Delhi High Court (July 20, 2001) 2001 (TLS)125219 2001-DLT-92-842 :: 2001-AD (Del)-5-708 BUDDHA FILMS PRIVATE LIMITED Vs. Prasar Bharti J. D. Kapoor ( 1 ) THROUGH this petition under Section 9 of the Arbitration and conciliation Act, 1996 read with Order 39 Rules 1 and 2,civil Procedure Code, the petitioner has sought interim injunction by way of restraining the respondent from super- imposing any Logo, commercial and branded graphics which is not supplied by the petitioner on the telecast of the cricketing match during the term of the contract and to telecast only such Logo, commercial and branded graphics which are supplied or provided by the petitioner. ( 2 ) THE short controversy involved for determination is whether the website address www. dd. now. com. displayed during the domestic telecast of the cricketing events which admittedly is in the form of super-imposition and passes through on the bottom of the screen every half an hour is merely a graphic without any commercial value or is a branded graphic with commercial value. ( 3 ) THE facts germane for the aforesaid contentious issue lie in moderate compass. ( 4 ) THE Board of Control for Cricket in India (hereinafter referred to as BCCI) possesses the exclusive rights of cricketing events. With the growing popularity of and viewership for cricketing events the Board entered into an agreement with the prasar Bharti a Broadcasting Corporation of India on 25. 9. 1999 whereby the respondent was vested with the rights to broadcast cricket matches over all modes of communication including television, radio and internet. In pursuance of this agreement, Prasar Bharti invited open tenders from various parties for marketing of air time during matches including one day internationals, test matches and in any other cricketing events under the aegis of BCCI, to be telecast on DD I and DD Sports channels. ( 5 ) BY virtue of Clauses 1. 1, 2. 1. Agreement the oetitioner, namely, M/s. Buddha Films Pvt. Ltd. (hereinafter referred as Buddha) has been given the exclusive domestic rights to sell or market the air time in the territory of India in respect of cricketing events and all commercials which are to be shown during the telecast of the matches are only those which are provided by the petitioner. However, the contentious clause is Clause 2. However, the contentious clause is Clause 2. 1 of the agreement which is as follows: "prasar Bharti/doordarshan shall uplink from the venue of the match clean video/audio feed (without Logo, Commercials and Branded Graphics) alongwith audio signals on DD Satellites. The signal will be made available at new Delhi to the bidder. Uplinking from match venue to any other satellite instead of DD satellite could be considered, if found feasible by Prasar Bharti. In such a case, the booking of satellite transponder will have to be arranged by the production marketing agency at their cost". Other relevant clauses are as under : clause 1. 1. : "prasar Bharti has secured exclusive rights for, inter alia, production and marketing of all cricketing events to be organized by BCCI in India till 30th september, 2004. This will include all Pomestic and International Matches played in India conducted by the BCCI over the Term. The list and tentative schedule of both the Domestic and International matches played in India conducted by the BCCI over the Term as received from BCCI is annexed to part I as Annexure I. Any change in schedules/timings of the matches will not entitle the successful bidder for any claim or damages against Prasar Bharti". Clause 7: terms OF THE GRANT OF RIGHTS the grant and exercise of rights hereunder and the telecast of the commercials by Prasar Bharti shall be subject to the following terms and conditions : 7. 1 Admissible Commercial Time (CT) (a) CT of 6000 sees. per match day inside live event (End of Over, Fall of wicket, Drinks Break etc.) (b) CT of 300 sees. before the start and after the end of each Session for one day international format matches and before the start of day s plan and after the end of day s play for test matches. (c) CT of 180 sees. in each highlight of half an hour. However, the highlights capsule will be of minimum one hour. (d) CT of 3000 sees. during the repeat telecast of One Day Internationals and Test Matches of DD Sports (Only one repeat ). (e) CTof600 sees. each during the lunch break and tea break in test matches and one day internationals. ( 6 ) THUS having agreed to exclusive air-time marketing rights of the petitioner for a minimum assured revenue of Rs. during the repeat telecast of One Day Internationals and Test Matches of DD Sports (Only one repeat ). (e) CTof600 sees. each during the lunch break and tea break in test matches and one day internationals. ( 6 ) THUS having agreed to exclusive air-time