Law Web: Bombay HC: Under which circumstances the court should not grant interim relief in copyright suit when plaintiff has approached the court at eleventh hour?

In such a situation, this Court is unable to accept the contention of the plaintiff that although the film “Sky Force” was based on the very story in respect of which he had prepared the script “Fire Bird” and given it to the defendant No.1 way back in the year 2014, it did not occur to him after noticing such material in the public domain, starting from 2nd October 2023, that his original work could have been used for the film “Sky Force”. Being a person entrenched in the entertainment and film industry, even as per his own pleadings, it cannot lie in the mouth of the plaintiff that he was not aware about such material on websites concerning the said industry or even the print media, including well circulated newspapers like Times of India and the Statesman. {Para 19}

21. This Court is of the opinion that the plaintiff waited during

the aforesaid period of time from October 2023 till the film “Sky

Force” was completed and he has chosen to approach this Court

to seek stay on release of the film at the eleventh hour, only a

couple of days before the release date of 24th January 2025. In the meanwhile, defendant Nos. 2 and 3 have invested substantial sums of money. In fact, in the limited affidavits filed on their behalf, it is indicated that an amount of about Rs.250 crores has been invested in the film and that the domestic and overseas theatrical rights have been licensed to specific parties with more than 2500 domestic theatrical screens being booked. The music rights of the film have been assigned to a company and advance bookings for the theater screens have already begun with the deliveries of the film material for theatrical exhibition having been completed.

22. This Court is of the opinion that the above referred law pertaining to the manner in which the Court is expected to deal with such proceedings initiated at the eleventh hour, applies in full force to the facts and circumstances of the present case. It can be said that the present proceedings, in view of the aforesaid position of law, are not only delayed, but can be treated as litigation strategy on the part of the plaintiff to claim urgent circulation and to seek ad-interim reliefs at the eleventh hour when the film is about to be released.

23. Apart from this, it is relevant to note that in the plaint at

paragraph 46, the plaintiff has referred to an amount of Rs.10

crores in the backdrop of the discussions with the defendants.

Although the prayer clause of the plaint does not specifically

quantify an amount as regards the copyright claimed by the

plaintiff, a direction is sought from the defendants to disclose the

profits and revenue earned from the film “Sky Force”, thereby

indicating that ultimately the plaintiff would indeed be pressing

for monetary relief.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

IN ITS COMMERCIAL DIVISION

INTERIM APPLICATION (L) NO. 2143 OF 2025

COMMERCIAL IP SUIT (L) NO. 2130 OF 2025

Sandeep Gangatkar Vs Sandeep Kewlani & Ors.

CORAM: MANISH PITALE, J.

DATE : 23rd JANUARY 2025

The applicant/plaintiff herein is seeking urgent ad-interim

relief for restraining the defendants from releasing/broadcasting/

exploiting film titled “Sky Force”, which is slated for release on

24th January 2025 (tomorrow).

2. The plaintiff claims that the defendants are infringing upon

his copyright in a script titled “Fire Bird”, which is stated to be his

original literary work, as the story of the film copies the aforesaid

script in which the plaintiff claims copyright. It is the case of the

plaintiff that he became aware about the aforesaid attempt on the

part of the defendants to infringe his copyright on 8th January

2025, when the trailer of the film “Sky Force” was released. It is

further claimed that when the plaintiff approached the defendants,

initially they did discuss the issues being raised by the plaintiff, but

subsequently on 17th January 2025, they completely denied the

claims of the plaintiff, due to which he has rushed to this Court.

3. The application was urgently circulated day before yesterday

(21st January 2025). The defendants were represented by counsel

and they raised serious objection with regard to the delay on the

part of the plaintiff in approaching this Court. They relied upon

the settled position of law that when a plaintiff approaches the

Court at the eleventh hour in such cases, the Court is not to

entertain prayers for urgent ad-interim reliefs. In that light, the

learned counsel for the defendants submitted that short affidavits

could be tendered before this Court along with relevant

documents to show that the necessary details about the proposed

film “Sky Force” were in the public domain, atleast since October

2023 about which the plaintiff was admittedly aware, as per the

pleadings in the plaint itself. In that light, this Court granted

opportunity to the defendants to keep ready such affidavits for

perusal of the Court, along with relevant documents.

