whether on the factual score which has been exposited, the application filed under Section 9 of the 1996 Act before the High Court of Bombay can be regarded as a money claim. On a studied scrutiny of the agreement and the MoU it is clear as day that the development agreement indubitably had created certain interests in the land in favour of the appellant. The assertions made in the application along with the relief clause when read in entirety and appreciated in a holistic manner, it becomes luminescent that the core dispute pertains to possession of the land, for the appellant claims to be in exclusive possession and the respondent, per contra, has asseverated that it had taken over possession. It can irrefragably be stated that any order passed under Section 9 of the 1996 Act will have the impact on the land. It is difficult to accede to the submission that it will not conceptually fall within the category of “suit for land” as engrafted under Clause 12 of the Letters Patent. It is clearly a dispute with regard to the possession which is evincible from the correspondences and the averments made in the application preferred under Section 9 of the 1996 Act. Thus, there has to be determination as regards possession and impliedly issue of direction for recovery of possession. Hence, the conclusion arrived at by the Division Bench on the basis of the scrutiny of documents that the dispute is embedded with regard to the possession of the land because the fundamental claim pertains to certain constructed space on the land and, therefore, it would conceptually fall within the conception of “suit for land” appearing in Clause 12 of the Letters Patent is unexceptionable. Prayer (a) quoted above seeks restraint by a temporary order or injunction from entering upon the property. It is difficult to accept the submission that it is a money claim and, therefore, the Bombay High Court would also have the territorial jurisdiction and accordingly we unhesitatingly repel the same. 34. Resultantly, we find no substance in the appeal and accordingly the same stands dismissed. There shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 4267  OF 2015
                  [Arising out of SLP(C) No. 11215 OF 2015]



Sumer Builders Pvt. Ltd.                     ... Appellant

                                Versus

Narendra Gorani                        ... Respondent





                               J U D G M E N T



Dipak Misra, J.

      The instant appeal is directed against the judgment  and  order  dated
10.03.2015 passed by the Division Bench of the High Court of  Judicature  at
Bombay in Appeal No. 572 of 2013 whereby it  has  concurred  with  the  view
expressed by the learned Single Judge in Chamber  Summons  No.  720/2013  in
Arbitration Petition No. 799/2013 dated 10.10.2013  whereunder  the  learned
Single Judge had revoked the leave granted by the court under Clause  12  of
the Letters Patent to file a petition under Section  9  of  the  Arbitration
and Conciliation Act, 1996 (for brevity, “the 1996 Act”).
2.    The facts which are essential to be stated are  that  the  parties  to
the lis entered into an agreement on 28.2.2008 for development of  the  land
of the respondent.  As per the said agreement, the  appellant  was  required
to develop a residential project and/or commercial complex and/or  multiplex
and/or hotels and/or malls etc. as permissible in law.  The  respondent  had
handed over the vacant possession of the land to  enable  the  appellant  to
start the development  work.     Clause  13  of  the  development  agreement
contains an arbitration clause whereby the parties had agreed to  refer  the
matter in respect of any difference or dispute between them with  regard  to
the construction or the terms of the development agreement  or  with  regard
to the project undertaken for arbitration.  A  Memorandum  of  Understanding
(MoU) was entered into  between  the  parties,  which  stipulates  that  the
developer was required  construct  a  township  project  consisting  of  one
commercial building, 11 residential wings in four  buildings  and  one  club
house under licence from the Indore Municipal Corporation.  It  was  further
agreed that if the MoU was terminated, the  developer  would  not  have  any
right, title or interest in the township project and would  be  required  to
remove his employees and machineries  from  the  land.   Clause  13  of  the
developer agreement was also incorporated in the MoU.

3.    As disputes arose with regard to payment,  the  respondent  terminated
the MoU, forfeited the security deposit and invoked the  arbitration  clause
by issuing a notice through his Advocate on 6.6.2013.  The appellant  herein
replied to the termination  notice  by  stating  that  it  had  carries  out
substantial construction on the property  by  constructing  three  buildings
and by taking many other steps.  It was also stated by  the  appellant  that
the environmental clearance certificate for the project was not obtained  by
the respondent and, therefore, further  work  was  stopped.   The  appellant
required the respondent to perform his part of  the  contract  in  obtaining
the  requisite  environmental  clearance,  execute  irrevocable   power   of
attorney, refund the part of the amount payable  and  pay  interest  on  the
security deposit.

4.    As the factual matrix would undrape, when arbitration was demanded  by
the respondent, the appellant on  16.7.2013  replied  that  the  arbitration
tribunal had to be in Mumbai.   It  was  also  put  forth  that  it  was  in
physical  possession  of  the  property  and  its   construction   material,
machinery, office equipments and other equipments  were  at  the  site.   At
this stage, the appellant moved the High Court of Bombay for grant of  leave
under Clause 12 of  the  Letters  Patent  by  filing  an  application  under
Section 9 of the 1996 Act asserting that  the  courts  at  Bombay  have  the
territorial  jurisdiction,  and  accordingly   leave   was   granted.    The
respondent after  entering  appearance  filed  an  application  praying  for
revocation of leave.  While seeking revocation of leave,  it  was  contended
by the respondent that dispute pertains to the  land  which  is  situate  at
Indore; that the development agreement and the  MoU  had  been  executed  at
Indore where the immoveable property  is  situated;  and  that  the  dispute
fundamentally is for right and possession over the land,  hence,  the  court
where the land is situated has the territorial jurisdiction  in  respect  of
the arbitration or any application to be filed under the 1996 Act.

5.    The learned Single Judge scanned the  anatomy  of  Clause  12  of  the
Letters Patent and various  decisions  of  the  High  Court  of  Bombay  and
referred to the decision in Moolji Jaitha  &  Co.  v.  Khandesh  Spinning  &
Weaving Mills Co. Ltd.[1], adverted to the  issue  relating  to  what  would
constitute cause of action in the obtaining  factual  matrix,  analysed  the
decision of the Bombay High Court  in  Shiv  Bhagwan  Moti  Ram  Saraoji  v.
Onkarmal Ishar Dass & Ors.[2], and referred to Adcon Electronics  Pvt.  Ltd.
v. Daulat and Anr.[3] and eventually came to hold as follows:-
“... the Petitioner has put up its machinery,  staff  for  the  construction
and the ultimate construction upon the land.  Several  buildings  have  been
constructed fully or in part.  The parties are entitled to  a  part  of  the
construction each as per the directions  of  the  development  agreement  or
amount in cash as per the MOU.  The development work  is  in  progress.   An
order for protection of the property pending the arbitration  would  involve
the land itself.  The dispute has nothing to  do  with  the  rights  of  the
parties in personam only....”

      And again:-
“... The disputes in the development agreement are  closely  connected  with
the land, the possession of which is disputed by the parties.  The  suit  is
a suit for land.  It would have to be filed in  Indore  where  the  land  is
situate.”

6.    Being of this view, the learned Single Judge revoked  the  leave  that
was earlier granted.   Being dissatisfied  with  the  aforesaid  order,  the
appellant preferred  an  appeal  before  the  Division  Bench.   Before  the
Division Bench it was contended that the appellant was in possession of  the
land and the possession shall remain with it  till  the  completion  of  the
entire project and he was entitled to refund of security deposit.

7.    In essence, it was urged that the application preferred under  Section
9 of the 1996 Act was tenable before the High Court of Bombay and there  was
no justification to revoke  the  leave.   The  Division  Bench  referred  to
certain clauses of the agreement and  the  clauses  from  the  MoU  and  the
correspondences between the parties, the assertions made in  the  Section  9
petition and the relief sought therein, addressed to the  import  of  Clause
12 of the Letters Patent and what meaning had been given to  the  “suit  for
land” in Moolji Jaitha (supra) by analyzing  various  passages,  culled  out
the principles stated in Adcon Electronics (supra), took note  of  the  fact
that the development agreement and the MoU had been executed at Indore,  the
statement of claim and the counter claim filed by  the  parties  before  the
learned arbitrator who  has  already  entered  into  reference  and  in  the
ultimate eventuality opined thus:-
“... In the present case, we are of the vie that the  disputes  between  the
parties hereto in relation to the development agreement  dated  28  February
2008 and the MOU dated 8 June 2012 are  of  such  a  nature  that  they  are
rooted to the land. The disputes are not such that they relate only  to  the
execution of any document and/or specific performance  thereof  simplicitor.
The disputes relate to possession of the said  land  which  is  outside  the
jurisdiction of the Court as also regarding the percentage  of  the  parties
rights, title and interest in the said land and/or their  entitlement  to  a
sizable portion of the constructed  space  thereon.   These  disputes  would
certainly fall within the expression “suit for  land”  appearing  in  Clause
XII of the Letters Patent.”