marketing rights of the petitioner for a minimum assured revenue of Rs. 450 crores, respondent was completely prohibited from permitting "any kind of commercial" during the telecast of all cricketing events throughout the terms of the contract either by itself or through any other company. ( 7 ) DISPUTE arose when during the India-South Africa series in 2000, Prasar bharti started super-imposing the commercial www. dd. sports. com. Immediately the petitioner shot off a letter to the respondent objecting to the super-imposition of the Logo being in violation of the agreement. In return the petitioner was told that it has no right to object as the same does not form part of air-time sales for India. ( 8 ) THE next series was India-Zimbabwe series. It was to take place in November, 2000. Prasar Bharti sought permission from the petitioner Buddha to permit some commercial to be supered as it knew that it was prohibited to do so as per the terms and conditions of the contract. Some meetings took place between the officials of prasar Bharti and representatives of Buddha. However, the letter addressed by prasar Bharti under the garb of seeking such permission was later withdrawn. But to utter shock of Buddha during direct telecast of match of India-Zimbabwe on 28. 11. 2000 the website www. now. dd. com. was telecast by super-imposition on the signal of the match at 10 O clock, 11. 34,13. 01,14. 38,15. 29 and 16. 24 hours. It was again telecast on 29th November, 3rd December and 5th December of 2000. It is alleged that this deliberate act of respondent was in complete violation of the terms and conditions of the contract as also dishonest and malafide. ( 9 ) ACCORDING to Buddha, the Prasar Bharti has converted the DD Sports channel into an encrypted pay channel which has resulted in complete loss of viewership for that channel and as such the advertising revenue for the India- zimbabwe plummeted considerably causing recurring enormous financial losses to Buddha and if not injuncted, it would cause irreparable loss and injury to the petitioner. ( 10 ) THE stand taken by Prasar Bharti is that they have not violated any term of the agreement as the respondent has granted exclusive rights to the petitioner for marketing of air-time in the territory of Union of India in respect of cricketing events conducted by BCCI and the rights granted to the Buddha by Prasar Bharti under the agreement as contained in Clause 7 confine to "commercial Time of 6000 seconds per match day inside live event". However at the same time Prasar Bharti also entered into an agreement with M/s. TWI/stracon for international marketing of the cricket matches. As per this agreement Prasar Bharti is required to show a super- imposition of said URL of address www. dd. sports. com. or www. dd. now. com. every half an hour of the telecast of the matches which passes through on the bottom of the screen. ( 11 ) IT is further averred that this is merely an address for the official website of the Prasar Bharti and TWI/stracon was engaged to develop it for Prasar Bharti and, therefore, there is no commercial value attached to this super-imposition as Prasar bharti only wants to inform the viewership that they can access the coverage on the official website also. Further that it at no point of time of the telecast of the match disturbs the picture covering the match for the viewer J. ( 12 ) MAIN contention of Mr. Kapil Sibal, Senior Advocate and Counsel for the petitioner centres around the interpretation of the graphic displayed by the respondent. According to Mr. Sibal the graphic in question is abranded graphic and has commercial value attached to it and this is manifestly demonstrated in a letter dated 18/02/2000 addressed by Frasar Bharti to TWI/stracon culminating into the agreement dated 19th February, 2000 whereby TWI/stracon India was granted overseas marketing rights / exclusive international rights on a non-exclusive basis. These rights were given subject to certain conditions, some of which are as under: (ii) Prasar Bharti has exclusive and complete rights for licensing the internet rights to an unlimited number of users. (iii) The licensees of the internet rights shall be directed to approach Stracon for getting multi-media for use on the internet on such fees as may be prescribed by Stracon. (iii) The licensees of the internet rights shall be directed to approach Stracon for getting multi-media for use on the internet on such fees as may be prescribed by Stracon. These licences shall not be denied use of multi- media, which has since been licensed to Stracon as part of the Global. Marketing arrangement. (iv) The additional revenue generated through sub-licensing of multi- media rights to internet licensees / sub-licensess shall be shared between prasar Bharti and Stracon/twi in the ratio of 50:50 (net ). ( 13 ) THE above arrangements were besides the official website which was to be developed and operated by TWI/stracon for Prasar Bharti, without any financial or other liability to Prasar Bharti. This website was also to contain Doordarshan logo on Home Page, Prasar Bhartiy identity alongwith Stracon/twi nominated identity in the URL/home Page. The website was to be promoted both by doordarshan and TWI/stracon. ( 14 ) IT is contended by Mr. Sibal that the display of website in question entrenches upon the exclusive marketing right for air time conferred upon the petitioner by virtue of the contract dated 17/02/2000. As per Clauses 1. 