4. Since the objections raised on behalf of the defendants could

be said to be in the nature of a preliminary objection or an

objection raised at the threshold, this Court perused the limited

affidavits in reply tendered on behalf of defendant Nos.2 and 3

along with the documents annexed therewith, to first examine the

aspect of delay on the part of the plaintiff in approaching this

Court. The limited affidavits along with documents were taken

across the bar for perusal, considering the urgency in the matter.

Since copies were served on the plaintiff, the learned counsel for

the plaintiff as well as the defendants were heard on that aspect of

the matter. The defendants are permitted to e-file the said limited

affidavits in reply within one week from today.

5. Before considering the rival contentions, particularly focused

on the aspect of delay and the propensity of plaintiffs in

approaching the Court at the eleventh hour when the film is about

to be released, it would be appropriate to refer to the approach

adopted by this Court in such circumstances.

6. In the case of Sushila Sharma v/s. Madhur Bhandarkar &

Ors. (order dated 4

November 2009 passed in Notice of Motion

No. 3391 of 2009 in Suit No. 2417 of 2009), this Court while

dismissing the Notice of Motion observed as follows :

“17. There is an increasing tendency to file suits and seek

reliefs on the eve of release of a film with which big

Production Houses, Directors, Technicians and Artists are

associated. Mr.Tulzapurkar has termed this suit as a ‘blackmail

action’. It is not necessary to go into this aspect in the view

that I have taken. However, time has come when a serious

view will have to be taken of such actions. If doubts are

created about the versions of persons approaching the court,

then merely denying them reliefs would not be sufficient. If

doubts raised, show complete lack of bonafides on their part,

then, proceedings for making false statements on oath, need

to be also taken up against such parties. Beyond this, I say

nothing more and leave it for the defendants to adopt

appropriate proceedings.”

7. In the case of Sai Paranjpaye v/s. PLA Entertainment Pvt.

Ltd. & Ors. (order dated 4 th April 2013 passed in Notice of

Motion No. (L) 764 of 2013 in Suit No. (L) 280 of 2013), this

Court took into consideration the delay on the part of the plaintiff

in knocking the doors of the Court and thereupon, rejected the

prayer for staying the release of the film that was slated to be

released on the next day. In the said order, this Court also took

into consideration the aspect of the plaintiff crystallizing her claim

in monetary terms for violation of her copyrights.

8. In the case of Dashrath B. Rathod & Ors. v/s. Fox Star

Studios India Pvt. Ltd. & Ors., 2018 (1) Mh.L.J. 474, this Court

dealt with a similar situation where the plaintiffs had prayed for

stay of release of film and the question of delay, in the light of the

plaintiffs approaching the Court at the eleventh hour, was taken

into consideration. While deprecating such practice of plaintiffs in

moving the Court for urgent ad-interim reliefs when the film is

about to be released, this Court observed as follows :

“5. The effect of granting such a circulation application

would be that I would have to set aside all other work,

including part-heard and specially fixed matters, only to

accommodate the plaintiffs who have chosen to come this

late, though they could well have moved earlier. This practice

of parties claiming copyright infringement coming to Court at

the eleventh hour and expecting Courts to drop all other

work to listen to and decide their applications on a priority

basis must be discouraged. In a given case, where the plaintiff

had no prior knowledge an exception will of course always be

made. But where it is shown, and especially where it is

admitted, that the plaintiff knew several weeks in advance of

the release of the film, I see no reason to grant priority. That

would be an unconscionable indulgence.

************

28. 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 defendants' film since 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 plaintifts

have indeed made out a case of this strength, in his

submission, no injunction can or should follow.

30. 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 lastminute 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.”

9. The aforesaid position of law makes it abundantly clear that

in such matters, the aspect of delay on the part of the plaintiff in

approaching the Court assumes significance, particularly when it is

found that the film is about to be released and the plaintiff has

chosen to approach the Court at the eleventh hour. It is obvious

that in such circumstances, the Court is necessarily required to

take into consideration material that indicates existence of

information in the public domain about the concerned film and as

to whether the plaintiff moved with alacrity upon such

information coming into the public domain.

10. Before considering the material, upon which the defendants

have placed much reliance, it would be appropriate to consider the

claim of the plaintiff with regard to his script titled “Fire Bird”,

the central theme thereof and his claim about the same having

been given to the defendant No.1.