      Expressing thus, the Division Bench declined  to  interfere  with  the
order passed by the learned Single Judge.

8.    We have heard Mr. Shekhar Naphade,  learned  senior  counsel  for  the
appellant and Mr. Shyam Divan, learned senior counsel for the respondent.

9.    Criticizing the orders passed by the High Court, it  is  submitted  by
Mr. Naphade, learned senior counsel that the learned Single  Judge  as  well
as the Division Bench has fallen into serious error  in  their  appreciation
of the clauses in the agreement and the relief sought inasmuch as it  was  a
money claim and when the amount was  paid  at  Mumbai,  the  High  Court  of
Mumbai had the jurisdiction.  He has drawn our attention to various  clauses
in the  agreement  to  which  we  shall  refer  to  in  the  course  of  our
delineation.  In essence, his submission is that it  is  basically  a  claim
relating to money and it has nothing to do with  the  land  and,  therefore,
the analysis made by the High Court is fundamentally fallacious.

10.   Mr.  Divan,  learned  senior  counsel  appearing  for  the  respondent
countering the aforesaid submissions would contend that the cause of  action
had arisen at Indore regard being had to the fact that the land is  situated
at Indore and the agreement  in  question  and  the  MoU  were  executed  at
Indore.  It is his further submission that the order passed by the  Division
Bench is absolutely defensible inasmuch as it is a claim  for  land  and  in
the backdrop of prayer under Section 9 of the  1996  Act,  there  could  not
have been any other conclusion than what has  been  expressed  by  the  High
Court that it has no territorial jurisdiction to deal with the  controversy.


11.   To appreciate the controversy, it is appropriate to  refer  to  Clause
12 of the Letters Patent, which reads as follows:-
“12.  Original jurisdiction as to suits – And we do further ordain that  the
said High Court of Judicature at Bombay, in the  exercise  of  its  ordinary
original  civil  jurisdiction,  shall  be  empowered  to  receive,  try  and
determine suits of every description, if, in the case of suits for  land  or
other immovable property such land or property shall be situated, or in  all
other cases if the cause of action shall have arisen, either wholly,  or  in
case the leave of the Court shall have been first obtained, in part,  within
the local limits of the ordinary original  jurisdiction  of  the  said  High
Court, or if the defendant at the time  of  the  commencement  of  the  suit
shall dwell or carry on business, or personally work for gain,  within  such
limits; except that the  said  High  Court  shall  not  have  such  original
jurisdiction in cases falling within the jurisdiction  of  the  Small  Cause
Court at Bombay, in which the debt or damage, or value of property sued  for
does not exceed one hundred rupees.”


12.   The said clause fell for interpretation in Adcon Electronics  (supra),
wherein the Court stated thus:-
“Thus, it is clear that under clause 12 of  the  Letters  Patent,  the  High
Court in exercise of its ordinary original jurisdiction will have  power  to
receive, try and determine: (1) suits for land or other  immovable  property
if  such  property  is  situated  within  the  local  limits   of   original
jurisdiction of the High Court; or (2) all other cases (a) if the  cause  of
action has arisen wholly within the local limits of  the  ordinary  original
jurisdiction of the High Court; (b) if prior leave of  the  Court  has  been
obtained and the cause of action has arisen in part within the local  limits
of the ordinary original jurisdiction of the  High  Court;  or  (c)  if  the
defendant dwells or carries on business or personally works for gain  within
such limits.”


13.   Be it noted under Section 120 of the Code  of  Civil  Procedure,  1908
(for short, “CPC”), Sections 16, 17 and 20 are not applicable  to  the  High
Court in original civil jurisdiction.  Thus,  as  far  as  the  Bombay  High
Court is concerned, it is Clause 12 of the Letters Patent that would  govern
the controversy.

14.   In Adcon Electronics (supra), the  two-Judge  Bench  referred  to  the
divergence of opinion in Moolji Jaitha (supra), the Full Bench  decision  of
the High Court of Madras  in  P.M.A.  Velliappa  Chettiar  v.  Saha  Govinda
Doss[4], Division Bench judgment of Calcutta High  Court  in  Debendra  Nath
Chowdhury v. Southern Bank Ltd.[5] and ruled thus:-
“From the above discussion it follows that a “suit for land” is  a  suit  in
which the relief claimed relates to title to or delivery  of  possession  of
land or immovable property. Whether a suit is a “suit for land” or  not  has
to be determined on the averments  in  the  plaint  with  reference  to  the
reliefs claimed therein; where the relief relates to adjudication  of  title
to land or immovable property or delivery  of  possession  of  the  land  or
immovable property, it will be a “suit  for  land”.  We  are  in  respectful
agreement with the view expressed by Mahajan, J. in Moolji Jaitha case.”


15.   It will be appropriate to reproduce what Justice Mahajan had  observed
in Moolji Jaitha (supra):-
“If an attempt is made to find a comprehensive definition of the phrase,  it
will eventually be discovered that it has created further  complications.  I
therefore content myself by saying that where the  nature  of  the  suit  is
such that in substance it involves a controversy  about  land  or  immovable
property and the court is called upon to decide conflicting claims  to  such
property and a decree or order is  prayed  for  which  will  bring  about  a
change in the title to it, that suit can be said to be in  respect  of  land
or immovable property; but where incidentally in a suit,  the  main  purpose
of which or the primary object of which is quite different, some relief  has
to be given about land, the title to it not being in  dispute  in  the  real
sense of the term, then such a suit cannot fall within the four  corners  of
this expression.”


16.   He had further added:-
“In my opinion, if the suit is for specific performance  and  a  decree  for
possession of the land sold is claimed, such a suit  would  certainly  be  a
suit for land; but if the suit  is  simpliciter  for  specific  performance,
i.e., for the enforcement of the contract of sale and  for  execution  of  a
conveyance, in that event there can be no good ground for holding that  such
a suit is a suit for determination of title to land or that  the  decree  in
it would operate on the land.”


17.   Recently, in Excel Dealcomm Pvt.  Ltd.  v.  Asset  Reconstruction  Co.
(India)  Ltd.[6],  the  controversy  had  arisen  from  the  High  Court  of
Calcutta.  The two-Judge Bench addressed to the issue “what is the suit  for
land”, and observed as under:-
“A suit for land is a suit in which the relief claimed relates to the  title
or delivery of possession of land  or  immovable  property  [see  [pic]Adcon
Electronics (P) Ltd. v. Daulat]. Further, it is an established rule that  to
determine whether it is a suit for land, the court  will  look  into  barely
the plaint and  no  other  evidence  (Indian  Mineral  &  Chemicals  Co.  v.
Deutsche Bank[7]). If by the averments in the plaint  and  prayers  therein,
it appears that the suit is one for land, it shall be  so  held  and  if  it
does not so appear, then the suit shall continue under leave  granted  under
Clause 12.”


18.   Be it noted, in the said case suit was filed for specific  performance
of the agreement which contemplated sale of property as has  been  described
under Section 13 of the SARFAESI Act, 2002.  The  issue  that  arose  before
the Court is as follows:-
“In the present case, a suit was filed for the specific performance  of  the
agreement which contemplated the sale of property, as has been described  in
Para 1 under Section 13 of the SARFAESI Act  in  terms  of  the  Rules.  The
question with respect to Clause 12 of the  Letters  Patent  in  the  present
case is that whether the present suit is suit for land.”


19.   The Court referred to  the  relief  clause,  the  authority  in  Adcon
Electronics (supra) and came to hold that:-
“It may be noted that the sale certificate sought under the prayer  requires
the delivery of possession of the suit property.  Thus,  we  find  that  the
prayer for delivery of possession was an implicit one in the  present  case.
The prayer as sought in the plaint could not have been granted  without  the
delivery of possession of the suit property as the sale  certificate  itself
contemplates the delivery of the immovable property. Thus, in view  of  this
we find that Adcon Electronics would not apply as there  was  a  prayer  for
delivery of possession in the present case.  Therefore,  we  hold  that  the
present suit was indeed a suit for land.”


      Being of this view, it concurred with the  opinion  expressed  by  the
High Court of Calcutta that it did not have the territorial jurisdiction.