1 and 2. 1 Prasar Bharti is required to uplink from venue of the match clean video/audio feed (without Logo, commercial and branded graphics) alongwith audio signals on co satellites. ( 15 ) MR. Sibal was assiduous in contending that the graphic in question is dearly a branded graphic having commercial value as in terms of the letter dated l8th February, 2000 and the agreement dated 19th February, 2000 between Prasar bharti and TWI/stracon, TWI/stracon is entitled to sub-license the multi-media rights and the revenue therefrom is to be shared between Prasar Bharti and Stracon in the ratio 50:50. ( 16 ) ACCORDING to Mr. Sibal the fact that the website in question is not the official website of Doordarshan is clearly reflected in the following note: "this website is the official website of NOW. com. @ Cyber Tech Group limited, 2000. All rights reserved. No commercial reproduction, adaptation, distribution or transmission of any part or parts of this website or any information contained herein by any means whatsoever is permitted without the prior written permission of the Cyber Extremes Limited. Framing of this website or any part of it on another site or mirroring this website on another server is expressly prohibited. No commercial reproduction, adaptation, distribution or transmission of any part or parts of this website or any information contained herein by any means whatsoever is permitted without the prior written permission of the Cyber Extremes Limited. Framing of this website or any part of it on another site or mirroring this website on another server is expressly prohibited. For the full terms of the use of this website please click here. To send your feed back please click here. " ( 17 ) IN this backdrop Mr. Sibal has dwelt at length to convince that the graphic in question is a branded graphic with a commercial value attached to it and is not a graphic or address simplicitor. ( 18 ) ACCORDING to Mr. Sibal the reference in the letter dated 18/02/2000 that the websites will be promoted both by Doordarshan and TWI/stracon across the broadcast footprint by way of mentioning website address only on Live TV signal of the matches as official DD website shows that promoting Doordarshan website is different from promoting any brand or a commercial and to say that promotion of abrand or a commercial does not amount to advertisement is falsified by that very letter as in para (iv), it was agreed that the additional revenue generated through sub-licensing of multi-media rights to internet licensees/sub-licensees shall be shared between Prasar Bharti and Stracon/twi in the ratio of 50:50 (net ). ( 19 ) AS against this, the main thrust of contention of Mr. Kirit Rawal, learned additional Solicitor General appearing for respondent-Prasar Bharti was that the address of the official website does not come within the category of Logo or commercial or Branded Graphic and since these supers were not made during the air-time reserved for Buddha, it did not cause any hindrance to the air-time of buddha and as such the question of any loss of revenue to Buddha does not arise. According to Mr. Rawal since the scroll is an address simplicitor of the official website or Prasar Bharti, it has no commercial value or consumerism. ( 20 ) MR. Rawal vehemently urged that Clause 2. 1 of the contract does not prohibit Prasar Bharti from putting the website address as website is neither a Logo nor a commercial nor a branded graphic. As to the right of the petitioner under clause 7. 1 of the contract Mr. ( 20 ) MR. Rawal vehemently urged that Clause 2. 1 of the contract does not prohibit Prasar Bharti from putting the website address as website is neither a Logo nor a commercial nor a branded graphic. As to the right of the petitioner under clause 7. 