozhikode by stating that movie was exhibited in theatres there as well.

"...Section 62 only expands the right of the plaintiff to institute a suit in a place where he actually or voluntarily resides or carries on business or works for gain. It will not in any way curtail the right of the plaintiff to institute the suit in any of the places provided under Section 20 of the Code", it was observed. 

Ajaneesh contended that once it is found that the plaintiff had been carrying on business at Ernakulam and a part of cause of action arose there as well, the suit should be pursued at Ernakulam.

However, the High Court held that the suit can be maintained at Kozhikode on the strength of Section 20(c) CPC.

"So, though the plaintiff in this case cannot invoke Section 62(2) of the Act or 134(2) of the Trade Marks Act, plaintiff by invoking Section 20(c) of the Code (can) institute the suit before the District Court, Kozhikode", it held. 

Whether suit should be filed before Commercial Court

The next argument of the defendant was that the suit should be filed before the Commercial Court and the District Court's jurisdiction was barred by Section 12(b) of the Commercial Courts Act,2015.

Kantara's music director contended that the plaintiff's valuation of the suit -which seeks a declaration that "Varaharoopam" has infringed the copyrights of "Navarasam" song-  as Rs.1000 was incorrect. 

The Court agreed that the the subject matter of the suit may come within the definition of "commercial dispute" under Section 2(c)(17) of the Commercial Courts Act.

However, as regards valuation, the Court referred to sub-section (d) of Section 12 of the Commercial Courts Act which stipulates that the market value of the intangible right, as estimated by the plaintiff, would be taken into account for determining Specified Value.

"So, prima facie, the valuation of Rs.1,000/- for the reliefs (a) and (b) shown by the plaintiff cannot be said as illegal or incorrect", the Court observed. It also relied on a precedent which held that provisions of the Commercial Courts Act and the Kerala Court Fees and Suits Valuation Act should be interpreted harmoniously. In this connection, reference was made to Section 25(c) of the Kerala Court Fees and Suits Valuation Act, which says that reliefs sought regarding infringement of exclusive rights should be valued at a minimum of Rs.1000.

"So, the valuation made under Section 25(c) at Rs.1,000/- each for the declaratory reliefs is in tune with Section 12(d) of the Act and Section 25(c) of the Kerala Court Fees and Suits Valuation Act i.e. market value as estimated by the plaintiff", it declared. 

Since the suit's valuation is only Rs 1000, it will not come within the pecuniary jurisdiction of the Commercial Court. 

The High Court also took exception to the District Court relying on the averments in the counter-affidavit of the defendants and the documents produced by them to return the plaint. Supreme Court's precedents which state that only the averments in the plaint should be considered while exercising powers under Rule 11 of Order VII C.P.C were referred.

"So, at any rate, the impugned order as against the 5th defendant confining to the reliefs sought against him appear to be not sustainable and hence is set aside", the Court held.

The High Court had, vide its order dated January 12, 2023, deleted the other respondents to the appeal, the suit and and all applications, pursuant to the affidavit filed by the petitioner.  

"But I have already stated after the deletion of the defendants 1 to 4 and 6 to 14, there will be drastic changes in the pleadings and reliefs. Plaintiff/petitioner has to make necessary amendments in the petition as well as in the plaint accordingly. Thereafter, if at all the question of jurisdiction is pursued, it shall be disposed as per law above discussed",Justice Anitha  observed in this regard, while disposing the appeal. 

Thaikkudam Bridge was represented in its appeal before the High Court by Advocates C Unnikrishnan, Ananda Padmanabhan, Uthara AS, Vijayakrishan S Menon, Nidhi Balachandran, Vivek Nair P. and M. Uma Devi. 

It may also be noted that Kozhikode Police has registered an FIR under Section 63 of the Copyright Act against Kantara makers over the alleged plagiarism. Last week, the Supreme Court directed producer Vijay Kirgandur and director Rishab Shetty to appear before police on February 12 and 13 for interrogation, while staying the High Court's pre-arrest bail condition that the disputed song should not be exhibited in the movie.

Case Title: Thaikkudam Bridge v. Hombale Films & Ors.

Citation: 2023 LiveLaw (Ker) 81 

Click Here To Read/Download The Judgment