In the Court
of the Learned District Judge,
Alipore,
South 24
Parganas
Title Suit No. 09 Of
2024
In
the matter of ;
Sri Subhro Ghosal,
__________Plaintiff
-
Versus –
Subhadeep Mazumder,
_______Defendant
Written
Objection on an application under Order VII Rule 11 CPC for rejection of the
Plaint, by the Plaintiff;
The
humble petition of the above named Plaintiff, most respectfully;
Sheweth as under;
1.
That the Plaintiff instituted the
above referred Suit for Permanent Injunction restraining Infringement of
Copyrights, Damages, Rendition of Accounts of Profits, Delivery Up, etc. under
Section 55 of the Copyright Act 1957, against the Defendant, before the Learned
Court. The Suit is valued at Rs. 1,00,600/- (Rupees One Lakh and Six Hundred) only.
2.
That the defendant was appearing in
the above referred suit on 20/01/2025, by placing an application under Order
VII Rule 11 of the Code of Civil Procedure’ 1908, for rejection of Plaint on
service copy to the Plaintiff. The plaintiff on bare perusal of the contents
and purports of the said application found that the said application is not
maintainable and sustainable in the Law. The plaintiff would states necessary
facts in the followings;
(a) The
Suit is valued at Rs.
1,00,600/- (Rupees One Lakh and Six Hundred) only;
(b) Even,
if a cease and desist notice demanded ₹50,00,000, the fact that the suit is
valued at ₹1,00,000
cannot be a ground for rejecting the plaint under Order VII Rule 11 of the CPC;
(c) Under
Order VII Rule 11, a plaint can be rejected only if (1) It does not
disclose a cause of action, (2) The relief claimed is undervalued, and the
plaintiff fails to correct it, (3) The suit is barred by law, & (4) It is
not properly stamped, and the deficiency is not corrected;
(d) Since
valuation of the suit is the plaintiff's prerogative, merely having a higher
amount in the cease and desist notice does not automatically mean the suit
should be rejected;
(e) The
valuation of a suit at ₹1,00,000,
despite a prior cease and desist notice demanding ₹50,00,000, is not, by
itself, a ground for rejection of the plaint under Order VII Rule 11 of the
Code of Civil Procedure, 1908;
(f)
The Supreme Court clarified that a
plaint cannot be rejected merely on the ground that the plaintiff is not
entitled to any relief in the suit. The determination under Order VII Rule 11
should focus on whether the plaint discloses a cause of action or is barred by
law, not on the potential success of the plaintiff's claims, decided in
Petition for Special Leave to Appeal (C) No. 19018/2022 (Arising out of
impugned final judgment and order dated 10-10-2022 in CRN No. 3324/2022 passed
by the High Court Of Punjab & Haryana at Chandigarh) Gurdev Singh v. Harvinder
Singh on 09-11-2022;
Server Copy of the Order dated
09-11-2022, passed in Gurdev Singh v. Harvinder Singh Petition for Special
Leave to Appeal (C) No. 19018/2022 (Arising out of impugned final judgment and
order dated 10-10-2022 in CRN No. 3324/2022 passed by the High Court Of Punjab
& Haryana at Chandigarh), by the Hon’ble Supreme Court of India, is annexed
herewith and marked as Annexure – “A”.
3.
Without waiving any of the aforesaid
Objections and Facts and fully relying thereupon and without prejudice to the
same. Now, the Plaintiff deals with the specific paragraphs of the said
application under Order VII Rule 11 of CPC, in seriatim as hereunder.
4.
The application under Order VII Rule
11 of CPC is not maintainable either in facts or in its present form and the
said application under Order VII Rule 11 of CPC is speculative, harassing,
motivated, concocted and baseless as is barred by the Principles of Law and
hence same is liable to be rejected at once, with cost.
5.
Save and except the statements made in the
said application under Order VII Rule 11 of CPC, which are matter of record,
the Plaintiff denies each and every allegations contained in the said application
under Order VII Rule 11 of CPC and calls upon the defendant to strict proof of
the said allegations, in terms of the facts as well as in terms of the Law.
6.
That with references to the statements
made in paragraph nos. 1, 2, 3, 4, and 5, of the application under Order VII
Rule 11 of CPC, this Plaintiff specifically and categorically denies and disputes
the contents and purport of those paragraphs, and put to the defendant to the
strict proof thereof. The Plaintiff repeat and reiterate the statements made in
paragraph no.2, herein above. The Plaintiff says that since
valuation of the suit is the plaintiff's prerogative, merely having a higher
amount in the cease and desist notice does not automatically mean the suit
should be rejected. The valuation of a suit at ₹1,00,000, despite a
prior cease and desist notice demanding ₹50,00,000, is not, by itself, a ground
for rejection of the plaint under Order VII Rule 11 of the Code of Civil
Procedure, 1908.
7.
That with references to the statements
made in paragraph nos. 6, 7, 8, and 9, of the application under Order VII Rule
11 of CPC, this Plaintiff specifically and categorically denies and disputes
the contents and purport of those paragraphs, and put to the defendant to the
strict proof thereof. The Plaintiff repeat and reiterate the statements made in
paragraph no.2, herein above. The Plaintiff says that the present Suit is not
barred by any Law under Order VII Rule 11(d) of the Civil Procedure Code’ 1908.