1 of the contract Mr. Rawal contended that under this clause specific time is given to the petitioner whereas the rest of time is in no manner subject to the petitioner s user and therefore the objection of the petitioner amounts to say that putting the website address in the remaining time is not permissible, but it is clearly contrary to the contract. ( 21 ) IT is further contended by Mr. Rawal that confusion is sought to be developed by the petitioner showing a print out of an internet down load of the website www. now. com. whereas the website mentioned in the display on the TV screen by the respondent is www. dd. now. com. and this website is exclusively for the purpose of DD and has been specially designed and developed as a website dedicated to DD and, therefore, by giving a down load of www. now. com. and not of www. dd. now. com. does not carry the case of the petitioner any further. ( 22 ) MR. Rawal further urged that promoting DD s own website is totally different from promoting any brand or any commercial as it can hardly be equated with an advertisement to promote a brand name. ( 23 ) AS is apparent website in question is the sub-licensee of TWI/stracon and the exclusive rights are vested in Cyber Tech Group Limited 2000 and not in doordarshan. ( 24 ) ABOVE website was displayed on 16/02/2001 and continued to be displayed till 12/03/2001. It was being projected as official site of the www. now. com. and not of the Doordarshan. However for the first time on 1 2/03/2001 the Doordarshan suddenly changed the address legend and mentioned that this was the official website of the Indian Cricket produced by the Doordarshan. ( 25 ) THIS is a significant event that helps in getting teeth more deeply into reality and counters the contention of Mr. com. and not of the Doordarshan. However for the first time on 1 2/03/2001 the Doordarshan suddenly changed the address legend and mentioned that this was the official website of the Indian Cricket produced by the Doordarshan. ( 25 ) THIS is a significant event that helps in getting teeth more deeply into reality and counters the contention of Mr. Rawal that the display of address of the website that flashes only for 5 to 7 seconds to reach the live telecast does not amount to any commercial advertisement or display of branded graphic. ( 26 ) WEBSITE www. now. com. demonstrates that now is a brand like any other brand say yahoo and to say that the web. "ite in question is official website of indian Cricket produced by the doordarshan is not correct. It is the website of www. now. com. as was displayed on 16/02/2001. ( 27 ) THERE is no gainsaying the fact that the display of website address tantamount to an advertisement. As per the New International Webster s comprehensive Dictionary the word "display" means a public notice, as in a newspaper or on a radio or television programme, giving notice; notification; information or that any system or method of attracting public notice to an event to be attended, or the desirability of commercial products for sale; promotion; also, advertisements collectively. The word commercial has been defined in the same dictionary as of or belonging to trade or commerce; mercantile made or put up for the market; in radio and television, an advertisement. The word advertisement means a public notice, as in a newspaper or radio or television programme or giving notice or notification and includes the system of method of attracting public notice etc. ( 28 ) THE effect of this website address is that the viewer can access the said website on the internet and can in the context of operational technology see the match without having switched on the Doordarshan for which the petitioner has exclusive right of air-time and this means encroaching upon the right and competing at the cost of the petitioner in terms of licence and viewership. The argument that the Stracon has obtained multi-media rights from Doordarshan and these rights know no boundaries and such rights can be exploited even in India though the contract is for international marketing air time runs counter to the terms of agreement. The argument that the Stracon has obtained multi-media rights from Doordarshan and these rights know no boundaries and such rights can be exploited even in India though the contract is for international marketing air time runs counter to the terms of agreement. ( 29 ) CLAUSE 3. 1 of the tender documents talks of multi-media rights whereas clause 3. 2 talks of air time. These clauses confer rights of multi-media on the TWI/ stracon in territories other than India. Clause 4. 5 of the tender document says that no advertisement promoting any internet site will be allowed. Letter dated 18. 2. 2000 shows that this website will be promoted by Doordarshan and Stracon agreed to broadcasting by way of address official Doordarshan website. Thus there is no doubt that the display of website address is not only a commercial venture but website address itself has a commercial value. ( 30 ) THUS, all this leads to most ineluctable conclusion that the display of website in question if allowed on domestic telecast it would amount to advertisement or displaying of the branded graphic. Clause 2. 