20.   The obtaining factual matrix has to be appreciated  on  the  basis  of
the principles  that  have  been  enunciated  in  the  authorities  we  have
referred to hereinabove.  It has  to  be  borne  in  mind  that  it  was  an
application under Section 9 of the 1996 Act.  Section  9  of  the  1996  Act
reads as follows:-
“9. Interim measures, etc. by Court.—A party may, before or during  arbitral
proceedings or at any time after  the  making  of  the  arbitral  award  but
before it is enforced in accordance with section 36, apply to a court—

(i) for the appointment of a guardian for a minor or  a  person  of  unsound
mind for the purposes of arbitral proceedings; or

(ii) for an  interim  measure  of  protection  in  respect  of  any  of  the
following matters, namely:—

(a) the preservation, interim custody or sale of any  goods  which  are  the
subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or  inspection  of  any  property  or  thing
which is the subject-matter of the dispute in arbitration, or  as  to  which
any question may arise therein and authorising  for  any  of  the  aforesaid
purposes any person to enter upon any land or building in the possession  of
any party, or authorising any samples to be taken or any observation  to  be
made, or experiment to be tried, which may be  necessary  or  expedient  for
the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the  court  to
be just and convenient,

and the Court shall have the same power for making orders as it has for  the
purpose of, and in relation to, any proceedings before it.”

21.   There can be no cavil over the proposition  that  Section  9  petition
can be entertained in the absence of arbitral proceeding.   Be  that  as  it
may, it is imperative to scan the relevant  clauses  of  the  agreement  and
carefully x-ray the clauses of the MoU and also  critically  scrutinise  the
relief sought in the petition preferred under Section 9 of the Act.

22.   Mr. Naphade, learned senior counsel has drawn  our  attention  to  the
recital part of the agreement and certain other clauses.  The  recital  part
reads as follows:-
“AND WHEREAS the Owner and Developer have agreed to develop  the  said  land
by entering in a Development Agreement, by which the owner shall get 40%  of
the Developed Saleable area and Developer shall get  60%  of  the  Developed
Saleable  Area  in  the  proposed  project   irrespective   of   its   being
residential/commercial or hotels or  Multiplex  or  mixture  of  the  either
etc.”


23.   Clause 3 of  the  agreement  deals  with  the  security  amount  which
stipulates that for developing the said land of  the  owner,  the  developer
shall give a “Refundable Security Deposit” of Rs.20 crores to the owner.   A
schedule was fixed for  payment  of  the  said  amount.   Clause  4  of  the
agreement stipulates what events would take place  after  execution  of  the
development agreement.  It basically relates to certain  obligations  to  be
performed by the parties.

24.   Clause 5(ii) of the agreement on which emphasis has been  laid  is  to
the following effect:-
“5. (ii) The Developer and the  Owner  shall  at  all  times  thereafter  be
entitled to receive money, take bookings,  enter  into  leasing  agreements,
sell, assign any or all portions of the proposed project falling  under  his
share,  and  owner  hereby  give  express  consent  for  the  same  to   the
Developers.”


25.   Clause 7 deals with refund of security deposit.  Clause 7D from  which
inspiration has been drawn by the learned senior counsel for  the  appellant
reads as follows:-
“7D.  It is agreed between the parties hereto that if  the  Owner  fails  to
refund the security deposit and the  parties  hereto  decides  to  sale  the
units and/or blocks then in that event the Developer shall  be  entitled  to
recover refundable security deposit from the sale of Units and/or Blocks  of
the Owner’s share and in the circumstances the Developers shall be  entitled
to receive 60% and the Owner shall be entitled to receive 40%  of  the  sale
price of the Units and/or Blocks of the  Owner’s  share  and  the  said  60%
price will be adjusted towards refundable security deposit.”


26.   Clause 9 deals with the responsibility of the  developer.   Clause  10
deals with the joint responsibilities of the owner and the  developer.   The
said clause reads as follows:-
“10. Joint Responsibility of Owners and Developers:-

(i)   To provide cooperation to each other for sanctioning the plans of  the
project with all required permissions and obtaining  occupation  certificate
for  handing  over  possession  of  the  tenements  to  the  Purchasers   of
Tenements.

(ii)  To clear all the dues of authorities concerned with  respect  of  plot
under development.

(iii) To convey the land with building to the societies  and/or  condominium
or apex body after completion of project as per rules applicable.”


27.   At this juncture, it is relevant to refer  to  certain  aspects  which
have been enumerated in the MoU.  The recital in the MoU is as follows:-

“& Whereas ‘YES BANK’ (hereinafter referred  to  as  the  ‘SAID  BANK’)  has
principally agreed to grant loan of Rs.85 crores to the Developers  for  the
development of the said  Township  for  which  purpose  the  Developers  are
required to mortgage the Land and Development of the said  Township  to  the
SAID  BANK  in  lieu  of  which  the  SAID  BANK  has  agreed  to   disburse
construction related loan which shall be disbursed as per  the  progress  of
the project.

& Whereas as the Development Agreement did not provide for mortgage  of  the
Land of the Owner and for availing the facility of loan  the  Developer  are
required to mortgage the entire project the Developer has proposed to pay  a
lump sum amount of Rs.137 crores to the Owner in lieu of his  share  in  the
said Township for which consideration the Owner has  agreed  to  permit  the
Developer to avail loan facility from the said Bank for the  development  of
the Said Township and to release/transfer his share in the said Township  in
favour of the Developer.”


28.   Clause 13 of the agreement  refers  to  resolution  of  disputes.   We
quote the said clause:-
“13.  RESOLUTION OF DISPUTES:-

That in case of any difference or dispute between the  parties  with  regard
to the meaning of construction of this MoU or regarding  any  terms  of  the
Development Agreement or with regard to the project  undertaken  under  this
MoU or Development agreement to be executed between the  parties,  the  same
shall be resolved by arbitration in conformity with the  provisions  of  the
Arbitration and Conciliation Act, 1996.”


29.   In this context reference to the reliefs prayed for  under  Section  9
petition gain significance.  Prayers (a) and (b) of the  paragraph  relating
to relief sought read as under:-
“(a) pending the hearing and final of the proposed arbitral proceedings  and
for a period of sixty days  after  the  award  therein,  the  respondent  by
himself and through his servant and or  his  agent  and/or  in  any  manner,
howsoever, be restrained by a temporary order or  injunction  from  entering
upon the property bearing Survey No. 1487/1 and  1487/2  at  Kasba,  Indore,
Patwari Halka No. 15/2, Tahsil & District  –  Indore,  Madhya  Pradesh,  and
from dealing with or moving the petitioners’ construction machinery  on  the
said property and  from  disturbing  or  interfering  with  the  Petitioners
possession thereof in any manner;

(b)  pending and  hearing  and  final  disposal  of  the  proposed  arbitral
proceedings and for a period of sixty days  after  the  award  therein,  the
Respondent by himself and or through his  servants  and/or  his  agents,  be
restrained by a  temporary  order  of  injunction  from  or  in  any  manner
directly or indirectly disposing off, alienating,  encumbering  or  creating
third party rights in any manner whatsoever in the property  bearing  Survey
No. 1487/1 and 1487/2 at Kasba, Indore, Patwari Halka  No.  15/2,  Tahsil  &
District – Indore, Madhya Pradesh, and from disturbing or  interfering  with
the Petitioners possession thereof in any manner.”