11. It is the case of the plaintiff that his script is based on

historical facts pertaining to the 1965 war between India and

Pakistan and particularly about an air raid conducted by the Indian

Air Force in Sargodha (Pakistan). Amongst the Indian Air Force

Pilots, who were part of the team that raided Sargodha, one

Squadron Leader Devayya did not return. Another Air Force Pilot,

Group Commander Taneja, pursued the said aspect of the matter

and eventually, his efforts led to Maha Vir Chakra being

posthumously given to the late Squadron Leader Devayya in the

year 1988. The plaintiff claims that he had weaved a story around

this central theme by substantial creative inputs, which led to the

aforesaid script “Fire Bird”. According to the plaintiff, he

forwarded the aforesaid script to defendant No.1 in the year

2014. This was in the backdrop of a Memorandum of

Understanding executed between the two.

12. It is in the backdrop of such claims that the learned counsel

for the plaintiff submitted that when the trailer of the film “Sky

Force” was released by the defendants, he became aware about the

resemblance between his script “Fire Bird” and the film “Sky

Force” and thereupon, the plaintiff was constrained to file the

present suit, particularly because the defendants dishonestly

denied his claims, despite the fact that initially they had come

down to the negotiating table. The learned counsel for the plaintiff

submits that the plaintiff has a very strong case on merits and

therefore, this Court may consider directing the defendants to

screen the film for the plaintiff in order to further demonstrate the

merits of the case of the plaintiff and till such time, the film ought

not to be released. It is submitted that there is no question of delay

in the present case, as the material in the public domain, upon

which the defendants have relied, does not show that the actual

story of the film “Sky Force” was in the public domain and it was

only when the trailer was released that the plaintiff became aware

about the manner in which the defendants had copied the creative

elements put into the basic theme by the plaintiff in his original

literary work i.e. the script “Fire Bird”. The learned counsel for

the plaintiff, in this context, relied upon judgment and order

passed by this Court in the case of Twentieth Century Fox Film

Corporation v/s. Sohail Maklai Entertainment Pvt. Ltd. & Anr.,

2010 (7) Mh.L.J. 338 and order passed in the case of Jyoti Kapoor

& Anr. v/s. Kunal Kohli & Ors., 2015 SCC OnLine Bom 3373.

But, upon the learned Senior Counsel appearing for the

defendants pointing out that the order passed in the case of Jyoti

Kapoor & Anr. v/s. Kunal Kohli & Ors. (supra) was set aside by

the Division Bench of this Court, the learned counsel for the

plaintiff did not rely upon the said order. By relying upon the

order passed by this Court in the case of Twentieth Century Fox

Film Corporation v/s. Sohail Maklai Entertainment Pvt. Ltd. &

Anr. (supra), the learned counsel for the plaintiff submitted that

unless this Court permits screening of the film and actually

compares the original literary work of the plaintiff i.e. the script

“Fire Bird” with the film “Sky Force”, the film ought not to be

released. It is submitted that dishonesty of the defendants ought

not to be trump over the rights of the plaintiff, on an erroneous

interpretation of the law pertaining to delay in such cases.

13. On the other hand, the learned Senior Counsel appearing

for defendant Nos. 1 to 3, relied upon the documents annexed to

the limited affidavits in reply of defendant Nos.2 and 3, to submit

that atleast since October 2023, the fact that the film “Sky Force”

on the stated storyline and subject was being produced was in the

public domain. Yet, the plaintiff has chosen to knock the doors of

this Court at the eleventh hour, when the film is to be released on

24th January 2025 (tomorrow). Reliance was placed on the

aforementioned orders of this Court in the case of Sushila Sharma

v/s. Madhur Bhandarkar & Ors. (supra), Sai Paranjpaye v/s. PLA

Entertainment Pvt. Ltd. & Ors. (supra) and Dashrath B. Rathod &

Ors. v/s. Fox Star Studios India Pvt. Ltd. & Ors. (supra).

14. This Court has already referred to the position of law with

regard to delay on the part of the plaintiff in such cases. The

relevant portions have been quoted hereinabove. The said position

of law and the test contemplated therein will have to be applied to

the present case, on the basis of the material annexed to the

limited affidavits of defendant Nos.2 and 3 and the rival

submissions made in that regard.