1 of the agreement prohibits displaying of any brand or graphic as the petitioner has exclusive rights of marketing air time and the commercials can be booked and shown by the petitioner when the match is not telecast. The choice is of the petitioner whether to show the commercials in the form of Logo during the period when the match in on but confining to end of over, fall of wicket, drink break etc. (Clause 7. 1 (a) of the agreement ). ( 31 ) THE word etc. cannot be stretched to mean any time when the match is on. Word etc. is also confined to the eventuality when the focus is not on the actual play of the match. Further the scope of exclusive marketing of air time is that as long as there is no advertisement or no commercial activity the petitioner may not show but the moment what is displayed is commercial activity then the marketing right of the petitioner is impinged as without permission of the petitioner such activity cannot be allowed. In other words the respondents are entitled to advertise on air time of the petitioner but not without the permission of the petitioner. The marketing time is exclusive right of the petitioner. In other words the respondents are entitled to advertise on air time of the petitioner but not without the permission of the petitioner. The marketing time is exclusive right of the petitioner. Address of website itself is commercial unless it is official website for which the respondent Doordarshan may not charge anything. Thus Clauses 2. 1 and 7. 1 have been misinterpreted by the respondent that the contract is only for commercial time and not for the rest of the time. ( 32 ). As regards the balance of convenience and sufferance of irreparable loss mr. Rawal, learned Counsel for the respondent thinks that the scale tilts more towards the respondent than the petitioner. He has referred to a letter dated 31/07/2000 wherein the petitioner had quantified the loss to be suffered by it to the tune of Rs. 1 crore and if the dispute is referred to the Arbitrator the petitioner can recover the said loss after adjusting towards the licence amount and, therefore, the question of its suffering irreparable loss or injury does not arise. ( 33 ) ON the other hand Mr. Sibal contends that if the DD is not restrained from displaying the website it will result in irreversible damage. ( 34 ) MR. Rawal placed reliance on the judgment of the Division Bench of this court delivered in an appeal [fao (OS) 17 / 2001 ] filed by this very petitioner against the respondent challenging the order passed in the petition under Section 9 of the arbitration Act wherein the Division Bench declined to grant relief of the nature which according to Mr. Rawal the petitioner has sought in the instant petition. I am afraid the controversy involved in the above referred case was whether Prasar bharti was obliged to continue Sports Channel on a free to air basis or was entitled to convert this Channel into an encrypted or pay channel during the currency of the agreement dated 17/02/2000 between the parties. It was held that this question is to be finally answered by the Arbitral Tribunal as this dispute comes within the contents of the contract. It was argued that if theinjunction was granted as prayed by the appellant it would have impact on global contracts and, therefore, reversing the process at this stage will lead to more complications phis multiplicity of litigation. It was argued that if theinjunction was granted as prayed by the appellant it would have impact on global contracts and, therefore, reversing the process at this stage will lead to more complications phis multiplicity of litigation. ( 35 ) IN the instant case the controversy is of different and distinct kind. The question involved in the instant proceedings is whether the Website Address www. dd. now. com. displayed during the domestic cricket events which is in the form of super-imposition that passes through every half an hour is merely a graphic without any commercial value or a branded graphic with commercial value. As it has already been observed that the said site is not the official site of the Doordarshan and is a branded graphic having commercial value, the ratio of the aforesaid authority is not at all applicable. ( 36 ) AS regards the concept of irreparable loss or injury it cannot be solely stretched to the quantifiability of the loss to be suffered by person on account of the breach of the terms of the contract. The concept varies from case to case. In view of the facts of the instant case what is material for that purpose is whether the action amounting to infringement of legal rights of a party is of recurring or irreversible nature and if it is so the element of