30.   At this stage, we are obligated to  state  that  the  High  Court  has
referred to the correspondences between the parties.   It  has  referred  to
the letter dated 19.6.2013 in extenso.  In the said letter it was  mentioned
that as the owner of the land had terminated the development  agreement  and
the MoU, he had taken over the entire physical and actual possession of  the
said land and the developer was called upon  to  remove  its  machinery  and
construction material lying  upon  the  said  land.   The  said  letter  was
replied to vide letter dated 16.7.2013 refuting the fact that  the  physical
possession of the land had been taken over by the  land  owner  and  stating
that the possession was still with the developer.   The Division  Bench  has
extensively reproduced from the petition preferred under Section  9  of  the
1996 Act.  We think it apt to reproduce the same:-
“10.  The Petitioners have shocked to receive  letter  dated  6  June  2013,
from Respondent’s Advocates, informing the Petitioner  that  the  Respondent
had terminated the MOU and the Development Agreement with  immediate  effect
and had allegedly taken over the possession of the Township in terms of  the
MOU.  By the said letter, the petitioners were  further  informed  that  the
Security Deposit of Rs.20 crores  stood  forfeited.   The  petitioners  were
informed that without prejudice to the termination, the  respondent  made  a
demand of payment of Rs.71 crores along with interest thereon.   A  copy  of
the letter dated 6 June 2013 is annexed and marked Exhibit-F hereto.

                      xxxxx       xxxxx           xxxxx

14.  The respondent, by Advocates  letter  dated  30  June  2013  sought  to
invoke the Arbitration  Clause  under  the  Development  Agreement  and  the
Memorandum of Understanding.  By  the  said  letter,  the  petitioners  were
informed that the  entire  physical  and  actual  possession  was  allegedly
already taken over by the respondent.   This  is  a  false  statement.   The
petitioners  were  further  called  upon  to  remove   the   machinery   and
construction material.  Hereto annexed and marked Exhibit-I  is  a  copy  of
the respondent’s Advocates letter dated 30 June 2013.

                      xxxxx       xxxxx           xxxxx

17.  The petitioners submit that they  had  completed  substantial  work  by
completing Building B-1, B-2 and B-3 (where only  top  slabs  are  pending),
construction of five slabs of Building C-1, commencing digging  and  footing
work of Building A-1.  The petitioners’ machinery and labour  are  at  site.
The petitioners are in possession of the  site.   Now,  the  respondent  has
suddenly demanded a sum of Rs.71 crores, allegedly due  to  the  respondent,
under the MOU dated 8 June 2012.  Though not entitled,  the  respondent  has
sought to forfeit the security deposit of Rs. 20 crores, in accordance  with
the MOU.

18.  In the circumstances, the petitioners submit that the  petitioners  are
entitled to, pending an adjudication in the  proposed  Arbitral  proceedings
and for a period of sixty (60) days after the award therein,  for  an  order
of  injunction,  restraining  the  respondent  by  himself  or  through  his
servants or agents from entering upon the property, subject  matter  of  the
Development Agreement and from dealing with and moving the machinery of  the
petitioners  used  in  construction  activity   and   from   disturbing   or
interfering with the petitioners possession thereof in any manner.”


31.   After discussing the facts in entirety, the Division Bench has  opined
thus:-
“... The development  agreement  also  stipulated  that  the  appellant  was
entitled to possession of the said land and accordingly the  respondent,  by
a separate possession receipt dated 28 February  2008  handed  over  to  the
appellant possession of the said land which is the  subject  matter  of  the
development agreement.  Thereafter, the parties entered into a MOU  dated  8
June 2012 which inter alia recited that the appellant was to  construct  the
township project consisting of residential and commercial  buildings  and  a
club house and further that the respondent would be paid  a  sum  of  Rs.137
crores in place of its  40%  share  under  the  development  agreement.   As
disputes arose between the parties, the said development agreement  and  the
MOU were terminated by the respondent by its Advocate’s letter dated 6  June
2013 and the respondent invoked arbitration.  It is pertinent to  note  that
in  paragraph  9  of  the  said  termination  letter,  the  respondent   has
specifically stated that as on that date (6 June 2013), the  respondent  had
taken over the possession  and  absolute  ownership  of  the  said  township
including the structures thereon, in accordance with the terms of  the  MOU.
This included the construction put up by the appellant  on  the  said  land.
In the said letter, at paragraphs 11 and 12, the respondent reiterated  that
it was the owner of the said land.


32.   And thereafter the Division Bench  proceeded  to  analyse  the  letter
dated 30.6.2013 and on that basis observed that:-
“... This letter of the respondent further stated that since the  Respondent
had terminated the development agreement and MoU, the respondent  had  taken
over the entire physical and actual possession of the said land and in  view
thereof called upon the Appellant to remove its machinery  and  construction
material from the said land.  Again, by its letter dated 16 July, 2013,  the
Appellant once again denied that the physical possession of  the  said  land
had been taken over by the Respondent as alleged  in  its  letters  dated  6
June 2013 and 30 June 2013 respectively.”


33.   The seminal issue is whether on  the  factual  score  which  has  been
exposited, the application filed under Section 9 of the 1996 Act before  the
High Court of Bombay can be  regarded  as  a  money  claim.   On  a  studied
scrutiny of the  agreement  and  the  MoU  it  is  clear  as  day  that  the
development agreement indubitably had created certain interests in the  land
in favour of the appellant.  The assertions made in  the  application  along
with the relief clause when read in entirety and appreciated in  a  holistic
manner, it becomes luminescent that the core dispute pertains to  possession
of the land, for the appellant claims to be in exclusive possession and  the
respondent, per contra, has asseverated that it had taken  over  possession.
It can irrefragably be stated that any order passed under Section 9  of  the
1996 Act will have the impact on the land.  It is  difficult  to  accede  to
the submission that it will not conceptually fall  within  the  category  of
“suit for land” as engrafted under Clause 12 of the Letters Patent.   It  is
clearly a dispute with regard to the possession which is evincible from  the
correspondences and the averments made in the  application  preferred  under
Section 9 of the 1996 Act.  Thus, there has to be determination  as  regards
possession and impliedly issue of  direction  for  recovery  of  possession.
Hence, the conclusion arrived at by the Division Bench on the basis  of  the
scrutiny of documents that the  dispute  is  embedded  with  regard  to  the
possession of the land because the fundamental  claim  pertains  to  certain
constructed space on the land and, therefore,  it  would  conceptually  fall
within the conception of “suit for land”  appearing  in  Clause  12  of  the
Letters Patent is unexceptionable.  Prayer (a) quoted above seeks  restraint
by a temporary order or injunction from entering upon the property.   It  is
difficult to accept the submission that it is a money claim and,  therefore,
the Bombay High Court would  also  have  the  territorial  jurisdiction  and
accordingly we unhesitatingly repel the same.

34.   Resultantly, we find no substance in the appeal  and  accordingly  the
same stands dismissed.  There shall be no order as to costs.

                                             .............................J.
                                                               [Dipak Misra]



                                              ............................J.
                                                          [Prafulla C. Pant]
New Delhi
October 15, 2015
-----------------------
[1]     AIR 1950 FC 83
[2]     AIR 1952 Bom. 365
[3]     (2001) 7 SCC 698
[4]     AIR 1929 Mad. 721
[5]     AIR 1960 Cal. 626
[6]     (2015) 8 SCC 219
[7]      (2004) 12 SCC 376

The High Court has not recorded any reason as to why leave to appeal was refused. In the instant case, there is no dispute that deceased- Kamla died within seven years of marriage in unnatural circumstances. By perusal of the judgment of the trial court, the trial court does not seem to have examined the evidence adduced by the prosecution in the light of the statutory presumption to be raised under Section 113B of the Evidence Act. In such circumstances, the High Court ought to have granted leave to appeal and thereafter re-appreciated the evidence and recorded its findings independently as regards guilt or otherwise of the accused. The High Court has not given any reason for refusing to grant leave to file appeal against acquittal. The impugned order is very cryptic by which the High Court refused leave to appeal and dismissed both appeal as well as the revision and in our view, the impugned order is liable to be set aside and the matter be remitted back to the High Court. Even though State of Rajasthan has not preferred any appeal before this Court, as the impugned order is a common order and in the interest of justice, we deem it appropriate to grant leave to appeal to the State as well.Yet another ground for remitting the matter back to the High Court is relevant to be noted. The judgment of the trial court was delivered on 24.03.2009 and the FSL Report dated 16.04.2009 (Annexure P-2 in the SLP Paper Book) received from the Regional State Forensic Science Laboratory, Rajasthan, Jaipur after the disposal of the case by the trial court, show positive test for the presence of organo phosphorous insecticide in the viscera. In our view, the High Court should have considered the FSL Report in proper perspective and as the first appellate court, it should have independently examined the matter and recorded its findings objectively.=In the result, without commenting on the merits of the case, the impugned order is set aside and leave to appeal is granted. Appeal filed by the State as well as criminal revision filed by appellant- Khumbha Ram shall be taken on the file of the High Court and after affording sufficient opportunities to both parties, the High Court shall dispose of the same in accordance with law. The appeal stands allowed accordingly.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2077 OF 2011



