Entertainment Network India Ltd v. Super Cassettes Industries Ltd & Ors

order can be referred to.

¶6Mr. Sibal would submit that the earlier order cannot be treated as the precedent as the facts are not treated as precedent in law. Learned counsel to buttress the said contention has commended us to a decision of the Apex Court in

Prakash Chandra Pathak versus State of Uttar Pradesh, AIR 1960 SC 195, specially paragraph 8 whereby their Lordships have observed: "8. Learned counsel for the appellant cited before us a number of reported decisions of this Court bearing on the appreciation of circumstantial evidence. We need not refer to those authorities. It is enough to say that decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts. The general principles governing appreciation of circumstantial evidence are well established and beyond doubt or controversy. The more difficult question is one of applying those principles to the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to precedents in such matters. No case on facts can be on all fours with those of another. Therefore, it will serve no useful purpose to decide this case with reference to the decisions of this Court in previous cases. We have to determine whether on the facts and circumstances disclosed in the evidence which has been accepted by the Courts below; the crime charged against the appellant has been made out. We have carefully weighed the facts and circumstances pro and con forcefully brought to our notice by the learned counsel for the appellant and, in our opinion, no grounds have been made out for differing from the conclusions arrived at by the courts below.

In our opinion, the facts and circumstances proved in this case, establish the guilt of the appellant beyond all reasonable doubt. The appeal is accordingly dismissed."

¶7It is enough to say that the decisions even of the highest Court on questions which are essentially questions of fact, cannot be cited as precedents for each case must rest in the ultimate analysis upon their own particular facts. It needs special emphasis to say every fact will lead to its own decision. A decision rendered by a court of law or a tribunal is not to be read as a statute. A singular fact here or there, thus can make a gulf of difference. (see Goan Real Estate & Construction Limited versus Union of India, (2010) 5 SCC 388).

¶8We may be failing in our duty if we do not note the submission of Mr. Sibal that the data, material, evidence or anything that was ancillary and was referred to in the decision dated 25th August, 2010, namely, ENIL versus PPL, cannot by any stretch of imagination be applied to the pending appeal as there is a difference in facts, data, evidence, material and many other aspects. That apart, it is submitted that the rate of 2%, which was applied by the Copyright Board, cannot be applied to the respondent No. 1 as the Copyright Board is required to make a fresh adjudication as per law independently on merits.

¶9We need not enter into any debate or decide any cavil on merits. What we intend to clarify is that assuming a factual matrix is similar and other factors have some kind of similitude (on which we make no comment), there cannot be an interdiction with regard to a previous order passed by the tribunal. What will be the value of that order has to be judged by the tribunal. We hasten to clarify that it should not be treated as a precedent, as if the hands of the tribunal are closed to render a different decision. We may also clarify if there is dissimilarity on facts, the verdict has to be dissimilar because factual matrix invites a decision in law. Whether the facts are dissimilar or not are left to the adjudicatory decision of the tribunal. It is further added that citation of an order passed by an authority before a legal forum is absolutely different than a precedent. We say no more on this score as we expect the tribunal will be assisted by the counsel, who shall argue on the legal position on the law relating to precedent, etc.

¶10The appeal is allowed to the extent indicated hereinabove.

¶11Before parting with the case, we must note something which has come to our notice. We have been apprised that the Copyright Board has not yet been constituted. In view of the aforesaid, we command the competent authority of the Union of

India to constitute the Copyright Board within a period of eight weeks from the date of receipt of the copy of the order passed today. Mr. A.S. Chandhiok, learned Additional Solicitor General is requested to intimate the said authority.

Copy of this order be given dasti to the learned counsel for the parties under signature of the Court Master.

CHIEF JUSTICE

SANJIV KHANNA, J.

MAY 11, 2011 VKR

*IN THE HIGH COURT OF DELHI AT NEW DELHI + LETTERS PATENT APPEAL NO. 448/2011 Date of order: 11th May, 2011 ENTERTAINMENT NETWORK INDIA LTD...... Appellant Through Dr. A.M. Singhvi & Mr. Sandeep Sethi, Sr. Advocates with Ms. Pratibha M. Singh, Ms. Archana Sachdeva & Mr. Ashwin Kumar, Advocates. versus SUPER CASSETTES INDUSTRIES LTD & ORS. ..... Respondents Through Mr. Amit Sibal, Mr. K.K. Khetan & Mr. Sankalp Dalal, Advocates for respondent No. 1. Ms. Maneesha Dhir, Ms. Preeti Dalal & Ms. Mithu Jain, Advocates for respondent No. 2. Mr. Sagar Chandra, Advocate for respondent No. 3. Mr. Neil Hildreth & Ms. Shruti Sabarwal, Advocates for respondent No. 4. Mr. K. Datta & Mr. Diggaj Pathak, Advocates for respondent No. 5. Mr. Abhishek Malhotra & Mr. Harsh Vardhan Tripathi, Advocate for respondent Nos. 6 and 7. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? DIPAK MISRA, CJ.: CM Nos. 9371-72/2011 Exemption applications are allowed, subject to all just exceptions. CM No. 9370/2011 This is an application for condonation of delay in preferring the appeal and refilling of the same. Heard Dr. A.M. Singhvi and Mr. Sandeep Sethi, learned senior counsel along with Ms. Pratibha M. Singh, learned counsel for the appellant, Mr. Amit Sibal, learned counsel for the respondent No. 1, Ms. Maneesha Dhir, learned counsel for the respondent No. 2, Mr. Sagar Chandra, learned counsel for the respondent No. 3, Mr. Neil Hildreth, learned counsel for the respondent No. 4, Mr. K. Datta, learned counsel for the respondent No. 5 and Mr. Abhishek Malhotra, learned counsel for the respondent Nos. 6 and 7. In this application for condonation of delay numerous grounds have been urged for condoning the delay after narrowing the factual chronology and what happened before the Copyright Board. It is submitted that the subsequent events have compelled the appellant to file the present appeal so that there is no confusion or doubt. Mr. Amit Sibal, learned counsel for the respondent No. 1 would seriously oppose the prayer for condonation of delay on the foundation that the grounds urged in the application are not justified for condonation of delay and, therefore, the application should be thrown over board. Regard being had to the assertions made in the application, the nature of the lis involved, keeping in view the order passed by the learned single Judge and the proceeding pending before the Board, we are of the considered opinion that it is a fit case where delay should be condoned and accordingly it is so ordered. The application is disposed of accordingly. LPA No. 448/2011 In this intra-Court appeal, the challenge is to the orders dated 15th September, 2010 and 19th January, 2011 passed by the learned single Judge in CM No. 12373/2010 and CM No. 668/2011 in Writ Petition (Civil) No. 6255/2010 respectively. CM No. 12373/2010 is still pending before the single Judge. To appreciate the controversy, we may embark upon the factual matrix in brief. The Copyright Board adjudicated a controversy under Section 31 of the Copyright Act, 1957 between the present appellant and M/s Phonographic Performance Limited, etc. The order was passed on 25th August, 2010. Be it noted, the said order is the subject matter of challenge in appeal before the High Court of Madras. As the Madras High Court declined to pass any order of stay, the Phonographic Performance Limited and others preferred Special Leave to Appeal (Civil) No. 5727- 5735/2011 and the Apex Court by the order dated 5th April, 2011 did not interfere with the order of refusal of stay and directed the High Court to dispose of the appeal within a specified period of time. We have been apprised at the Bar the appeal is still pending before the High Court of Madras. 2. The petitioner, namely, Super Cassettes Industries limited, the res