The Commercial Courts Act 2015, is not applicable in the given facts and
circumstances of the Plaint. Even the defendant removed the infringed video
from the Youtube Channel, but at the same time after few days later it has been
observed that the defendant through some other person trying to play the said
purported infringed video through the different means of Social media i.e.
Facebook, etc.
8.
That the cause of action in the present
suit first arose on 14th day of November’ 2024, while the Plaintiff
came across a Short Film on a Youtube Channel www.youtube.com/@thebreathingcelluloid9070
Short
Film : THE VOICE ARTIST, by Subhadeep Mazumder, Published on 9th
November’ 2024, vide URL of alleged infringing video : https://www.youtube.com/watch?v=SC9KlgrwyAw
which contained the contents and purports truly consisted in the plaintiff’s
literature/ drama work which has been cited as “TELEPHONE”
having Registration No. L-136483/2023, dated 21st day of November’
2023. The Cause of action arose again while the Plaintiff informed such facts
of infringing the copyright to Youtube authority concern and thereby the
Youtube withheld the said Short film for the time being. The cause of action
further arose while the Plaintiff arranged to sent Cease and Desist Notice
dated 25th November’ 2024 to the defendant and the defendant replied
on the said notice by Letter dated 28th day of November’ 2024. The
Cause of action is a continuing one and shall continue until the defendant is
restrained by an order of injunction of this Learned Court.
9.
That this Learned Court has jurisdiction by virtue of Section 62(2) of
the Copyright Act, 1957, since the cause of action has arisen within the
jurisdiction of this Learned Court, and also confers the jurisdiction on this
Learned Court as the Plaintiff is residing and carrying his business within the
territorial jurisdiction of this Learned Court. Further the Learned Court has
jurisdiction by virtue of Section 20 of the Code of Civil Procedure, 1908,
since the defendant is carrying on his business within the territorial
jurisdiction of this Learned Court by way of URL of alleged
infringing video : https://www.youtube.com/watch?v=SC9KlgrwyAw
which contained the contents and purports truly consisted in the plaintiff’s
literature/ drama work which has been cited as “TELEPHONE”
having Registration No. L-136483/2023, dated 21st day of November’
2023.
10.
That the relief sought for in the said application
under Order VII Rule 11 of CPC, are wholly without jurisdiction and
the same should be negated by this Learned Court.
11.
That there is no merit in the said application
under Order VII Rule 11 of CPC.
12.
That this Written Objection is made
bonafide and in the interest of administration of Justice.
It is therefore prayed that your
Honour would graciously be pleased to accept the written objection of the
plaintiff and to reject or dismissed the application under Order VII Rule 11 of
the Code of Civil Procedure’ 1908, in the interest of administration of
Justice, and /or to pass such other necessary order or orders as Your Honour
may deem, fit, and proper for the end of Justice.
And for this act of kindness, the
Petitioner, as in duty bound shall ever pray.
VERIFICATION
I, Subhro Ghosal, being
the Plaintiff herein, made this written objection on an application under Order
VII Rule 11 of the Civil Procedure Code’ 1908, filed by the defendant. I am
acquainted and conversant with the Material facts as stated in the foregoing
paragraphs of the Written Objection. I verify and sign this Written Objection
on 5th day of March’ 2025, at Alipore Judges’ Court premises.
Affidavit
I, Subhro Ghosal, Son of Uday Sankar
Ghosal, aged about 41 years, residing at Premises being No. 331, Jyotish Roy
Road, Kolkata - 700053, Police Station – Jadavpur, District – South 24
Parganas, and also at “Appayan Apartment” Ground Floor, Flat-GC, Premises no. 108/11/(50),
Purbachal Road (North), Haltu, Police Station – Kasba, Kolkata - 700078, do hereby solemnly
affirm and says as follows;
1. I am the Plaintiff in the present suit instituted by
me against the defendant. I am acquainted and conversant with the material
facts. I am competent to swear this affidavit.
This is true to the best of my knowledge & belief.
2. The statements made in the paragraph nos. 1, 2, &
8, 9, are true to the best of my knowledge and belief, and the rests are my
humble submissions before the Learned Court.
This is true to the best of my knowledge & belief.
3. The statements are true to the best of my knowledge
and belief.
DEPONENT
Identified by me,
Advocate
Prepared in my
chamber,
Advocate
Date : 5th
day of March’ 2025;
Place :
Alipore Judges’ Court
NOTARY
In the Court of the Learned District Judge, Alipore,
South 24 Parganas
Title
Suit No. 09 Of 2024
In
the matter of ;
Sri Subhro Ghosal,
__________Plaintiff
-
Versus –
Subhadeep Mazumder,
_______Defendant
Written Objection on an application under Order
VII Rule 11 CPC for rejection of the Plaint, by the Plaintiff;
Advocate
– on – Record for the Plaintiff;
Sanjib
Saha, Advocate
High
Court Calcutta
Chamber : P-16, Purbasha Pally, Dr. A.K. Paul Road,
Kolkata – 700034, Mobile No. 9051570268, 7003781930, Email : sanjibsaha.smc@gmail.com