KHUMBHA RAM                           ..Appellant

                                   Versus

STATE OF RAJASTHAN & ORS.                           ..Respondents



                               J U D G M E N T

R. BANUMATHI, J.


                 This appeal by special leave has  been  filed  against  the
common order dated 03.02.2010 passed by the Jodhpur Bench of  the  Rajasthan
High Court in Leave to Appeal Application No.294/2009 and Criminal  Revision
Petition No.584/2009 whereby the High Court dismissed both leave  to  appeal
as well as the revision petition thereby confirmed the  order  of  acquittal
dated 24.03.2009 passed by  the  Additional  Sessions  Judge  (Fast  Track),
Balotara in Sessions Case No.71/2008 whereby  the  accused-respondents  were
acquitted  of  the  charges  punishable  under  Sections  498A,   304B   IPC
alternatively under Section 302 IPC.
2.               The factual background which led  to  the  filing  of  this
appeal are as under:- Marriage of second  respondent-Bhanwara  Ram  and  the
appellant’s daughter Kamla (since deceased)  was  solemnized  on  27.05.2007
and Kamla remained peacefully in her in-laws  house  for  sometime.   It  is
alleged that within short while thereafter, her  in-laws  started  to  treat
her with cruelty in  connection  with  demand  of  dowry.    On  27.07.2008,
appellant sent his son Jetha Ram (PW-5)  to  bring  back  his  daughter  and
Kamla was brought back to her parents house.  Within  two  weeks  thereafter
i.e. on 09.08.2008, respondent No.2 came to the house of  the  appellant  to
take back his wife (Kamla).  Deceased told second  respondent  that  she  is
preparing for Patwari examination and  as  such  she  was  not  prepared  to
return quickly.  Angered over the same, respondent No. 2  is  said  to  have
beaten Kamla and the appellant was compelled  to  send  his  daughter  Kamla
with respondent No.2  on  10.08.2008.  On  11.08.2008,  Kamla  died  in  her
matrimonial house and her body was found in a tank there and the parents  of
Kamla came to know about death of their daughter.
3.               On the complaint filed  by  the  second  respondent  before
Police Station Gida, a case No.5/08 was registered in  Gida  Police  Station
as death of Kamla was within seven years  of  marriage.  Investigation  into
the cause of death  was  initiated  by  Assistant  Collector  and  Executive
Magistrate, Bayatu and  investigation  report  was  submitted  stating  that
deceased-Kamla has not died due to drowning in the water.  On the  basis  of
the said report, a case under Sections 498A and 304B IPC was registered  and
investigation  was  taken  up.   After  completion  of  the   investigation,
chargesheet under Sections 302, 304B and 498A  IPC  was  filed  against  the
accused  persons  viz.  Bhanwara  Ram,  Deshraj  Ram,  Dhupudevi  and  Kamla
daughter of Deshraj Ram.
4.               Before the trial court  prosecution  has  examined  fifteen
witnesses.  The trial court vide its judgment  dated  24.03.2009  held  that
the prosecution has failed to prove that the accused  persons  harassed  the
deceased in connection with demand of dowry prior  to  her  death  and  that
there was no medical evidence as to  how  deceased  Kamla  died.  The  trial
court thus acquitted all the accused/ respondents of all the  charges  under
Sections 498A, 304B IPC in the alternate under Section 302 IPC  giving  them
benefit of doubt.  Aggrieved by  the  order  of  acquittal,  the  State  and
Khumbha Ram, father of the  deceased  preferred  leave  to  appeal  and  the
criminal revision before the  High  Court  which  vide  the  impugned  order
dismissed  State’s  leave  to  appeal  and  appellant’s  criminal   revision
petition.  Being aggrieved, the father of the deceased  has  preferred  this
appeal.
5.               Ms. Aishwarya Bhati,  learned  counsel  for  the  appellant
submitted that the  High  Court  erred  in  dismissing  the  appeal  without
properly appreciating the  evidence  and  the  fact  that  the  trial  court
completed the trial in a fast  track  within  six  months  of  the  incident
without  even  waiting  for  the  FSL  Report  from  the  Forensic   Science
Laboratory, Jodhpur which came nearly twenty days  after  the  judgment.  It
was submitted that the FSL Report dated 04.09.2008 shows  that  the  samples
of viscera of the deceased gave positive test for  the  presence  of  organo
phosphorous insecticide and the High  Court  erred  in  discarding  the  FSL
Report.  It was contended that almost  all  the  seven  witnesses  from  the
family of the appellant including the  appellant  have  consistently  stated
about the harassment meted out  to  the  deceased  in  connection  with  the
demand of dowry and the deceased died  in  mysterious  circumstances  within
seven years of marriage and the trial court and the High Court  should  have
raised the statutory presumption in law under Section 113B of  the  Evidence
Act.   In support of her contention, the  learned  counsel  placed  reliance
upon the judgment of this Court in Dinesh vs. State of Haryana,   (2014)  12
SCC 532; Rajinder Singh  vs.  State  of  Haryana,  (2013)  15  SCC  245  and
Mangilal vs. State of Rajasthan & Anr. (2001) 8 SCC 519.
6.               Per contra, Mr. Mahabir Singh, learned Senior  Counsel  for
the respondents contended that the prosecution  was  unable  to  prove  that
Kamla was subjected to harassment for any kind of dowry demand ‘soon  before
her death’ and the trial court has rightly acquitted respondents No.2  to  5
herein on the finding that no substantive  evidence  was  adduced  to  prove
that just prior to the date of death deceased-Kamla had  been  subjected  to
harassment in connection with the demand of dowry.   Drawing  our  attention
to the FSL Report  dated  30.08.2008  given  by  Rajasthan  Medicare  Relief
Society,  Jodhpur which stated that  “no  opinion  can  be  given”,  learned
counsel  for  the  respondents  submitted  that  in  the  absence   of   any
substantive evidence to  establish  the  charges,  the  High  Court  rightly
declined to grant leave to appeal.
7.               We have carefully considered the rival contentions  of  the
parties and perused the impugned order and the material on record.
8.               Section 378 of the Criminal Procedure Code deals  with  the
power of the High Court to grant leave in case  of  acquittal.  Sub-sections
(1) and (3) of Section 378 Cr.P.C. read as under:-
                 “378.  Appeal in case of acquittal.- (1) Save as  otherwise
provided in sub-section (2), and subject to the provisions  of  sub-sections
(3) and  (5),-

    …
(b)              the State Government  may, in any case, direct  the  Public
Prosecutor  to present  an appeal to the High Court  from  an  original   or
appellate order of an acquittal passed by any Court other than a High  Court
or an order of acquittal passed by the Court of Session in revision.
(3)              No appeal under sub-section (1) or  sub-section  (2)  shall
be entertained except with the leave of the High Court.”

Sub-section (3) of Section 378 Cr.P.C. puts a  restriction  on  entertaining
of appeals by imposing a condition that the leave of the High  Court  should
be first obtained before any appeal is entertained.
9.         The High Court while refusing leave  must  indicate  the  reasons
for refusal to grant leave.  Refusal of leave to appeal has  the  effect  of
foreclosing the right once for all and therefore there is a need  to  record
reasons when the High Court refuses to grant leave to appeal.  In  State  of
Rajasthan vs. Sohan Lal And Ors., (2004) 5 SCC 573, it was held  as  under:-

“ …The State does not in pursuing  or  conducting  a  criminal  case  or  an
appeal espouse any right of its own  but  really  vindicates  the  cause  of
society at large, to prevent recurrence  as  well  as  punish  offences  and
offenders respectively, in order to  preserve  orderliness  in  society  and
avert anarchy, by upholding the rule  of  law.  The  provision  for  seeking
leave to appeal is in order to ensure that no frivolous  appeals  are  filed
against orders of acquittal, as a  matter  of  course,  but  that  does  not
enable the High Court to mechanically refuse to grant leave by mere  cryptic
or readymade observations, as in this case (“the court  does  not  find  any
error”), with no further, on the face of it, indication of  any  application
of mind whatsoever. All the more so, when the orders of the High  Court  are
amenable  to  further  challenge  before  this   Court.   Such   ritualistic
observations and summary disposal which has the effect of, at times, and  as
in this case, foreclosing statutory right  of  appeal,  though  a  regulated
one, cannot be said to be a proper  and  judicial  manner  of  disposing  of
judiciously the claim before courts. The giving of reasons  for  a  decision
is an essential attribute of judicial and judicious  disposal  of  a  matter
before courts, and which is the only indication to  know  about  the  manner
and quality of  exercise  undertaken,  as  also  the  fact  that  the  court
concerned had really applied its mind. All the  more  so,  when  refusal  of
leave to appeal has the effect of foreclosing once and for all a  scope  for
scrutiny of the judgment of the trial court even at the instance  and  hands
of the first appellate  court.  The  need  for  recording  reasons  for  the
conclusion arrived at by the  High  Court,  to  refuse  to  grant  leave  to
appeal, in our view, has nothing  to  do  with  the  fact  that  the  appeal
envisaged under Section 378 CrPC is conditioned upon  the  seeking  for  and
obtaining of the leave from the court. This Court has repeatedly  laid  down
that as the first appellate court the High Court, even  while  dealing  with
an appeal against acquittal, was also entitled,  and  obliged  as  well,  to
scan through and if need be reappreciate the entire evidence,  though  while
choosing to interfere only the court should find an  absolute  assurance  of
the guilt on the basis of the evidence on record and not merely because  the
High Court could take one more possible or a  different  view  only.  Except
the above, where the matter of the extent and depth of consideration of  the
appeal  is  concerned,  no  distinctions  or  differences  in  approach  are
envisaged in dealing with an appeal as such merely because one  was  against
conviction or the other against an acquittal.”