15. A perusal of the documents filed along with the limited

affidavits of defendant Nos. 2 and 3, show that a teaser of film

“Sky Force” was released as far back as on 2nd October 2023 and

this was very much in the public domain. In fact, the plaintiff in

paragraph 31 of the plaint itself has stated that the defendants had

indeed released the teaser on 2nd October 2023 on the YouTube

channel of defendant No.3. But, according to the plaintiff, since

the teaser of the film “Sky Force” did not disclose any creative

elements that were original to the plaintiff’s script, there was no

reason for the plaintiff to approach the Court or seek any

restraining orders.

16. In order to consider the aforesaid contentions raised on

behalf of the plaintiff, this Court has minutely looked at such

material in the public domain, as annexed in the form of

documents to the limited affidavits of defendant Nos.2 and 3. The

said documents are as follows :

(i) Teaser of the film “Sky Force” dated 2nd October 2023,

stating that the said film would be ready for release in

October 2024 and that this fact was shared on the social

media. This teaser specifically stated that the film “Sky

Force” was an untold story capturing the bravery, the

emotion and a patriotism of all the men in uniform involving

India’s first and deadliest airstrike against Pakistan. The said

teaser specifically stated that the aforesaid film was to be codirected by defendant No.1 and co-produced by defendant

Nos.2 and 3.

(ii) These claims were reiterated in posts/teasers released on the

official YouTube channel of the defendant No.3, wherein it

was further specifically stated that the film “Sky Force” was

not only co-directed by the defendant No.1, but it was

written by him.

(iii) On 11th March 2024, on website ottplay.com a specific

release referred to the fact that the film “Sky Force” was

announced on 2nd October 2023, inspired by India’s 1965

retaliatory attack on Pakistan’s Sargodha airbase. Specific

details about the air combat between the Air Forces of India

and Pakistan on 6th September 1965, were stated. It was

specifically stated that the tale of the air attack by the Indian

Air Force in Sargodha in Pakistan, was significant because it

was the only instance in which an air fighter i.e. Squadron

Leader Devayya was conferred Maha Vir Chakra

posthumously. It was further specifically stated in the

aforesaid post dated 11th March 2024 that there would be

two main characters in the film “Sky Force”, one being

Group Captain-Taneja and the other being Squadron Leader

Devayya, the role of the Group Captain being played by a

veteran star, while the role of the Squadron Leader being

played by a newcomer.

(iv) On the same day i.e. 11th March 2024, the Times of India

published an article regarding the film “Sky Force” based on

the 1965 air attack on Sargodha in Pakistan. This article also

gave details about the story of the film “Sky Force” being

based on Air attack on Sargodha in Pakistan, which led to

Maha Vir Chakra being posthumously given to one of the

fighters. Specific reference was made to Devayya with his

photograph forming part of the article, again making

reference to the actors who would be playing the two central

characters in the film.

(v) In an article, which was published on 11th March 2024 on

bollywoodlife.com, similar details about the film “Sky Force”

were placed in the public domain, with reference to the story

of the film and the details of the actors playing the central

characters in the said film.

(vi) Thereafter on 24th July 2024, the defendant No.2 released

teaser of the film “Sky Force” on www.sacnilk.com/news/

Maddock_Films, regarding film “Sky Force”, specifically

stating that the same was being co-directed by defendant

No.1, giving the aforementioned details about the story of

the film. It was indicated that the film was scheduled to be

released on 2nd October 2024.

(vii) On 23rd September 2024, the Times of India further

published an article about the film “Sky Force”, its story and

the actors playing the central roles.

(viii) On 21st October 2024, the Statesman published an article

concerning the film “Sky Force” and the possibility of the

film clashing with the release of another film. This article

also refers to the air strike by India in the 1965 War with

Pakistan.

(ix) On 17th December 2024, News18 published an article about

the film “Sky Force”, referring to the theme of the film, the

actors in the said film and also stating that it was co-directed

by the defendant No.1.