irreparable loss or injury for the purpose of ad interim injunction order will exist even if it is ultimately found to be quantifiable. ( 37 ) IN the instant case the action of displaying the website on day-to-day basis is irreversible action and at the same time not only causes financial loss but also results in irreparable injury in terms of customers and viewership. Every moment the site is displayed not only the right of the petitioner is impinged but irreparable loss or injury is also caused. ( 38 ) LASTLY Mr. Rawal has contended that the instant petition is an abuse to obtain interim orders as the petitioner does not intend nor has taken any steps for arbitration and that if there is no manifest intention to take steps for arbitral proceedings contemplated under Section 9 of the Arbitration Act, no interim injunction or relief under Section 9 of the Arbitration Act can be granted. ( 39 ) INCIDENTLY similar contention was raised by Mr. ( 39 ) INCIDENTLY similar contention was raised by Mr. Rawal in the aforesaid fao (OS) filed by the petitioner against the Prasar Bharti and reliance was placed upon Sundram Finance Limited v. NEPC India Limited, I (1999) SLT 179= (1999) 2 scc 479 , wherein it was held that the initiation of arbitration proceedings would not be a pre-condition for filing petition under Section 9 of the Act. What is important is manifest intention to have the dispute referred to an Arbitral Tribunal. The Court further observed that a situation may so demand that a party may choose to apply under Section 9 for an interim measure even before issuing a notice contemplated by Section 21 of the said Act. It was held that once such an application is made the court is to satisfy itself that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration. Once it is so satisfied the Court will have the jurisdiction to pass orders under Section 9 giving such interim protection as the facts and circumstances warrant. ( 40 ) EVEN the plea that the petitioner has taken to this course merely to avoid the outstanding payment of more than Rs. 15 crores or so, was also taken into account by the Division Bench and it was observed that it has to be decided in the arbitration proceedings as to whether this amount is due or not and the explanation of the petitioner in this regard is an arguable issue. ( 41 ) AFTER having held up the matter in all its possible aspects, I find that not only the balance of convenience lies in favour of the petitioner but also exists in its favour element of irreparable loss and injury. As a result the petition is allowed. Respondents are injuncted from super-imposing any Logo, commercials and branded graphics including the graphic in question which is not supplied by the petitioner on the telecast of the cricket matches during the term of the contract and to telecast only such Logos, commercials and branded graphics which are supplied/provided by the petitioner. LA. 1458/2001: ( 42 ) AS regards the application under Order 1 Rule 10,civil Procedure Code moved by Stracon (India) Limited and Transworld International Inc. LA. 1458/2001: ( 42 ) AS regards the application under Order 1 Rule 10,civil Procedure Code moved by Stracon (India) Limited and Transworld International Inc. for impleadment as respondents and consequential clarification of the ex-parte order dated 13/12/2000 the applicants have independent remedy as the applicants have entered into an independent contract. As a matter of fact the arguments of Dr. Singhvi, Counsel for the applicants were adopted by the Counsel for the respondent as the main defence of the respondent was that the petitioner can have no Logos of any amount of advertisement or information which either DD or the applicants may give about the website either in print media or anywhere else and that merely because the applicants give a locating address for few seconds which is not out of the air time rights of the petitioner itself means that he has no Logos. It was also argued by Dr. Singhvi that the balance of convenience lies in favour of the respondents as the consequence of the stay will be irreversible in case the Arbitrator rules in favour of the respondents inasmuch as the entire days and matches would be lost when no viewer would be guided to the website no viewer would be able to have the access of the information of the website and further that in case the respondent loses the petitioner can be compensated. As these contentions were raised by Mr. Rawal also, the applicants may appraoch the Arbitrator for being heard in the matter and the arbitrator shall be well within his right to decide whether the applicants are necessary parties to the dispute or not. With these observations the application is disposed of. O. M. P. allowed. LA. 1458/2001 disposed of. --- *** --- .