10.              Expressing the same view, in State of Orissa  vs.  Dhaniram
Luhar, (2004) 5 SCC 568, this Court held as under:-
“…Reasons introduce clarity  in  an  order.  On  plainest  consideration  of
justice, the High Court ought to  have  set  forth  its  reasons,  howsoever
brief in its order, indicative of an application of its mind; all  the  more
when its order is amenable to further avenue of challenge.  The  absence  of
reasons has rendered the High Court order not sustainable.”

11.              On the anvil  of  the  above  principles,  considering  the
present case, in our view, the approach of  the  High  Court  is  completely
incorrect.  The High Court has not recorded any reason as to  why  leave  to
appeal was refused.  In the instant case, there is no dispute that deceased-
Kamla died within seven years of marriage  in  unnatural  circumstances.  By
perusal of the judgment of the trial court, the trial court  does  not  seem
to have examined the evidence adduced by the prosecution  in  the  light  of
the statutory presumption to be raised under Section 113B  of  the  Evidence
Act. In such circumstances, the High Court ought to have  granted  leave  to
appeal and thereafter re-appreciated the evidence and recorded its  findings
independently as regards guilt or otherwise of the accused.  The High  Court
has not given any reason for refusing to grant leave to file appeal  against
acquittal.  The impugned order is very  cryptic  by  which  the  High  Court
refused leave to appeal and dismissed both appeal as well  as  the  revision
and in our view, the impugned order is  liable  to  be  set  aside  and  the
matter be remitted back to the High Court.  Even though State  of  Rajasthan
has not preferred any appeal before this Court, as the impugned order  is  a
common order and in the interest of  justice,  we  deem  it  appropriate  to
grant leave to appeal to the State as well.
12.              Yet another ground for remitting the  matter  back  to  the
High Court is relevant to be noted.  The judgment of  the  trial  court  was
delivered on 24.03.2009 and the FSL Report dated  16.04.2009  (Annexure  P-2
in the SLP Paper Book) received from the  Regional  State  Forensic  Science
Laboratory, Rajasthan, Jaipur after the disposal of the case  by  the  trial
court,  show  positive  test  for  the  presence   of   organo   phosphorous
insecticide in the  viscera.  In  our  view,  the  High  Court  should  have
considered the FSL Report in proper perspective and as the  first  appellate
court, it should have independently examined the  matter  and  recorded  its
findings objectively.
13.              In the result, without commenting  on  the  merits  of  the
case, the impugned order is set  aside  and  leave  to  appeal  is  granted.
Appeal filed by the State as well as criminal revision filed  by  appellant-
Khumbha Ram shall be  taken  on  the  file  of  the  High  Court  and  after
affording sufficient opportunities to both parties,  the  High  Court  shall
dispose of the same in  accordance  with  law.  The  appeal  stands  allowed
accordingly.



                                                              …..…………………..J.

                                                     (R. K. AGRAWAL)



                                ..……………………..J.
                                                                         (R.
                                 BANUMATHI)
New Delhi;
October 15, 2015


ITEM NO.1A               COURT NO.4               SECTION II

                  S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  2077/2011

KHUMBHA       RAM                                               Appellant(s)
                                                   VERSUS

STATE OF RAJASTHAN & ORS.                         Respondent(s)
[HEARD BY HON'BLE R.K. AGRAWAL AND HON'BLE R. BANUMATHI, JJ.]

Date : 15/10/2015 This appeal was called on for judgment today.

For Appellant(s) Ms. Aishwarya Bhati,Adv.
                                  Mr. T. Gopal, Adv.

For Respondent(s)                 Mr. Nikhil Jain, Adv.
                                  For Ms. Madhusmita Bora,AOR

                                  Ms. Ruchi Kohli,AOR

                 Hon'ble Mrs. Justice R. Banumathi pronounced  the  judgment
of the Bench comprising Hon'ble R.K. Agrawal and Hon'ble R. Banumathi, JJ.

                 For the reasons recorded in the reportable judgment,  which
is placed on the file, without commenting on the merits  of  the  case,  the
impugned order is set aside and leave to appeal is  granted.   Appeal  filed
by the State as well as criminal revision filed by appellant -  Khumbha  Ram
shall be taken on the file of the High Court and after affording  sufficient
opportunities to both parties, the High Court shall dispose of the  same  in
accordance with law. The appeal stands allowed accordingly.

                 As a sequel to the above, pending application, if  any,  is
also disposed of.


(Renuka Sadana)                   (Parveen Kr. Chawla)
Court Master                                         AR-cum-PS

whether copyright exists in the title “Desi Boys”. A title of a work has been considered to be not fit to be the subject of copyright law as will be apparent from the cases considered later. A title by itself is in the nature of a name of a work and is not complete by itself, without the work. No instance of a title having been held to be the subject of copyright has been pointed out to us.=whether the copying of the title amounts to the taking of a substantial part of the whole work. General statements can nevertheless be found in non-copyright cases to the effect that there is no property in a name or title standing alone unless it is the subject of goodwill or a registered trade mark.”= “It is very difficult to protect titles of films by an action for infringement of copyright due to the requirements of originality and that a substantial part of a work be copied. If a well-known title of a film is used without authority, the owner’s remedy is likely to lie in passing off. Protection by registration as a trade mark may be available provided the title in sufficiently distinctive.”=We are thus, of the view, that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v Yates where Jessel M.R said “there might be copyright in a title as for instance a whole page of title or something of that kind requiring invention” or as observed by Copinger (supra).In the present case we find that there is no copyright in the title “Desi Boys” and thus no question of its infringement arises. The prosecution based on allegations of infringement of copyright in such a title is untenable.Section 482 were rightly dismissed since these facts alleged by the appellants depend on evidence at the trial. It is not possible to agree since it has throughout been the case of the respondent No. 1-Devkatta that he is claiming copyright only in the title of the synopsis of his story “Desi Boys” and he has not even seen the film of the appellants nor does he know the story. The learned counsel for the respondent was however right in his submissions that it is not necessary to furnish all the ingredients of the complaint and failing which the complaint is liable to be dismissed on that ground. It is not necessary to consider the decisions cited by the respondents on this point. 22. In the result, both the Criminal Appeals are allowed. The Criminal Case No. SW/332 of 2011 pending before the Learned Metropolitan Magistrate, Mumbai is hereby quashed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL  APPEAL No. 258 OF 2013