17. This Court is of the opinion that there is substance in the

contention raised on behalf of the defendants that as per the

pleadings of the plaintiff himself in the plaint, he cannot claim

ignorance of such material in the public domain pertaining to the

film “Sky Force”, atleast since October 2023. It is relevant to note

that in paragraph 1 of the plaint the plaintiff has claimed to be an

accomplished and well-reputed creative professional, working as a

creative director, executive producer, an animator and COO and

CEO in a career spanning two decades. He has also claimed to be

a seasoned scriptwriter and creative professional with extensive

experience in the animation and entertainment industry for two

decades, having expertise in creating original content from

conceptualizing storylines to overseeing pre-production processes.

He has also referred to his tenure at Adlabs and production of

high-profile projects and he claims to have co-produced and line

produced several cinematographic films, television and web-series.

Considering the said credentials of the plaintiff, it cannot lie in his

mouth that he was not aware about the aforementioned material

in the public domain about the film “Sky Force” from October

2023 and therefore, it becomes sufficiently clear that the plaintiff

waited for the film to be produced and when it reached the stage

of being released, he rushed to the Court raising claims on the

basis of copyright in the original script.

18. As noted hereinabove, in paragraph 31 of the plaint, the

plaintiff himself has stated that he was aware about the defendant

No.3 having released the teaser of the film “Sky Force” on its

YouTube channel as far back as on 2nd October 2023. It is the case

of the plaintiff himself that he had written the script “Fire Bird”

on the aforementioned theme available in the public domain about

the 1965 air raid, wherein one of the pilots was lost and how he

was posthumously awarded Maha Vir Chakra. The plaintiff claims

to have given the original work and script “Fire Bird” to defendant

No.1 as far back as in the year 2014. The aforesaid material

available in the public domain, starting with the teaser released on

2 nd October 2023, stated unambiguously that the film “Sky Force”

was written by defendant No.1 and it was also being co-directed

by him.

19. In such a situation, this Court is unable to accept the

contention of the plaintiff that although the film “Sky Force” was

based on the very story in respect of which he had prepared the

script “Fire Bird” and given it to the defendant No.1 way back in

the year 2014, it did not occur to him after noticing such material

in the public domain, starting from 2nd October 2023, that his

original work could have been used for the film “Sky Force”.

Being a person entrenched in the entertainment and film industry,

even as per his own pleadings, it cannot lie in the mouth of the

plaintiff that he was not aware about such material on websites

concerning the said industry or even the print media, including

well circulated newspapers like Times of India and the Statesman.

20. The explanation sought to be given by the plaintiff is that he

did not believe that the teaser released on 2nd October 2023 gave

rise to an actionable cause because the teaser did not disclose any

creative elements forming part of the original and unique script of

the plaintiff. A bare reading of the plaint would show that even

according to the plaintiff, his script was indeed based on the air

strike conducted by the Indian Air Force, during the 1965 IndiaPakistan War at Sargodha in Pakistan and the manner in which

Squadron Leader Devayya disappeared and how he was eventually

awarded the Maha Vir Chakra posthumously. This Court is of the

opinion that the pleadings in the plaint itself demonstrate that the

plaintiff cannot feign ignorance about the aforesaid elaborate

material in the public domain about the film “Sky Force” from

October 2023 onwards or that he could not have any grievance till

the trailer was released in January 2025.

21. This Court is of the opinion that the plaintiff waited during

the aforesaid period of time from October 2023 till the film “Sky

Force” was completed and he has chosen to approach this Court

to seek stay on release of the film at the eleventh hour, only a

couple of days before the release date of 24th January 2025. In the

meanwhile, defendant Nos. 2 and 3 have invested substantial sums

of money. In fact, in the limited affidavits filed on their behalf, it is

indicated that an amount of about Rs.250 crores has been invested

in the film and that the domestic and overseas theatrical rights

have been licensed to specific parties with more than 2500

domestic theatrical screens being booked. The music rights of the

film have been assigned to a company and advance bookings for

the theater screens have already begun with the deliveries of the

film material for theatrical exhibition having been completed.

22. This Court is of the opinion that the above referred law

pertaining to the manner in which the Court is expected to deal

with such proceedings initiated at the eleventh hour, applies in full

force to the facts and circumstances of the present case. It can be

said that the present proceedings, in view of the aforesaid position

of law, are not only delayed, but can be treated as litigation

strategy on the part of the plaintiff to claim urgent circulation and

to seek ad-interim reliefs at the eleventh hour when the film is

about to be released.