KRISHIKA LULLA & ORS.                              …. APPELLANTS


                                   VERSUS

SHYAM VITHALRAO DEVKATTA & ANR.              …. RESPONDENTS

                                    WITH

                      CRIMINAL  APPEAL No. 259 OF 2013


                                  JUDGMENT

S. A. BOBDE, J.

            These two Criminal Appeals are preferred by the accused  against
the judgment and order dated 22.3.2012 in  Criminal  Misc.  Application  No.
1295 of 2011 and 1296 of 2011 passed by the  learned  Single  Judge  of  the
Bombay High Court refusing to quash the complaint  and  the  process  issued
under Section 63 of the Copyright Act, 1957 (hereinafter  referred  as  “the
Copyright Act”) read with Sections 406 and 420 of  the  Indian  Penal  Code,
1860 (hereinafter referred as “IPC”).
2.           The  respondent  No.  1-Shyam  Vithalrao  Devkatta,   filed   a
complaint being Criminal Case No. SW/332 of 2011 under  Section  63  of  the
Copyright Act, later amended to add additional charges  under  Sections  406
and 420 read with Section 34 of the IPC, against  five  persons.   Upon  due
verification process was  issued  by  the  learned  Metropolitan  Magistrate
against all except the fifth accused. Of these accused, four approached  the
Bombay High Court by way of filing two criminal  misc.  applications,  under
Section 482 of the Code of Criminal Procedure,  1973  (hereinafter  referred
to as “Cr.P.C”) for quashing the complaint. The High  Court  having  refused
to quash the complaint, the appellants have approached this Court.
3.          The complainant/Respondent No.1 claims copyright in  a  synopsis
of a story written by him with the title “Desi Boys”.    According  to  him,
he had written a story with the title “Desi Boys” and had got  the  synopsis
of the story registered with the Film  Writers  Association  on  25.11.2008,
when a friend, one Ramesh Bhatnagar, told him that a comedy  film  story  is
required by the son of a film Director, David Dhawan, he mailed the  concept
of the story in the form  of  a  synopsis  as  an  attachment  to  an  email
addressed to Ramesh Bhatnagar on 14.10.2009 with  the  words  “Dear  Friend,
just see the attachment.”  Ramesh Bhatnagar forwarded the story, calling  it
“just an idea”  by  email  to  one  Ahsan  Sagar  on  15.10.2009.  What  was
forwarded was apparently the same short synopsis of  the  concept  with  the
title “Desi Boys”.   A copy on the record makes it clear that it was  by  no
means the entire story with all the dialogues and the screen  play.   Having
done so, his  friend  Ramesh  Bhatnagar  did  not  receive  any  reply  but,
suddenly the complainant saw the promos of a film bearing  the  title  “Desi
Boys”, actually spelt as “Desi Boyz”.  According to  him,  the  adoption  of
the title “Desi Boyz” is a clear infringement of the copyright in  the  film
title “Desi Boys”.  Admittedly, he has not seen the film and  he  states  in
his complaint, he cannot say whether  a  part  of  the  story  of  the  film
written by him has also been infringed.
4.          In the meanwhile, the appellants released their  film  with  the
title “Desi Boyz”  throughout  the  world  including  India  on  25.11.2011.
According to them, the film is  based  on  a  story  written  by  one  Milap
Zaveri, who wrote the story under an agreement dated 02.09.2009,  for  which
they have paid the author by cheque.  The shooting of the film commenced  on
07.11.2010 and the respondent No. 1 came to know about the film sometime  on
12.10.2011.  The details of the defence are not dealt with  here  since  the
matter must be decided on the basis of the tenability of the complaint.
5.          The  Court  of  Learned  Metropolitan  Magistrate  having  taken
cognizance, as stated above the appellants approached the Bombay High  Court
under Section 482 of the Cr.P.C  for  quashing  the  complaint  and  process
issued under Section 63 of the Copyright Act read with Sections 406 and  420
of IPC.   The learned Single Judge who heard the  matter  as  a  part  of  a
batch of matters in which parties had challenged the order  issuing  process
against them in several different cases,  dismissed  the  applications.   In
paragraph 97 of the judgment, the High Court considered the appellants  case
and merely pointed out that according to the  appellants,  the  story  which
they had converted into a film was written by an author  to  whom  they  had
paid a certain amount under an agreement even before the  complaint  of  the
respondent No. 1- Devkatta.  Thereupon, the High Court merely observed  that
the facts alleged by the respondent No. 1 can  only  be  determined  at  the
trial and on the face of the record there was neither  any  abuse  of  court
nor failure of justice and the applications were simply dismissed. There  is
no decision on the various issues raised  by  the  appellants,  hence  these
appeals.
6.          Mr. Raju Ramchandran, the learned  counsel  for  the  appellants
submitted that the respondent  No.1-Devkatta  has  claimed  infringement  of
copyright  in  the  title  of  the  synopsis  of  a   story   “Desi   Boys”.
Mr. Ramchandran, maintains that there is no copyright  in  the  title  of  a
story or for that matter a film  and  therefore,  no  complaint  is  tenable
under Section 63 of the Copyright Act which makes a deliberate  infringement
or the abatement of the copyright  in  a  work  punishable  as  an  offence.
According to the learned counsel, the appellants got the  story  written  by
an author who was paid for it and by now the story had been  converted  into
a film bearing the title “Desi Boyz” starring Akshay  Kumar,  John  Abraham,
Deepika Padukone, Anupam Kher, etc.   The film had been  released  all  over
the world including India on  25.11.2011,  after  theatrical  trailers  were
released on two occasions.  It was submitted that  the  story  of  the  film
released by the appellants bears no similarity whatsoever with the story  of
which Devkatta has written a synopsis, the characters  and  the  scenes  and
the settings being entirely different.
7.          The main issue that arises  for  determination  is  whether  the
respondent No.1-Devkatta has copyright in the title  “Desi  Boys”  which  he
has given to the synopsis of a story.  Further, if at all a complaint  under
section 63 of the Copyright Act is tenable against all  the  appellants  for
giving the title “Desi Boyz” to the film released by them.
8.          Section 13 of the  Copyright  Act,  lays  down  works  in  which
copyright subsists.  Section 13(1) reads as follows:-
            “13(1) Subject to the provisions of this section and  the  other
provisions of this Act, copyright shall  subsist  throughout  India  in  the
following classes of works, this is to say,-
original literary, dramatic, musical and artistic works;

cinematograph films; and

[sound recording]

9.          It is obvious that what is claimed by  Respondent  No.1-Devkatta
is only  copyright  in  the  title  “Desi  Boys”.   It  is,  therefore,  not
necessary to examine if a mere synopsis or a note of a story  amounts  to  a
literary work.  Admittedly, Devkatta has not  made  any  film  by  the  name
“Desi Boys” and his only grievance is about the  infringement  of  copyright
in the title which according to him is the soul of his story and copying  it
takes away everything from his story.
10.   The question that arises is whether  copyright  exists  in  the  title
“Desi Boys”.  A title of a work has been considered to be not fit to be  the
subject of copyright law as will  be  apparent  from  the  cases  considered
later.  A title by itself is in the nature of a name of a work  and  is  not
complete by itself, without the work.  No instance of a  title  having  been
held to be the subject of copyright has been pointed out to us.
11.   It must be  noted  that  in  India  copyright  is  a  statutory  right
recognized and protected by The Copyright Act, 1957.  It must  therefore  be
first seen if the title “Desi Boys” can be the subject of  copyright.  On  a
plain reading of Section 13, copyright subsists in  inter-alia  an  original
literary work.  In the first place  a  title  does  not  qualify  for  being
described as “work”.  It is incomplete in itself  and  refers  to  the  work
that follows.  Secondly, the combination of the two words “Desi” and  “Boys”
cannot be said to have anything original in it. They  are  extremely  common
place words in India.  It  is  obvious,  therefore,  that  the  title  “Desi
Boys”, assuming it to be a work, has nothing original in  it  in  the  sense
that its origin cannot be attributed to the respondent No.1. In  fact  these
words do not even qualify for  being  described  as  ‘literary  work’.   The
Oxford English Dictionary gives  the  meaning  of  the  word  ‘literary’  as
“concerning the writing, study, or content of literature, especially of  the
kind valued for quality of form”.  The mere use of  common  words,  such  as
those used here, cannot qualify for being described as  ‘literary’.  In  the
present case, the title of a mere synopsis of a story is said to  have  been
used for the title of a film. The title  in  question  cannot  therefore  be
considered to be a ‘literary work’ and, hence, no copyright can be  said  to
subsist  in  it,  vide  Section  13;  nor  can  a  criminal  complaint   for
infringement be said to be tenable on such basis.
12.   The decisions cited on behalf of the appellants show that it  is  well
settled that copyright does not subsist in a title of  work.    In  Hogg  v.
Maxwell reported in (1866-67) L.R.2 Ch. App. 307, the question  was  whether
the defendant had infringed the copyright of the plaintiff in the  title  of
a monthly magazine called “Belgravia”.   Referring to the title  “Belgravia”
the Court observed:
“It is quite absurd to suppose that the Legislature, in  providing  for  the
registration of that which was to be the indicium of something  outside  the
registry, in the shape of a volume or part of a volume, meant that,  by  the
registration of one word, copyright in that  one  word  could  be  obtained,
even although that one word should be registered  as  what  was  to  be  the
title of a book or of a magazine……….. I apprehend, indeed, that if  it  were
necessary to decide the point, it must be held that there cannot be what  is
termed copyright in a single word, although the word should  be  used  as  a
fitting title for a book. The copyright contemplated by the Act must be  not
in a single word, but in some words in the shape of a volume, or part  of  a
volume, which is communicated  to  the  public,  by  which  the  public  are
benefited, and in return for which a certain  protection  is  given  to  the
author  of  the  work.  All  arguments,  therefore,  for  the   purpose   of
maintaining this bill on the ground of copyright appear to  me  to  fall  to
the ground.”

13.   In Francis Day & Hunter Ltd.  v.  Twentieth  Century  Fox  Corporation
Ltd. and Ors. reported in AIR 1940 Privy  Council  55,   the  Privy  Council
considered the infringement of copyright in the  title  of  a  song  by  its
adoption for the title of a film.  The Privy Council observed:-
“In the  present  case  the  title  was  originally  applied  to  a  musical
composition, whereas it has been applied by  the  respondents  to  a  motion
picture or a film. The argument of the appellant company would be the  same,
it seems, if the application of the  title  complained  of  had  been  to  a
picture or a statue. On this reasoning it  would  be  said  that  the  title
"Adam" applied to a work of statuary would be infringed if that  title  were
used as that of a novel. These and other anomalous consequences justify  the
broad principle that in general a title is not by itself a  proper  subject-
matter  of  copyright.  As  a  rule  a  title  does  not  involve   literary
composition, and is not sufficiently  substantial  to  justify  a  claim  to
protection. That statement does not mean that in particular  cases  a  title
may not be on so extensive a scale, and of so important a character,  as  to
be a proper subject of protection against being copied. As Jessel M.R.  said
in Dicks v. Yates (which, as Lindley  L.J.  said  in  Licensed  Victuallers'
Newspaper Co. v. Bingham,  virtually  overruled  on  this  point  Weldon  v.
Dicks ) there might be copyright in a title "as, for instance,  in  a  whole
page of title or something of  that  kind  requiring  invention."  But  this
could not be said of the facts in the present case. There may  have  been  a
certain amount, though not a high degree, of originality in thinking of  the
theme of the song, and even in choosing the title, though it is of the  most
obvious. To "break the bank" is a hackneyed expression, and Monte Carlo  is,
or was, the most obvious place at which that achievement or  accident  might
take place. The theme of the film is different from that of  the  song,  and
their Lordships see no ground in copyright law to  justify  the  appellants'
claim to prevent the use by the respondents  of  these  few  obvious  words,
which are too unsubstantial to constitute an infringement,  especially  when
used in so different a connection.”
14.   That case is apposite in the sense  that  the  title  of  a  song  was
adopted as the title of a film like in the present case  the  title  of  the
synopsis of a story has been adopted as a title of a film  and  not  another
story.  Moreover the title comprised of common words as in the present  case
and they were held  that  they  were  too  unsubstantial  to  constitute  an
infringement.
15.   In E.M. Forster and Anr.  v.  A.N.  Parasuram  reported  in  AIR  1964
Madras 331 the author of “A passage to India”  E.M.  Forster  filed  a  suit
against the defendants for alleged infringement of copyright  in  the  title
of the book for adopting as  a  title  the  name  of  the  defendants  guide
written for students, as “E  M  Forster,  A  Passage  to  India,  Everyman’s
guide”.  The Court reviewed the law on the  subject[1],  and  observed  that
there was no copyright in respect of title vide  page  231  of  the  report.
Eventually the Court held :-
 “As we have earlier affirmed, there  is  no  copyright  in  the  title  and
purchasers, whether of the original work or of the guide, are most  unlikely
to be illiterate, or unacquainted with English.  It will be perfectly  clear
to them, from the words enclosed in brakets as a sub-title, that  they  were
acquiring, not the original work, but a “guide for University students…………”

16.   The same question arose in Kanungo Media (P) Ltd. v RGV  Film  Factory
& Ors. reported in  (2007)  ILR  1  Delhi  1122  where  the  Court  declined
injunction against  the  defendant  for  using  the  brand  name  and  title
“Nishabd” alleging similar to  the  film  of  the  plaintiff  therein.   The
learned Judge A.K.  Sikri,  J.  (as  His  Lordship  then  was)  referred  to
decisions of the American Courts and observed that the position is the  same
as under the copyright law in India:-
“12……… What, therefore, follows is that if a junior  user  uses  the  senior
user’s literary title as the title  of  a  work  that  by  itself  does  not
infringe the copyright of a senior user’s work since there is  no  copyright
infringement merely from the identity or similarity of the titles alone.”

The Court  then  considered  the  question  of  protection  of  title  as  a
trademark with which we are not concerned in this case.
17.   Subsequently, in R. Radha Krishnan  v.  Mr.  A.R.  Murugadoss  &  Ors.
reported in 2013-5-L.W. 429, the Madras High Court followed the decision  of
the Delhi High Court in the Kanungo Media Case and  rejected  an  injunction
for restraining the defendant from using the title of the  plaintiff’s  film
‘Raja Rani’. The Madras High Court considered various  other  decisions  and
held that the words ‘Raja Rani’ are words of common  parlance  which  denote
the king or the queen and cannot be protected under the  law  of  copyright.
The two judgments of the Madras High Court cited above and the  judgment  of
the Delhi High Court in our view, lay down the correct law.
18.   The learned  counsel  for  the  appellants  relied  on  passages  from
Copinger and Skone James on Copyright Sixteenth Edition  by  Kevin  Garnett,
M.A, Gillian Davies, D.L., Ph.D. and Gwilym Harbottle, B.A. (Oxon)  at  page
70:-
“Names and titles as literary works.  In the same vein is the reluctance  of
English courts to confer  copyright  protection  on  titles  of  newspapers,
magazines, books and the like.  In relation  to  books  in  particular,  the
title normally forms part of a copyright work consisting of the  book  as  a
whole and the issue here may be whether the copying of the title amounts  to
the taking of a substantial part of the whole work.  General statements  can
nevertheless be found in non-copyright cases to the effect that there is  no
property in a name or title standing alone  unless  it  is  the  subject  of
goodwill or a registered trade mark.”

The learned authors observed:-
            “The courts, have, however, been careful not  to  rule  out  the
possibility of such protection in  appropriate  circumstances,  although  in
practice no case has ever gone this far. The  only  concrete  example  which
has been given judicially is the now archaic practice of the  title-page  of
a book consisting of an extended passage of text.”

In relation to copyright  in  characters  and  titles  the  learned  authors
observed:-
      “It is very difficult to protect titles of  films  by  an  action  for
infringement of copyright due to the requirements of originality and that  a
substantial part of a work be copied.  If a well-known title of  a  film  is
used without authority, the owner’s remedy is likely to lie in passing  off.
 Protection by registration as a trade mark may be  available  provided  the
title in sufficiently distinctive.”

19.   We are thus, of the view, that no copyright subsists in the  title  of
a literary work and a plaintiff or a complainant is not entitled  to  relief
on such basis except in an action  for  passing  off  or  in  respect  of  a
registered trademark comprising such titles.  This does not mean that in  no
case can a title be a proper subject of protection against being  copied  as
held in Dicks v Yates where Jessel M.R said “there might be copyright  in  a
title as for instance a whole page  of  title  or  something  of  that  kind
requiring invention” or as observed by Copinger (supra).
20.   In the present case we find that there is no copyright  in  the  title
“Desi  Boys”  and  thus  no  question  of  its  infringement  arises.    The
prosecution based on allegations of infringement  of  copyright  in  such  a
title is untenable.
21.   The learned counsel for the  respondents  indeed  contended  that  the
applications under Section 482 were  rightly  dismissed  since  these  facts
alleged by the appellants depend on  evidence  at  the  trial.   It  is  not
possible to agree since it has throughout been the case  of  the  respondent
No. 1-Devkatta that he is claiming  copyright  only  in  the  title  of  the
synopsis of his story “Desi Boys” and he has not even seen the film  of  the
appellants nor does  he  know  the  story.   The  learned  counsel  for  the
respondent was however right in his submissions that it is not necessary  to
furnish  all  the  ingredients  of  the  complaint  and  failing  which  the
complaint is liable to be dismissed on that ground.   It  is  not  necessary
to consider the decisions cited by the respondents on this point.
22.   In the result, both the Criminal Appeals  are  allowed.  The  Criminal
Case No. SW/332 of 2011 pending before the Learned Metropolitan  Magistrate,
Mumbai is hereby quashed.


                                                …………………………….…..........…..J.
                                                     [MADAN B. LOKUR]


                                   …...................................………J.
                                                        [S.A. BOBDE]

NEW DELHI,
October 15, 2015

-----------------------
[1]    (i)Macmillan v. Suresh Chander Deb, ILR 17 Cat 951,   (ii ) Longman
v. Winchester, (1809)16 Ves 269,
       (iii) Dicks v. Yates, (1881) 18 Ch D 79